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O 


OF  THE 


ELECTORAL    COMMISSION 


MBit  Alt  V 


APPOINTED  UNDER  ..   ,_ „ 

OF 


CALIFORNIA. 


THE  ACT  OF   CONGRESS   APPEOVED   JANUARY  29,  1877,  ENTITLED  "AN  ACT  TO 

PROVIDE  FOR  AND  REGULATE  THE  COUNTING  OF  VOTES  FOR  PRESIDENT 

AND  VICE-PRESIDENT,  AND  THE  DECISIONS  OF  QUESTIONS  ARISING 

THEREON,  FOR  THE  TERM  COMMENCING  MARCH  4,  A.  D.  1877." 


FORTY-FOURTH  CONGRESS,  SECOND  SESSION. 


WASHINGTON: 

GOVERNMENT     PRINTING      OFFICE. 

1877. 


& 


ELECTORAL  COMMISSION. 


MEMBERS  OF  THE  COMMISSION. 

HON.  NATHAN  CLIFFORD,  Associate  Justice  Supreme  Court,  First  Circuit. 

HON.  WILLIAM  STRONG,  Associate  Justice  Supreme  Court,  Third  Circuit. 

HON.  SAMUEL  F.  MILLER,  Associate  Justice  Supreme  Court,  Eighth  Circuit. 

HON.  STEPHEN  J.  FIELD,  Associate  Justice  Supreme  Court,  Ninth  Circuit. 

HON.  JOSEPH  P.  BRADLEY,  Associate  Justice  Supreme  Court,  Fifth  Circuit. 

HON.  GEORGE  F.  EDMUNDS,  United  States  Senator.  t 

HON.  OLIVER  P.  MORTON,  United  States  Senator. 

HON.  FREDERICK  T.  FRELINGHUYSEN,  United  States  Senator. 

HON.  THOMAS  F.  BAYARD,  United  States  Senator. 

HON.  ALLEN  G.  THURMAN,  United  States  Senator. 

HON.  FRANCIS  KERNAN,*  United  States  Senator. 

HON.  HENRY  B.  PAYNE,  United  States  Representative. 

HON.  EPPA  HUNTON,  United  States  Representative. 

HON.  JOSIAH  G.  ABBOTT,  United  'States  Representative. 

HON.  JAMES  A.  GARFIELD,  United  States  Representative. 

HON.  GEORGE  F.  HOAR,  United  States  Representative 


OFFICERS  OF  THE  COMMISSION. 

HON.  NATHAN  CLIFFORD,  President. 
JAMES  H.  McKENNEY,  Secretary. 

B.   E.   CATTIN,         t    »  oojofnnf  Kprrrtarifi 

G.  A.  HOWARD,  \  * 

WILLIAM  H.  REARDON,  Marshal. 

A.  S.  SEELY,  ,  ^ 

/-,    m  A  T  T  A  T^T^TI^   (  Deputy  Marshals. 
J.  C.  TALIAFERRO,  J 

D.  F.  MURPHY,  Stenographer: 


'Substituted  February  26,  1877,  inconsequence  of  Mr.  THUKMAN'S  physical  disability. 


PROCEEDINGS  OF  THE  COMMISSION 


APPOINTED  UNDER 


THE  ACT  OF  CONGRESS  APPROVED  JANUARY  29,  1877,  ENTITLED  "AN  ACT  TO  PROVIDE  FOR  AND 

REGULATE  THE  COUNTING  OF  VOTES  FOR  PRESIDENT  AND  VICE-PRESIDENT,  AND 

THE  DECISIONS  OF  QUESTIONS  ARISING  THEREON,  FOR  THE 

TERM  COMMENCING  MARCH  4.  A.  D.  1877." 


The  act  of  the  Congress  of  the  United  States,  approved  by  the 
President  on  the  29th  of  January,  A.  D.  1877,  under  which  the  Elect 
oral  Commission  was  organized,  is  in  the  following  words : 
An  act  to  provide  for  and  regulate  the  counting  of  votes  for  President  and  Vice- 
President,  and  the  decision  of  questions  arising  thereon,  for  the  term  commenc 
ing  March  4,  A.  D.  1877. 

JBe  it  enacted  by  the  Senate  and  House  of  Representatives  of  the  United  States  of 
America  in  Congress  assembled.  That  the  Senate  and  House  of  Representatives  shall 
meet  in  the  Hall  of  the  House  of  Representatives  at  the  hour  of  one  o  clock  p.  m. 
on  the  first  Thursday  in  February,  A.  D.  1877;  and  the  President  of  the  Senate 
shall  bo  their  presiding  officer.  Two  tellers  shall  be  previously  appointed  on  the 
part  of  the  Senate  and  two  on  the  part  of  the  House  of  Representatives,  to  whom 
shall  be  handed,  as  they  are  opened  by  the  President  of  the  Senate,  all  the  certifi 
cates  and  papers  purporting  to  be  certificates  of  the  electoral  votes,  which  cer 
tificates  and  papers  shall  be  opened,  presented,  and  acted  upon  in  the  alphabetical 
order  of  the  States,  beginning  with  the  letter  A ;  and  said  tellers,  having  then  read 
the  same  in  the  presence  aild  hearing  of  the  two  Houses,  shall  make  a  list  of  the 
votes  as  they  shall  appear  from  the  said  certificates ;  and  the  votes  having  been  as 
certained  and  counted  as  in  this  act  provided,  the  result  of  the  same  shall  be  de 
livered  to  the  President  of  the  Senate,  who  shall  thereupon  announce  the  state  of  the 
vote  and  the  names  of  the  persons,  if  any,  elected,  which  announcement  shall  bo 
deemed  a  sufficient  declaration  of  the  persons  elected  President  and  Vico-President 
of  tho  United  States,  and,  together  with  a  list  of  the  votes,  be  entered  on  the  Jour 
nals  of  the  two  Houses.  Upon  such  reading  of  any  such  certificate  or  paper  when 
there  shall  be  only  one  return  from  a  State,  the  President  of  the  Senate  shall  call 
for  objections,  if  any.  Every  objection  shall  be  made  in  writing,  and  shall  state 
clearly  and  concisely,  and  without  argument,  the  ground  thereof,  and  shall  be  signed 
by  at  least  one  Senator  and  one  member  of  the  House  of  Representatives  before  the 
same  shall  be  received.  When  all  objections  so  made  to  any  vote  or  paper  from  a 
State  shall  have  been  received  and  read,  the  Senate  shall  thereupon  withdraw,  and 
such  obiections  shall  be  submitted  to  the  Senate  for  its  decision ;  and  the  Speaker 
of  the  House  of  Representatives  shall  in  like  manner  submit  such  objections  to 
the  House  of  Representatives  for  its  decision  ;  and  no  electoral  vote  or  votes  from 
any  State  from  which  but  one  return  has  been  received  shall  be  rejected  except  by 
the  affirmative  vote  of  the  two  Houses.  When  the  two  Houses  have  voted,  they 
shall  immediately  again  meet,  and  the  presiding  officer  shall  then  announce  the  de 
cision  of  the  question  submitted. 

SEC.  2.  That  if  more  than  one  return  or  paper  purporting  to  be  a  return  rrom  a 
State  shall  have  been  received  by  the  President  of  the  Senate,  purporting  to  be  the 
certificates  of  electoral  votes  given  at  the  last  preceding  election  for  President  and 
Vice-President  in  such  State,  (unless  they  shall  be  duplicates  of  the  same  return,) 
all  such  returns  and  papers  shall  be  opened  by  him  in  tho  presence  of  tho  two 
Houses  when  met  as  aforesaid  and  read  by  the  tellers,  and  all  such  returns  and  pa 
pers  shall  thereupon  be  submitted  to  the  judgment  and  decision,  as  to  which  is  the 
true  and  lawful  electoral  vote  of  such  State,  of  a  commission  constituted  as  fol 
lows,  namely: 

During  the  session  of  each  House  on  the  Tuesday  next  preceding  the  first  Thurs 
day  in  February,  1877,  each  House  shall,  by  viva  voce  vote,  appoint  five  of  its  mem 
bers,  who,  with  the  five  associate  justices  of  the  Supreme  Court  of  the  United  States, 
to  be  ascertained  as  hereinafter  provided,  shall  constitute  a  commission  for  the  de 
cision  of  all  questions  upon  or  in  respect  of  such  double  returns  named  in  this  see- 
On  the  Tuesday  next  preceding  the  first  Thursday  in  February,  A.  D.  1877,  or  as 
soon  thereafter  as  may  be,  the  associate  justices  of  the  Supreme  Court  of  the  United 
States  now  assigned  to  the  first,  third,  eighth,  and  ninth  circuits  shall  select,  m 
such  manner  as  a  majority  of  them  shall  deem  fit,  another  of  the  associate  justices 


the  following  oath: 


,  do  solemnly  swear  (or  affirm,  as  the  case  may  be)  that  I  will  im- 

?artially  examine  and  considerall  questions  submitted  to  the  commission  of  which 
am  a  member,  and  a  true  judgment  give  thereon,  agreeably  to  the  Constitution 
and  the  laws:  so  help  me  God;  '  which  oath  shall  be  filed  with  the  Secretary  of 
the  Senate. 

When  the  commission  shall  have  been  thus  organized,  it  shall  not  be  in  the  power 
of  either  House  to  dissolve  the  same  or  to  withdraw  any  of  its  members  ;  but  if 
any  such  Senator  or  member  shall  die  or  become  physically  unable  to  perform  the 
duties  required  by  this  act,  the  fact  of  such  death  or  physical  inability  shall  be  by 
said  commission,  before  it  shall  proceed  further,  communicated  to  the  Senate  or 
House  of  Representatives,  as  the  case  may  be,  which  body  shall  immediately  and 
without  debate  proceed  by  viva  voce  vote  to  fill  the  place  so  vacated,  and  the  per 
son  so  appointed  shall  take  and  subscribe  the  oath  hereinbefore  prescribed,  and  be 
come  a  member  of  said  commission  ;  .and  in  like  manner,  if  any  of  said  justices  of 
the  Supreme  Court  shall  die  or  become  physically  incapable  of  performing  the  du 
ties  required  by  this  act,  tho  other  of  said  justices,  members  of  tho  said  commission, 
shall  immediately  appoint  another  justice  of  said  court  a  member  of  said  commis 
sion  ;  and,  in  such  appointments,  regard  shall  be  had  to  the  impartiality  and  free 
doni  from  bias  sought  by  tho  original  appointments  to  said  commission,  who  shall 


thereupon  immediately  take  and  subscribe  the  oath  hereinbefore  prescribed,  and 
)ecome  a  member  of  said  commission  to  fill  the  vacancy  so  occasioned. 

All  tho  certificates  and  papers  purporting  to  be  certificates  of  tho  electoral  votes 
of  each  State  shall  be  opened,  in  tho  alphabetical  order  of  the  States,  as  provided 
in  section  1  of  this  act ;  and  when  there  shall  be  more  than  one  such  certificate  or 
laper,  as  the  certificates  and  papers  from  such  State  shall  so  be  opened,  (excepting 
luplicates  of  the  same  return,)  they  shall  be  read  by  the  tellers,  and  thereupon  tho 
President  of  the  Senate  shall  call  for  objections,  if  any.  Every  objection  shall  bo 
made  in  writing,  and  shall  state  clearly  and  concisely,  and  without  argument,  the- 
n-ound  thereof,  and  shall  be  signed  by  at  least  one  Senator  and  one  member  of  tho- 
House  of  Representatives  before  tho  same  shall  be  received.  When  all  such  ob 
jections  so  made  to  any  certificate,  vote,  or  paper  from  a  State  shall  have  been  re 
:eived  and  read,  all  such  certificates,  votes,  and  papers  so  objected  to,  and  all  papers 
accompany  ing  the  same,  together  with  such  obj  ections,  shall  bo  forth  with  submitted 
to  said  commission,  which  shall  proceed  to  consider  tho  same,  with  the  same  pow 
ers,  if  any,  now  possessed  for  that  purpose  by  the  two  Houses  acting  separately  or 
together,  and,  by  a  majority  of  votes,  decide  whether  any  and  what  votes  from  such 
State  are  tho  votes  provided  for  by  the  Constitution  of  the  United  States,  and  how 
many  and  what  persons  were  duly  appointed  electors  in  such  State,  and  may  therein 
take  into  view  such  petitions,  depositions,  and  other  papers,  if  any,  as  shall,  by  the 
Constitution  and  now  existing  law,  be  competent  and  pertinent  in  such  considera 
tion;  which  decision  shall  bo  made  in  writing,  stating  briefly  tho  ground  thereof,  and 
signed  by  the  members  of  said  commission  agreeing  therein ;  whereupon  the  two 
Houses  shall  again  meet,  and  such  decision  shall  be  read  and  entered  in  tho  Journal 
of  each  House,  and  the  counting  of  the  votes  shall  proceed  in  conformity  therewith, 
unless,  upon  objection  made  thereto  in  writing  by  at  least  five  Senators  and  five 
members  of  the  House  of  Representatives,  the  two  Houses  shall  separately  concur 
in  ordering  otherwise ;  in  which  case  such  concurrent  order  shall  govern.  No 
votes  or  papers  from  any  other  State  shall  be  acted  upon  until  tho  objections  pre 
viously  made  to  the  votes  or  papers  from  any  State  shall  have  been  finally  <lis- 

SEC.  3.'  That  while  the  two  Houses  shall  be  in  meeting,  as  provided  in  this  act, 
no  debate  shall  be  allowed  and  no  question  shall  bo  put  by  the  presiding  officer, 
except  to  either  House  on  a  motion  to  withdraw ;  and  he  shall  have  power  to  pro- 
serve  order. 

SEC.  4.  That  when  the  two  Houses  separate  to  decide  upon  an  objection  that  may 
have  been  made  to  the  counting  of  any  electoral  vote  or  votes  from  any  State,  or 
upon  objection  to  a  report  of  said  commission,  or  other  question  arising  under  this 
act,  each  Senator  and  Representative  may  speak  to  such  objection  or  question  ten 
minutes,  and  not  oftener  than  once ;  but  after  such  debate  shall  have  lasted  two 
hours,  it  shall  be  tho  duty  of  each  House  to  put  the  main  question  without  further 
debate. 

SEC.  5.  That  at  such  ioint  meeting  of  the  two  Houses  seats  shall  bo  provided  as 
follows  •  For  the  President  of  the  Senate,  tho  Speaker's  chair ;  for  the  Speaker,  im 
mediately  upon  his  left ;  the  Senators  in  the  body  of  the  Hall  upon  the  right  of  tho 
prcsidin"-  officer  •  for  the  Representatives,  in  the  body  of  the  Hall  not  provided  lor 
the  Senators ;  for  tho  tellers.  Secretary  of  the  Senate,  and  Clerk  of  tho  House  of 
Representatives,  at  the  Clerk's  desk;  for  the  other  officers  of  the  two  Houses,  in 
front  of  the  Clerk's  desk  and  upon  each  side  of  tho  Speaker's  platform.  Such  joint, 
meeting  shall  not  be  dissolved  until  the  count  of  electoral  votes  shall  be  completed 
and  tho  result  declared ;  and  no  recess  shall  .bo  taken  unless  a  question  shall  Iiavo 
arisen  in  regard  to  counting  any  such  votes  or  otherwise  under  this  act;  in  which 


OXCCpteU,  au  t<lie  IlOUl    Ul    tell  u  ClUUft.  All    kiiu  JLWI  <-.AIWAJ.      -«-».ij'          u.*^  «".T    >!•   , — .    . — 

being  considered  by  said  commission,  either  House  may  proceed  with  its  legisla 
tive  or  other  business. 

SEC.  6.  That  nothing  in  this  act  shall  bo  held  to  impair  or  aflcct  any  right  now 
existing  under  the  Constitution  and  laws  to  question,  by  proceeding  in  tho  judicial 
courts  of  the  United  States,  the  right  or  title  of  the  person  who  shall  bo  declared 
elected  or  who  shall  claim  to  be  President  or  Vice- President  of  tho  United  States, 
if  any  such  right  exists. 

SEC.  7.  The  said  commission  shall  make  its  own  rules,  keep  a  record  of  its  proceed 
ings,  and  shall  have  power  to  employ  such  persons  as  may  be  necessary  for  tho 
transaction  of  its  business  and  tho  execution  of  its  powers. 


WEDNESDAY,  January  31,  1877. 

The  members  of  the  Commission  appointed  for  the  decision  of  cer 
tain  questions  relating  to  tho  counting  of  tho  electoral  votes  for  the 
offices  of  President  and  Vice-President  of  the  United  States  under 
the  act  entitled  "An  act  to  provide  for  and  regulate  the  counting  of 
votes  for  President  and  Vice-President,  and  tho  decision  of  questions 
arising  thereon,  for  the  term  commencing  March  4,  A.  D.  1877,  ap 
proved  January  29, 1877,  met  in  the  Supreme  Court  room  at  the  Cap 
itol,  at  eleven  o'clock  in  the  forenoon,  this  31st  day  of  January,  1877. 


ELECTORAL  COMMISSION. 


Present  :  Mr.  Justice  CLIFFORD,  Associate  Justice  assigned  to  the 
first  circuit  ;  Mr.  Justice  MILLER,  Associate  Justice  assigned  to  the 
eighth  circuit;  Mr.  Justice  FIELD,  Associate  Justice  assigned  to  the 
ninth  circuit;  Mr.  Justice  STRONG,  Associate  Justice  assigned  to  the 
third  circuit;  Mr.  Justice  BRADLEY;  Senators  EDMUNDS,  MORTON, 
FRELINGHUYSEN,  BAYARD,  and  TIIURMAN  ;  Eepresentatives  PAYNE, 
HUNTON,  ABBOTT,  GARFIELD,  and  HOAR. 

The  appointment  on  the  Commission  of  Associate  Justice  BRADLEY 
by  the  other  four  Associate  Justices  of  the  Supreme  Court  above  named 
was  presented  and  read,  as  follows  : 

Hon.  JOSEPH  P.  BRADLEY, 

Associate  Justice  of  the  Supreme  Court  of  the  United  States  : 

Pursuant  to  the  provisions  of  the  second  section  of  the  act  of  Congress  entitled 
"An  act  to  provide  for  and  regulate  the  counting  of  votes  for  President  and  Vice- 
president,  and  the  decision  of  questions  arising  thereon,  for  the  term  commencing 
March  4,  A.  D.  1877,"  approved  January  29,  1877,  the  undersigned,  Associate  Jus 
tices  of  the  Supremo  Court  of  the  United  States  assigned  to  the  first,  third,  eighth, 
and  ninth  circuits,  respectively,  have  this  day  selected  you  to  be  a  member  of  the 
commission  constituted  by  said  act. 


KATHAN  CLIFFORD. 
SAM.  F.  MILLER. 
STEPHEN  J.  FIELD. 
W.  STRONG. 

"WASHINGTON,  January  30,  1877. 

The  following  is  a  copy  of  the  certificate  of  the  appointment  of  the 
Senators  above  named  as  membersof  the  commission. 

IN  TUB  SENATE  OF  THE  UNITED  STATES, 

Tuesday,  January  30,  1877. 

The  Senate  proceeded  in  compliancs  with  its  order  of  this  day  to  the  appoint 
ment  by  viva  voce  vote  of  five  Senators  to  be  members  of  the  commission  provided 
for  in  the  act  entitled  "An  act  to  provide  for  and  regulate  the  counting  of  votes 
for  President  and  Vice-President,  and  the  decision  of  questions  arising  thereon,  for 
the  term  commencing  March  4,  A.  D.  1877,"  approved  January  29,  1877  ;  and 

On  taking  and  counting  the  votes  it  appeared  that  the  following  Senators  were 
duly  and  unanimously  chosen  members  of  the  said  commission,  namely  :  Mr. 
GEORGE  F.  EDMUNDS,  Mr.  OLIVER  P.  MORTON,  Mr.  FREDERICK  T.  FRELINGHUYSEN, 
Mr.  ALLEN  G.  THUKMAN,  and  Mr.  THOMAS  F.  BAYARD. 

Attest: 

GEO.  C.  GORHAM,  Secretary. 

The  following  is  a  copy  of  the  certificate  of  the  appointment  of 
the  Representatives  above  named  as  members  of  the  Commission  : 
FORTY-FOURTH  CONGRESS,  SECOND  SESSION, 

CONGRESS  OF  THE  UNITED  STATES, 
IN  THE  HOUSE  OF  REPRESENTATIVES,  January  30,  1877. 

The  Honse  of  Representatives  by  a  viva  voce  vote  appointed  Mr.  HENRY  B. 
PAYNE,  of  Ohio  ;  Mr.  EPPA  HUNTON,  of  Virginia  ;  Mr.  JOSIAH  G.  ABBOTT,  of  Mas 
sachusetts  ;  Mr.  GEORGE  F.  HOAR,  of  Massachusetts,  and  Mr.  JAMES  A.  GARFIELD, 
of  Ohio,  members  of  the  Commission  on  the  part  of  the  House  of  Representatives 
provided  for  in  the  act,  approved  January  29,  1877,  entitled  "An  act  to  provide  for 
and  regulate  the  counting  of  votes  for  President  and  Vice-President,  and  the  decis 
ion  of  questions  arising  thereon,  for  the  term  commencing  March  4,  A.  D.  1877." 
Attest  : 

[SEAL  OF  THE  HOUSE  OF  REPRESENTATIVES.]         GEORGE  M.  ADAMS,    Clerk. 

Associate  Justice  CLIFFORD  having  made  oath  as  required  by  the 
said  act  before  the  clerk  of  the  Supreme  Court  of  the  United  States, 
and  the  same  having  been  filed  with  the  Secretary  of  the  Senate,  the 
other  members  of  the  Commission  severally  took  and  subscribed  be 
fore  Mr.  Justice  CLIFFORD  the  oath  required  by  the  act,  and  the  Com 
mission  was  organized  and  called  to  order,  Associate  Justice  CLIFFORD 
presiding. 

On  motion  of  Mr.  Commissioner  THUEMAN,  it  was 
Resolved,  That  a  Committee  of  two  Justices,  two  Senators,  and  two  Representa 
tives  be  appointed  to  consider  and  propose  such  rules  of  proceeding  and  officers 
and  employes  as  may  be  proper  for  the  Commission,  the  committee  to  be  appointed 
by  the  President. 

The  PRESIDENT  appointed  Commissioners  EDMUNDS,  BAYARD, 
MILLER,  FIELD,  PAYNE,  and  HOAR  as  the  committee. 
On  motion  of  Mr.  Commissioner  HOAR,  it  was. 

Resolved,  That  the  President  appoint  a  temporary  clerk  until  the  committee 
above  appointed  report. 

The  President  appointed  James  H.  McKenney  temporary  clerk  to 
the  Commission. 

On  motion  of  Mr.  Commissioner  HOAR,  it  was 

Resolved,  That  the  proceedings  of  the  Commission,  until  otherwise  ordered,  be 
considered  confidential,  except  as  to  the  fact  of  the  organization. 

The  certificates  of  the  oaths  of  the  members  of  the  Commission 
were  delivered  to  the  clerk,  who  was  directed  to  file  them  with  the 
Secretary  of  the  Senate. 

On  motion  of  Mr.  Commissioner  EDMUNDS,  the  Commission  ad 
journed  until  four  o'clock  p.  m. 


The  Commission  met  at  four  o'clock  p.  m.  pursuant  to  adjournment 

Present  all  the  members. 

The  report  of  the  Committee  on  Rules  was  presented  by  Mr.  Com 
missioner  EDMUNDS. 

On  motion  of  Mr.  Commissioner  BRADLEY,  the  rules  reported 
•were  considered  seriatim,  and  after  being  amended,  were  adopted  as 
follows,  namely: 

RULE  I.  The  Commission  shall  appoint  a  secretary,  two  assistant  secretaries,  a 
marshal  and  two  deputy  marshals,  a  stenographer,  and  such  messengers  as  shall 
be  needful ;  to  hold  during  the  pleasure  of  the  commission. 

KULE  II.  On  any  subject  submitted  to  the  Commission,  a  hearing  shall  be  had 
and  counsel  shall  be  allowed  to  conduct  the  case  on  each  side. 

RULE  III.  Counsel,  not  exceeding  two  in  number  on  each  side,  will  be  heard  by 

a  Commission  on  the  nierita  of  any  case  presented  to  it,  not  longer  than  tw 


3rinte(f  arguments  will  be  received. 


objectors  to  any  other  certificate  may  select  two  of  their  number  for  a  like  pur 
pose  ;  but,  nnd'er  this  rule,  not  more  than  four  persons  shall  speak,  and  neither 
side  shall  occupv  more  than  two  hours. 

RULE  V.  Applications  for  process  to  compel  the  attendance  of  witnesses  or  the 
production  ofwritten  or  documentary  testimony  may  be  made  by  counsel  on  either 
side.  And  all  process  shall  be  served  and  executed  by  the  marshal  of  the  commis 
sion  or  his  deputies.  Depositions  hereafter  taken  for  use  before  the  commission 
shall  be  sufficiently  authenticated  if  taken  before  any  commissioner  of  the  circuit 
courts  of  the  United  States,  or  any  clerk  or  deputy  clerk  of  any  court  of  the  United 

RULE  VT.  Admission  to  the  public  sittings  of  the  Commission  shall  bo  regulated 
in  such  manner  as  the  President  of  the  Commission  shall  direct. 

RULE  VII.  The  Commission  will  sit,  unless  otherwise  ordered,  in  the  room  of  the 
Supreme  Conrtof  the  United  States,  and  with  open  doors,  (excepting  when  in  con 
sultation,)  unless  otherwise  directed. 

On  motion  of  Mr.  Commissioner  HOAR,  the  President  of  the  Com 
mission  was  requested,  on  consultation  with  Commissioners  EDMUNDS 
and  PAYNE,  to  nominate  officers  to  the  Commission.  < 

On  motion  of  Mr.  Commissioner  GARFIELD,  the  Committee  on 
Rules  were  directed  to  report  rules  to  regulate  the  order  of  business 
of  the  Commission. 

On  motion  of  Mr.  Commissioner  FRELINGHUYSEN,  the  Commis 
sion  adjourned  until  to-morrow  at  two  o'clock  p.  m. 


THURSDAY,  February  1, 1877. 

The  Commission  met  for  consultation ;  and  on  motion  of  Mr.  Jus 
tice  CLIFFORD  the  following-named  gentlemen  were  selected  as  offi 
cers  of  the  Commission  T 

Secretary — James  H.  McKenney. 

Assistant  Secretaries— E.  E.  Cattin  and  George  A.  Howard. 

Marshal — William  H.  Reardon. 

Deputy  Marshals— Albert  S.  Seoly  and  J.  C.  Taliaferro. 

Stenographer — D.  F.  Murphy. 

On  motion,  the  Commission  adjourned  till  three  o'clock  p.  m. 

The  Commission  again  met  at  three  o'clock  p.  m.,  pursuant  to  ad 
journment. 

The  Journal  of  the  preceding  session  was  read,  corrected,  and  ap 
proved. 

A  communication  from  the  two  Houses  of  Congress  in  joint  session 
was  presented  by  Mr.  GORHAM,  Secretary  of  the  Senate,  and  read  as 
follows : 

HALL  OF  THE  HOUSE  OF  REPRESENTATIVES, 

February  1,  1877. 
To  the  President  of  the  Commission  .• 

More  than  one  return  or  paper  purporting  to  be  a  return  or  certificate  of  electoral 
votes  of  the  State  of  Florida  having  been  received  and  this  day  opened  in  the  pres 
ence  of  the  two  Houses  of  Congress  and  objections  thereto  haying  been  made,  the 
said  returns,  with  all  accompanying  papers,  and  also  the  objections  thereto,  are 

>rewith  submitted  to  the  judgment  and  decision  of  the  Commission,  as  provided 


herewith  submi 
by  law. 


T.  w.  FERRY; 

President  of  the  Senate. 


The  PRESIDENT.  It  is  suggested,  and  I  think  very  properly,  that 
the  doors  may  now  be  opened  and  that  proper  persons  be  admitted. 

Mr.  Commissioner  BRADLEY.  I  understand  there  are  three  cer 
tificates  from  the  State  of  Florida  that  haye  been  sent  to  us.  I  should 
think  that  the  proper  course  would  be  to  have  those  three  certificates 
read,  and  then  as  each  is  read  let  the  parties  be  called  upon  to  state 
whether  they  are  objected  to  and  who  are  the  objectors.  Until  we 
read  those  certificates  or  hear  them  read,  wo  do  not  know  what  wo 
have  before  us.  After  that  it  will  be  time  to  take  such  other  order 
in  regard  to  proceeding  as  may  be  necessary. 

The  PRESIDENT.     I  will  adopt  that  suggestion  without  a  vote. 

Mr.  Commissioner  MILLER.  I  had  the  pleasure,  sir,  if  it  was  a 
pleasure,  of  listening  to  the  reading  of  those  documents  in  the  House 
of  Representatives.  If  the  papers  about  the  State  of  Florida  are  read 
it  will  take  an  hour  to  read  them.  The  objectors'  names  are  to  the 
papers  making  the  objections.  I  presume  they  will  be  printed ;  they 
certainly  ought  to  be  printed ;  and  then  everybody  can  read  them 
without  consuming  an  hour  of  t  ime  in  doing  that  which  every  man  will 
want  to  do  for  himself  more  carefully.  I  think  if  Brother  BRADLEY 
had  known  as  I  do  the  length  of  these  papers  ho  would  perhaps  with 
draw  his  motion. 

The  PRESIDENT.    Does  Justice  BRADLEY  withdraw  his  motion  ? 

Mr.  Commissioner  BRADLEY.  I  did  not  make  a  motion;  I  merely 
made  a  suggestion. 

Mr.  Commissioner  PAYNE.  Now  I  move  that  the  certificates  with 
the  papers  be  printed  at  as  early  an  hour  as  possible. 

The  PRESIDENT.  The  motion  before  the  Commission  is  that  the 
three  certificates  in  the  case  of  Florida  bo  printed  and  the  objections 
thereto.  If  that  is  your  pleasure  you  will  say  ay,  [putting  the  ques 
tion.]  It  is  a  vote. 

The  PRESIDENT.    How  soon  can  they  be  printed! 


ELECTORAL  COMMISSION. 


3 


Mr.  Commissioner  FIELD.  Should  we  not  have  copies  of  the  papers 
presented  ? 

The  PRESIDENT.  I  suppose  the  certificates  and  objections  may 
bo  printed  in  a  very  short  time.  The  Secretary  will  understand  that 
the  motion  is  intended  to  include  the  certificates  and  the  objections 
and  the  papers  that  accompany  the  certificates,  and  nothing  else.  It  is 
desirable  that  they  should  be  printed  with  as  little  delay  as  possible. 

That  matter  being  disposed  of,  I  am  requested  to  inquire  if  there 
are  counsel  present  who  will  take  part  after  the  managers  or  object 
ors  have  stated  the  case  on  the  one  side  and  the  other. 

Mr.  EVAETS.  Mr.  President,  Mr.  Senator  Sargent  has  come  in 
and  will  state  what  he  has  to  say  in  that  regard. 

The  PRESIDENT.  I  will  withdraw  the  inquiry  as  put,  and  say  to 
Mr.  Sargent  that  inquiries  have  been  made  as  to  the  objectors. 

Senator  SARGENT.  The  objectors,  the  persons  whose  names  are 
signed  to  the  paper,  are  Senators  Conover,  Sargent,  and  Sherman, 
and  Mr.  McCrary,  Mr.  Kasson,  Mr.  Woodburn,  and  Mr.  Dunnell, 
members  of  the  House.  There  has  been  no  opportunity  up  to  this 
moment  of  consulting  with  these  gentlemen  to  ascertain  which  of 
them  will  state  their  objections  to  the  Commission. 

The  PRESIDENT.  Two  objectors  may  represent  the  case  in  this 
tribunal. 

Senator  SARGENT.    So  we  understand  by  the  rules. 

The  PRESIDENT.    Who  are  the  two  ? 

Senator  SARGENT.  There  has  been  no  opportunity  to  consult 
to  ascertain  which  of  the  objectors  would  present  the  matter  to  the 
court. 

The  PRESIDENT.  Please  make  it  known  to  the  Commission  as 
soon  as  convenient. 

Senator  SARGENT.    We  will. 

The  PRESIDENT.  Will  Mr.  Field  state  the  names  of  the  objectors 
on  the  other  side  ? 

Mr.  Representative  FIELD.  The  objectors  to  the  first  return  are 
Senators  Jones  of  Florida,  and  Cooper,  and  Representatives  Thomp 
son,  Jenks,  and  myself. 

Mr.  Commissioner  ABBOTT.  Mr.  President,  I  desire  to  inquire 
whether  the  motion  made  in  reference  to  printing  covers  the  printing 
of  all  papers  that  are  sent  here  with  the  objections,  because  it  seems 
to  me  that  we  are  to  consider  all  papers  sent  with  the  objections,  and 
it  is  just  as  material  for  us  to  have  those  papers  printed,  so  that  we 
can  consider  them,  as  it  is  to  have  the  objections  themselves. 

The  PRESIDENT.  I  do  not  understand  the  vote  in  that  way  at 
present.  It  is  that  the  certificates,  with  the  objections  and  the  papers 
which  accompany  the  certificates,  shall  be  printed ;  not  all  the  papers 
that  may  have  been  sent. 

Mr.  Commissioner  ABBOTT.  I  suggest,  then,  that  at  some  point 
of  time,  if  we  are  to  consider  the  papers  accompanying  the  objections, 
they  may  bo  so  made  part  of  the  cause.  The  objections  themselves 
would  hardly  be  understood  without  the  papers;  and  we  should 
have  those  papers  printed,  or  put  in  some  form  that  we  can  act  on 
them. 

The  PRESIDENT.    There  is  no  motion  on  that  subject. 

Mr.  Commissioner  ABBOTT.  I  move,  then,  that  the  papers  accom 
panying  the  objections  be  also  printed. 

Mr.  Commissioner  EDMUUDS.  Mr.  President,  I  submit  that  it  is 
possible  under  the  statute  under  which  we  are  acting  that  there  may 
be  no  papers  lawfully  and  within  the  statute  accompanying  an  ob 
jection.  The  statute  provides  for  papers  that  accompany  certificates ; 
but,  as  I  remember  at  this  moment— I  speak  subject  of  course  to  cor 
rection — it  does  not  provide  for  papers  accompanying  the  objections  ; 
so  that  I  think  it  will  be  a  matter  for  the  consideration  of  the  Com 
mission  in  consultation  how  far  in  printing  the  testimony  that  may  be 
offered,  whether  by  objectors  or  anybody  else,  we  ought  to  go.  It 
may  be  a  question  for  consideration  whether  time  would  warrant  us 
in  receiving  and  printing  everything  that  may  be  proposed  on  either 
side. 

Mr.  Commissioner  THURMAN.  Mr.  President,  it  is  true  that  the 
statute  requires  the  papers  accompanying  certificates  to  be  laid  before 
the  Commission ;  but  it  also  authorizes  the  Commission  to  take  into 
view  all  documents,  depositions,  and  other  papers  that  may  be  com 
petent  and  pertinent  in  this  inquiry ;  and,  if  we  have  received  papers 
from  either  of  the  Houses  which  in  the  estimation  of  the  Houses  it  is 
proper  to  send  to  us,  i  t  seems  to  me  we  must  look  at  them  and  see 
whether  they  are  competent  and  pertinent.  I  think,  therefore,  that 
the  motion  to  print  ought  to  be  adopted.  That  will  not  delay  us  in 
having  by  to-morrow  morning,  as  early  as  we  see  fit  to  meet,  a  print 
of  the  certificates  and  the  objections.  We  can  give  directions  that 
they  shall  be  sent  to  us  immediately ;  and  the  printing  of  these  other 
papers  could  go  on ;  and,  knowing  the  great  rapidity  with  which 
work  is  done  at  the  Government  Printing  Office,  I  do  not  think  wo 
should  have  to  wait  very  long  to  get  them  all. 

Mr.  Commissioner  ABBOTT.  Mr.  President,  I  think  on  looking  at 
the  law  that  objections  only  are  to  be  sent  here ;  and  I  fancy  that  those 
papers,  if  they  are  sent  here  at  all,  must  come  as  part  of  the  objec 
tions,  so  that  perhaps  the  motion  to  print  the  objections  would  carry 
with  it,  necessarily,  the-  printing  of  those  papers.  I  do  not  see  how 
they  get  here  except  as  papers  accompanying  the  certificates  or  as 
part  of  the  objections.  Of  course  I  have  no  desire  to  impede  the 
printing  of  the  objections  or  the  certificates,  but  I  wish  to  get  thorn 
as  soon  as  possible. 


Mr.  Commissioner  EDMUNDS.  Mr.  President,  in  order  that  wo 
may 'consider  that  topic,  I  move  that  the  motion  of  Judge  ABBOTT  bo 
for  the  time  being  laid  upon  the  table,  so  that  wo  may  consider  about 
it  a  little  afterward. 

The  PRESIDENT.  The  motion  is  to  lay  the  motion  of  Judge  AB 
BOTT  upon  the  table. 

Mr.  Commissioner  ABBOTT.  I  withdraw  the  motion  for  the  time, 
to  be  renewed  at  a  subsequent  time. 

The  PRESIDENT.  Themotionis  withdrawn.  [A  pause.]  I  am  re 
quested  now  to  call  for  the  names  of  counsel  who  appear  in  the  case 
on  each  side. 

Mr.  Representative  FD3LD.  We  have  several  counsel  on  our  side. 
We  have  Mr.  O'Conor  of  Now  York,  Judge  Black  of  Pennsylvania, 
Judge  Trumbull  of  Illinois,  Mr.  Merrick  of  Washington,  and  Mr. 
Green  of  New  Jersey. 

The  PRESIDENT.  Counsel  not  exceeding  two  in  number  on  each 
side  are  allowed  to  participate  in  argument. 

Mr.  Representative  FIELD.  We  have  not  selected  those  two.  I 
only  mention  to  you  in  answer  to  the  question  how  many  there  are 
who  are  concerned  in  the  case.  We  shall  arrange  that  matter  in  the 
course  of  the  evening. 

The  PRESIDENT.  That  will  answer.  Who  are  counsel  on  the 
other  side  ? 

Mr.  EVARTS.  As  representing  objectors  to  other  certificates  than 
those  that  have  been  represented  in  the  enumeration  by  Mr.  Field,  I 
will  state  that  Mr.  Stoughton,  Mr.  Stanley  Matthews,  Mr.  Shella- 
barger,  and  myself  are  expected  to  represent  objectors  in  some  of  the 
cases  which  will  appear,  and  I  would  ask  the  instruction  of  the  court 
— it  is  pertinent  now  to  make  the  inquiry — as  to  what  is  included  in 
the  phrase  "  on  the  merits  of  any  case  presented  to  it ;"  whether  that 
means  any  issue  joined  on  objections  to  any  particular  certificate  or 
whether  it  includes  all  that  arises  in  the  case  of  a  particular  State. 

The  PRESIDENT.  I  think  the  counsel  will  have  to  judge  of  that 
matter  for  themselves.  Unless  they  have  some  question  to  submit  to 
the  Commission  it  is  hardly  within  the  province  of  the  Presiding 
Justice  to  determine  that. 

Mr.  EVARTS.  We  understand,  then,  if  the  commission  please, 
that  the  designation  of  two  counsel  will  be  sufficiently  early  enough 
made  when  the  case  is  up  ? 

Mr.  Commissioner  EDMUNDS.  That  is  merely  for  the  final  argu 
ment. 

The  PRESIDENT.    After  the  objectors  have  opened  the  case. 

Mr.  EVARTS.     So  we  understand. 

Mr.  Commissioner  BRADLEY.  I  suggest  to  Mr.  Evarts  that  prob 
ably  the  construction  of  that  would  be  "  the  case  on  its  merits ;"  the 
principal  question  would  be  included  in  that  term ;  and  all  interloc 
utory  or  other  motions  would  not  be  included  in  that  phrase. 

Mr.  Commissioner  EDMUNDS.  It  covers  the  whole  subject  of  a 
particular  State. 

Senator  SARGENT.  In  reply  to  the  question  of  the  commission  as 
to  which  of  the  objectors 'would  present  the  case  on  behalf  of  the  ob 
jectors  aside  from  counsel,  on  conference  it  is  determined  that  Mr. 
McCrary  and  Mr.  Kasson  will  so  appear. 

Mr.  Commissioner  EDMUNDS.  I  move  that  the  public  sitting  of 
the  Commission  be  now  adjourned  until  half  past  ten  in  the  morning 
unless  counsel  or  objectors  have  something  further  to  say  at  this  pres 
ent  time. 

Mr.  Commissioner  GARFIELD.  I  think  there  was  one  objection 
filed  that  no  action  has  been  taken  in  regard  to  an  objection,  I  believe, 
from  Senator  Jones ;  and  as  I  have  heardtho  President  of  the  Commis 
sion  make  no  allusion  to  it,  I  inquire  whether  there  is  any  special 
hearing  on  that  objection.  I  think  it  was  different  from  the  other 
objections  which  have  been  filed.  I  refer  to  it  because  it  makes  a 
distinct  case,  being  a  different  objection  in  its  character  from  either 
of  the  other  two  that  have  been  referred  to. 

The  PRESIDENT.  My  impression  is— although  I  do  not  make  that 
decision  in  behalf  of  the  Commission — that  the  several  objections  to 
the  returns  from  a  State  constitute  one  case,  and  two  objectors  will 
bo  heard  upon  one  side  and  two  on  the  other ;  and  after  they  shall 
have  been  heard,  two  counsel  will  be  heard  upon  one  side  and  two 
upon  the  other.  Unless  otherwise  advised  by  the  Commission,  that 
will  be  the  ruling. 

Mr.  Representative  FIELD.  Will  you  allow  me  to  say  that  per 
haps  there  may  be  some  misunderstanding  in  regard  to  that  rule  un 
less  I  state  to  you  precisely  the  facts? 

The  PRESIDENT.    Proceed,  sir. 

Mr.  Representative  FIELD.  There  are  objections  to  the  4  votes 
of  Florida  on  each  side;  that  is  to  say,  we  object  to  the  4  votes 
mentioned  in  the  first  returns. 

Mr.  Commissioner  EDMUNDS.    Which  are  they? 

Mr.  Representative  FIELD.  They  are,  if  I  may  use  the  names  of 
the  candidates,  the  Hayes  electors.  We  object  on  our  part  to  those 
votes,  certificates,  and  lists. 

Mr.  Commissioner  EDMUNDS.  And  the  other  gentlemen  object  to 
the  others  ? 

Mr.  Representative  FIELD.  Mr.  Sargent,  Mr.  Kasson,  and  the 
gentlemen  on  the  other  side  specifically  object  to  ours.  Then  thcro 
is  the  additional  objection  made  by  Senator  Jones,  of  Florida,  and 
others,  to  one  of  the  Hayes  electors  as  ineligible  under  the  Constitu 
tion.  That  is  a  distinct  matter  and  wo  supposed  it  would  bo  taken 


ELECTORAL  COMMISSION. 


up  quite  distinctly.  It  is  a  minor  affair  and  should  not  encumber  the 
principal  one.  And  if  the  Commission  will  allow  us,  wo  will  desig 
nate  Mr.  Thompson  and  Mr.  Jenks.  I  suppose  the  discussion  of  that 
will  not  take  up  much  of  the  time  of  the  Commission;  but  at  all 
events,  as  a  matter  of  form,  if  you  will  allow  us,  we  will  suggest  that 
Mr.  Thompson  and  Mr.  Jenks  bo  the  objectors  in  those,  and  then  as 
to  counsel  we  will  advise  to-night  and  inform  the  Commission  to-mor 
row  what  counsel  represent  us. 

The  PRESIDENT.  When  yon  are  advised  what  you  desire,  you 
will  submit  a  motion  to  the  Commission  and  I  will  have  it  deter 
mined.  At  present  I  am  not  prepared  to  rule  otherwise  than  I  have. 
If  there  be  no  further  suggestion  to  be  presented,  I  will  put  the  ques 
tion  to  the  Commission  that  when  this  Commission  adjourns  it  ad 
journ  to  meet  at  half  past  ten  o'clock  to-morrow  morning. 

Mr.  Commissioner  EDMUNDS.  I  will  move— so  that  we  shall  not 
keep  gentlemen  who  wish  to  prepare  their  matters — that  the  public 
sittings  of  the  Commission  be  now  adjourned  until  half  past  ten 
o'clock  to-morrow. 

Mr.  Commissioner  THURMAN.  But  the  Commission  to  continue  in 
session. 

Mr.  Commissioner  EDMUNDS.    Yes,  for  consultation. 

The  PRESIDENT.  Under  the  circumstances  I  will  put  the  motion, 
with  the  consent  of  the  mover,  that  when  the  Commission  adjourns 
it  adjourn  until  to-morrow  at  half  past  ten  o'clock. 

The  motion  was  agreed  to. 

The  PRESIDENT.  I  will  notify  all  who  are  present  that  there  will 
bo  no  more  public  business  transacted  by  the  Commission  to-day. 

Mr.  Commissioner  FRE-LINGHUYSEN.  I  was  about  to  suggest 
that  it  would  be  well  to  understand  from  the  objectors  and  counsel 
whether  they  will  be  prepared  to  go  on  to-morrow  morning. 

Mr.  Representative  FIELD.  On  our  part  wo  are  prepared  to  go  on 
at  any  moment — to  go  on  now  if  you  wish. 

The  PRESIDENT.  The  gentlemen  present  may  understand  that 
there  will  be  no  farther  public  business  transacted  by  the  Commission 
to-day.  The  commission  will  remain  for  private  consultation. 

The  room  having  been  cleared,  the  Commission  remained  for  con 
sultation. 

On  motion  of  Mr.  Commissioner  EDMUNDS,  it  was 

Ordered,  That  Mr.  ABBOTT  and  Mr.  HOAR  bo  a  committee  to  consider  and  report 
•whether  certain  papers  referred  to  in  the  objections  of  C.  W.  Jones  and  others 
ought  to  be  printed  for  the  use  of  the  Commission. 

On  motion  of  Mr.  Commissioner  HOAR,  it  was 

Ordered,  That  no  action  be  taken  by  the  committee  referred  to  in  the  resolution 
of  Mr.  Commissioner  EDMUNDS  until  the  next  meeting  of  the  Commission  for  con 
sultation. 

Mr.  Commissioner  MILLER  moved  that  the  objections  to  certificates 
in  the  Florida  case  be  heard  as  one  objection  to  each  set  of  electors, 
and  be  argued  together ;  which  was  adopted. 

The  Secretary  of  the  Commission,  on  motion  of  Mr.  Commissioner 
EDMUNDS,  was  directed  to  prepare  and  have  printed  on  slips  the  names 
of  the  members  of  the  Commission  in  alphabetical  order  for  the  pur 
pose  of  being  used  in  taking  the  votes. 

Mr.  Commissioner  HOAR  moved  that  the  Secretary  have  printed 
for  the  use  of  the  Commission  such  laws  as  may  be  directed  by  the 
President  of  the  Commission. 

Mr.  Commissioner  MORTON  moved  an  amendment  to  include  the 
election  laws  of  the  States  of  Florida,  Louisiana,  Oregon,  and  South 
Carolina. 

The  amendment  was  agreed  to. 

The  motion,  as  amended,  was  agreed  to. 

On  motion  of  Mr.  Commissioner  STRONG,  (at  four  o'clock  and  forty- 
five  minutes  p.  in.,)  the  Commission  adjourned. 


FRIDAY,  February  2,  1877. 

The  Commission  met  at  half  past  ten  o'clock  a.  m.,  pursuant  to  ad 
journment,  all  the  members  being  present. 

The  journal  of  yesterday  was  read  and  approved. 

The  PRESIDENT.  The  case  before  the  Commission  is  that  of 
Florida.  Inquiries  were  made  yesterday  "  what  is  the  case  ?"  to  which 
I  beg  leave  to  respond  that  it  consists  of  three  certificates  with  the 
accompanying  papers,  and  the  objections  to  the  same.  Two  of  the 
objectors  on  each  side  will  bo  allowed  to  speak  in  the  opening  of 
the  case.  Those  representing  the  objections  to  certificate  No.  1  will 
speak  first,  and  I  would  remind  them  that  the  fourth  rule  allows 
them  two  hours  in  which  they  will  state  the  case  in  the  opening  ar 
guments  in  support  of  their  objections,  and  also  in  support  of  any 
other  certificate  which  they  claim  to  bo  valid.  When  they  have  con 
cluded,  two  objectors  on  the  other  side  will  speak  under  the  same 
rules  and  limitations.  I  will  not  give  any  directions  now  as  to  coun 
sel  ;  that  will  come  afterward. 

Mr.  Representative  FIELD.  Allow  me  to  ask  whether  after  the 
two  objectors  have  spoken  on  the  other  side,  wo  shall  not  be  allowed 
the  opportunity  of^a  reply  within  our  two  honrs? 

The  PRESIDENT.  The  rules  make  no  provision  for  any  reply  on 
the  part  of  the  objectors.  Applications  for  further  time  or  further 
counsel  must  bo  made  to  the  Commission,  tho  Presiding  Justice  hav 


ing  no  discretion  in  the  matter  whatever.  When  counsel  speak, 
it  will  be  under  different  regulations.  Perhaps  they  need  not  bo 
stated  now,  but  as  it  seems  that  I  am  rather  expected  to  state  it, 
I  will  say  that  my  view  is  that  one  of  the  counsel  in  favor  of  the  ob 
jections  to  certificate  No.  1  should  open ;  two  counsel  in  favor  of  the 
certificate  No.  1  and  against  the  objections  should  reply ;  and  then 
the  other  counsel  in  favor  of  objections  to  certificate  No.  1  should 
have  tho  close. 

Mr.  Representative  TUCKER.  May  I  ask  whether  the  two  hours 
of  the  objectors  to  the  first-named  certificate  must  be  consumed  in 
tho  opening? 

The  PRESIDENT.  If  at  all.  There  is  no  provision  made  for  a 
reply.  One  of  the  objectors  to  certificate  No.  1  may  proceed.  I  am 
told  that  sometime  would  be  spent  in  reading  the  certificates  and 
accompanying  papers  and  the  objections,  if  they  were  read ;  but 
they  will  soon  be  printed  and  laid  on  our  tables,  and  it  is  suggested 
that  unless  it  produces  inconvenience  the  statement  or  opening  should 
proceed  without  reading  the  papers.  If  it  is  desired  I  will  direct  that 
they  shall  be  read,  though  I  understand  the  reading  will  consume  some 
time.  If  that  is  not  desired,  the  statement  of  the  case  will  proceed. 

Mr.  Representative  KASSON.  If  the  Commission  please,  I  ought  to 
state  on  behalf  of  the  objectors  on  this  side  that,  while  we  have  no 
objection  to  the  proceeding  this  morning  as  far  as  the  objectors  to  the 
first  certificate  are  concerned,  my  associate  and  myself  find  that  so 
many  more  questions  are  involved  in  the  objections  to  that  certificate 
than  it  was  supposed  would  be  found — we  not  having  had  the  oppor 
tunity  to  examine  them  until  this  morning — that  it  is  probable  we 
shall  be  obliged  to  ask  the  court  for  some  time  before  proceeding  on 
our  behalf. 

I  make  that  statement  now,  not  desiring  to  object  to  gentlemen 
going  on  this  morning  who  are  ready,  but  simply  to  save  our  right  to 
make  that  suggestion  to  the  tribunal  at  the  completion  of  the  argu 
ment  on  that  side  on  behalf  of  the  objectors. 

The  PRESIDENT.  The  suggestion  calls  for  no  ruling  on  the  part 
of  the  presiding  officer.  You  will  proceed,  gentlemen  on  the  side  of 
the  objectors  to  certificate  No.  1;  I  shall  designate  them  as  No.  1,  2, 
and  3,  for  convenience. 

Mr.  Representative  FIELD.  Before  proceeding  if  you  will  allow  me, 
I  beg  to  speak  to  a  preliminary  matter.  I  observe  that  Rule  5  speaks 
of  evidence.  Now,  I  am  in  some  doubt  about  the  course  of  proceed 
ing.  If  evidence  is  admissible  it  should  be  stated,  we  suppose,  before 
beginning  the  argument.  We  are  prepared  with  witnesses  from  Flor 
ida  to  state,  at  the  bar  or  in  any  manner  that  the  court  may  indicate 
by  deposition  or  otherwise,  all  that  is  necessary  to  prove  the  allega 
tions  of  our  objection.  We  suppose  that  the  papers  which  have  been 
presented  hero  contain  sufficient  evidence  and  are  receivable ;  but  I 
ought  to  state  in  limine  that  I  do  not  wish  to  proceed  with  the  argu 
ment  under  the  impression  that  we  have  not  other  evidence.  Of 
course  saving  the  question  whether  the  evidence  is  competent,  I  wish 
to  say  that  we  have  the  evidence  and  we  can  produce  it  here  or  any 
where  that  the  Commission  may  direct,  and  offer  to  do  it  now  or  at 
any  other  time  or  in  any  other  manner. 

I  thought  I  ought  not  to  proceed  with  my  statement  without  mak 
ing  that  preliminary  suggestion. 

Mr.  Commissioner  STRONG.  Mr.  President,  it  seems  to  me  that 
the  rules  which  we  have  adopted  place  the  objectors  in  precisely  the 
same  position  that  counsel  are  placed  in  who  open  a  case  before  it  is 
submitted  to  a  jury.  We  propose — such  is  my  understanding  of  the 
rule — that  the  objectors  shall  occupy  exactly  that  position  in  their 
statement  of  their  objections,  to  state  what  the  objections  are,  and 
how  they  propose  to  support  them.  The  other  questions  will  come 
up  afterward  in  regard  to  the  admissibility  of  evidence. 

Mr.  Representative  FIELD.    That  is  quite  satisfactory. 

Mr.  Commissioner  STRONG.  That  is  my  understanding  at  this 
time. 

The  PRESIDENT.  You  can  proceed,  Mr.  Field,  with  the  case  at  a 
quarter  before  eleven.  Your  side  will  have  two  hours. 

Mr.  Representative  FIELD.  Mr.  President  and  gentlemen  of  tho 
Electoral  Commission  :  It  will  be  my  endeavor,  in  the  statement  which 
I  shall  make,  to  set  forth  with  as  much  conciseness  as  I  may  the  facts 
that  we  expect  to  prove  and  the  propositions  of  law  which  we  hope 
to  establish. 

The  power  devolved  by  the  Federal  Constitution  upon  the  States  of 
this  Union  was,  in  the  State  of  Florida,  exercised  by  the  Legislature 
of  tho  State  directing  the  appointment  of  presidential  electors  to  be 
made  by  the  qualified  voters  of  the  State  at  a  general  election.  That 
election  was  held  on  the  7th  of  November,  1876.  It  was  qiiiet  and 
orderly,  so  far  as  wo  are  informed,  throughout  the  State,  and  it  re 
mained  only  to  gather  the  result  of  the  voting.  That  result  was  a 
majority  in  favor  of  the  electors  who,  for  convenience  sake,  I  will 
designate  as  tho  Tilden  electors.  Nevertheless,  a  certificate  comes 
here  signed  by  the  then  governor  of  the  State  certifying  that  the 
Hayes  electors  had  a  majority  of  the  votes.  By  what  sort  of  jugglery 
that  result  was  accomplished  I  now  take  it  upon  me  to  explain. 

By  the  laws  of  the  State  the  counties  are  divided  into  polling-pre 
cincts  and  the  votes  of  the  polling-precincts  are  returned  to  the 
county  clerk  at  tho  county  seat,  where  they  are  canvassed,  and  the 
county  canvassers  certify  to  tho  State  canvassers.  I  have  occasion 
to  mention  canvassers  only  in  one  county.  That  county  was  decisive 
of  the  result ;  but  if  it  were  not,  ex  uno  disce  omnes.  Tho  county  to 


ELECTORAL  COMMISSION. 


which  I  refer  is  Baker  County.  The  canvassers  were  by  law  to  be 
the  county  judge,  the  county  clerk,  (or  rather  I  think  he  is  called  the 
clerk  of  the  circuit  court  for  the  county,  but  I  call  him  for  conven 
ience  the  county  clerk,)  and  a  justice  of  the  peace  to  be  by  them  called 
in  for  their  assistance.  In  case  either  the  judge  or  the  clerk  is  ab 
sent  or  cannot  attend,  the  sheriff  of  the  county  is  to  be  called  in  his 
place.  The  law  provides  that  the  canvass  by  the  county  canvassers 
shall  be  on  the  sixth  day  after  the  election,  or  sooner  if  the  returns 
are  all  received. 

In  this  county  there  were  but  four  precincts,  and  the  returns  from 
them  were  all  received  in  three  days.  On  the  10th  of  November  the 
county  clerk,  considering  that  the  returns  being  in  further  delay  in 
the  canvass  might  be  embarrassing — for  what  reasons  it  does  not  de 
volve  on  me  to  say — requested  the  county  judge  to  join  him  in  the 
canvass.  The  county  judge  refused.  The  clerk  then  asked  the  sheriff 
to  join  him,  but  he  declined.  The  clerk  thereupon  called  to  his  assist 
ance  a  justice  of  the  peace  and  made  the  canvass,  and  a  true  canvass 
it  was,  as  all  parties  agree  I  think.  I  have  never  heard  anywhere  the 
suggestion  that  the  votes  as  certified  by  them  were  not  the  true  votes. 
But  it  so  happened  that  the  county  judge,  on  the  same  day,  the  10th, 
issued  a  notice  to  the  county  clerk  and  to  a  justice  of  the  peace  to 
attend  him  at  the  county  seat  on  the  13th,  which,  as  you  will  remem 
ber,  was  just  six  days  after  the  election,  at  noon,  for  the  purpose  of 
niiiking  the  count.  On  that  day  and  hour  the  county  clerk  and  the 
justice  thus  requested  attended.  The  county  judge,  however,  ab 
sented  himself,  though  he  had  given  the  notice.  He  was  invited  and 
urged  to  go  on  with  the  canvassing.  The  record  shows  that  he  laughed, 
and  said  he  thought  that  what  had  been  already  done  was  enough. 
The  sheriff  was  then  applied  to  and  he  refused.  Thereupon  the  county 
clerk  and.  a  justice  of  the  peace — another  justice  called  in — recan- 
vassed  the  votes,  giving  the  same  result  precisely,  and  certified  them 
to  the  State  canvassers,  stating  in  the  certificate  the  reasons  why 
neither  the  county  judge  nor  the  sheriff  was  present.  The  office  of 
the  clerk  was  then  closed  for  the  day. 

In  the  evening  of  that  day  the  s-ime  county  judge  and  the  same 
sheriff,  taking  to  their  assistance  a  justice  of  the  peace  who  had  been 
commissioned  by  Stearns  only  on  the  10th  and  who  had  never  acted 
before,  entered  the  office  surreptitiously,  opened  a  drawer,  and  took 
out  the  returns,  threw  aside  two  precincts,  certified  the  two  remain 
ing,  and  sent  that  certificate  to  the  State  canvassers.  You  are  now 
to  say  whether  this  certificate  of  these  men,  under  these  circum 
stances,  in  the  darkness  of  the  night,  throwing  out  two  precincts,  and 
certified  to  the  State  canvassers,  without  any  reason  why  the  county 
clerk  was  not  present,  shall  be  taken  as  the  voice  of  that  county  of 
Florida.  That  I  do  not  misrepresent  the  exact  state  of  facts  let  me 
read  you  the  testimony  as  it  will  appear  upon  the  record  to  be  laid  be 
fore  you.  Here  is  the  testimony  in  respect  to  this  third  canvass,  this 
false  and  fraudulent  canvass,  which  I  will  read  as  given  by  the  sheriff; 

Ho  testified  that  he  first  received  notice  from  Judge  Drieggers  to  assist  him  in 
making  the  canvass  of  liaker  County  probably  between  four  and  five  o'clock  in  the 
afternoon  of  the  13th ;  that  they  went  to  the  clerk's  office;  that  the  clerk's  office 
was  closed  when  they  got  there.  He  thinks  this  was  about  six  o'clock,  "  it  mi^ht 
have  been  seven  o'clock."  That  they  lit  up  the  office  ;  that  they  knew  that  the  clerk 
had  made  the  canvass  on  that  afternoon ;  that  there  was  no  one  then  in  the  office. 

The  law  providing  that  the  canvass  should  bo  public,  the  record 
thus  proceeds,  as  follows,  and  I  give  it  verbatim  : 

Question.  "What  did  you  do  then  ? 

Answer.  "We  just  made  the  return,  throwing  away  two  precincts  in  the  county. 

Q.  "What  two  precincts  in  the  county  did  you  throw  away  ? 

A.  One  was  Darhyvillo  precinct  and  the  other  was  Johnsville  precinct. 

Q.  "Which  did  you  throw  away  first  ? 

A.  The  Johnsville  precinct.  . 

Q.  And  then  you  threw  away  the  Darby ville  precinct  ? 

A.  Yes,  sir. 

Q.  Did  you  have  any  witnesses  at  all  before  you  ? 

A.  None  at  all. 

Q.  Did  you  have  anything  before  you  except  the  returns. 

A.  No,  sir. 

Q.  "Why  did  you  throw  away  Johnsville  precinct? 

A.  "We  believed  that  there  was  some  intimidation  there ;  that  there  was  one  party 
prevented  from  voting. 

Q.  Did  you  have  any  evidence  before  you  to  that  effect? 

A.  No.  sir ;  there  was  only  his  statement. 

Q.  Did  you  not  have  a  particle  of  evidence  before  you  ? 

A.  No,  sir. 

Q.  You  believed  that  one  party  had  been  intimidated  and  prevented  from  votin^  ? 

A.  Yes,  sir. 

Q.  And  therefore  you  threw  out  the  Johnsville  precinct  ? 

A.  Yes,  sir. 

Q.  "Was  there  any  reason  for  throwing  it  out  ? 

A.  No,  sir. 

Q.  None  whatever  I 

A.  No,  sir. 

Q.  No  other  reason  suggested  but  that,  was  there  ? 

A.  No,  sir. 

Q.  You  next  threw  out  Darbyville  precinct  ? 

A.  Yes,  sir. 

Q.  For  what  reason  did  you  do  so  ? 

A.  We  believed  that  there  were  some  illegal  votes  cast  there  ? 

Q.  Did  you  have  any  evidence  before  you  at  all  ? 

A.  No,  sir. 

Q.  Not  a  particle  ? 

A.  No,  sir. 

Q.  But  you  had  an  impression  that  some  illegal  votes  were  cast  there  ? 

A.  Yes,  sir. 


.  Q.  You  had  no  proof  of  it  at  all  ? 
A.  No,  sir. 


Q.  How  many  illegal  votes  did  you  have  an  Impression  were  cast  there! 

A.  About  7, 1  think,  as  well  as  I  can  recollect, 

Q.  Therefore  you  threw  out  the  precinct  without  any  evidence  at  all  ? 

A.  Yes,  sir. 

Q.  Then  you  made  up  your  returns  ? 

A.  Yes,  sir. 

Q.  Who  wrote  those  returns  ? 

A.  I  did. 

Q.  Yon  wrote  them  yourself  ? 

A.  Yes,  sir. 

Q.  And  the  judge  signed  them  ? 

A-  Yes,  sir. 

Q.  "Mr.  Green  signed  them  ? 

A.  Yes,  sir. 

2  You  made  return  to  the  secretary  of  state  that  you  had  canvassed  the  vote  ? 
.  Yes,  sir. 

Q.  And  also  sent  one  to  the  governor  that  you  had  canvassed  the  vote  ? 
A.  Yes,  sir. 

Q.  The  returns,  so  far  as  you  knew,  appeared  to  be  regular  from  the  different 
precincts,  did  they? 
A.  Yes,  sir. 

Q.  Who  was  the  chairman  of  the  board  of  canvassers  ? 
A.  The  judge. 

Q.  Who  made  the  suggestion  to  throw  out  Johnsvillo  ? 
A.  He  did  himself. 

Q.  Who  made  the  suggestion  to  throw  out  the  Darbyvillo  precincts  ? 
A.  He  did. 

Q.  And  yon  sustained  him  in  it  ? 
A   Yes,  sir. 

Q.  Mr.  Green  sustained  him  in  it  also? 
A.  Yes,  sir. 

Mr.  Green  was  the  justice  appointed  by  Stearns  on  the  10th. 

2,  How  did  you  know  that  one  man  was  intimidated  at  Johusville  precinct  1 
.  Well,  we'just  heard  it  rumored  around  at  the  time. 

Q.  Was  there  any  other  cause  operating  in  your  mind  in  rejecting  the  Johnsvillo 
return  but  the  fact  that  you  had  heard  that  one  party  was  intimidated? 

A.  No,  sir;  that  was  all. 

Q.  Where  did  you  and  the  judge  and  the  justice  of  the  peace,  Green,  find  the  re 
turns  when  you  went  to  the  clerk's  office  to  make  the  canvass  t 

A.  After  we  got  the  light,  when  I  saw  them  first,  the  judge  had  them  in  his 
hands. 

Q.  Do  you  know  where  he  got  them  ? 

A.  I  do  not ;  I  think  he  got  them  out  of  a  desk. 

2.  Out  of  what  desk? 
.  In  the  clerk's  desk,  in  the  clerk's  office. 
Q.  Was  the  desk  unlocked  that  contained  these  papers  ? 
A.  Yes,  sir. 

Q.  And  nobody  was  in  the  clerk's  office  ? 
A.  No,  sir. 

Now  let  me  go  from  this  county  canvass  to  the  State  canvass. 
When  the  State  canvassers  were  at  work  there  were  certain  signifi 
cant  telegrams  passed  between  Florida  and  Washington ;  I  omit  the 
names  of  the  correspondents  except  that  of  the  governor,  Stearns,  the 
same  whose  certificate  is  before  you,  certifying  to  the  election  of 
the  Hayes  electors.  The  examination  is  thus  reported : 

Q.  Do  you  recollect  any  telegram  at  Lake  City  about  the  25th  of  December, 
asking — 

(I  will  say  the  chairman  of  the  national  republican  committee) — 
any  questions  about  attacking  the  returns  ? 

A.  I  remember  one  dispatch  (I  cannot  give  the  date)  asking  on  what  grounds  they 
should  assail  these  counties,  or'words  to  that  effect. 

1.  What  was  the  answer? 


Thereupon  the  State  canvassers  did  what  ?  They  took  the  third 
canvass  from  Baker  County  and  amended  it,  as  appears  in  the  CON 
GRESSIONAL  RECORD  of  February  1,  page  65,  and  added  "amended 
by  canvassing  all  the  precinct  returns,"  and  that  statement  in  the  full 
canvass  is  the  true  one  as  to  Baker  County ;  that  is,  they  got  at  a  true 
result  in  respect  to  that  county  by  taking  the  false  certificate  and 
amending  it  so  as  to  take  in  all  the  returns.  But  what  did  they  then 
do  ?  Stearns  was  a  candidate  for  the  office  of  governor.  Ho  was  then 
governor  and  he  was  a  candidate  for  the  succession.  His  opponent 
was  Mr.  Drew.  The  canvassers  were  Stearns's  appointees,  to  go  out 
of  office  with  him  and  to  remain  in  office  if  ho  was  counted  in.  They 
took  the  returns  from  the  other  counties  and  threw  out  enough  to  give 
the  State  to  the  Hayes  electors  and  to  Stearns  as  governor. 

Thus  the  matter  stood  upon  the  State  canvass  thus  made.  You  will 
observe  that  it  gave  the  true  vote  of  Baker  County,  but  eliminated 
from  the  votes  oi:  other  counties  certain  precincts  enough  to  elect  their 
patron  Stearns.  But  it  did  not  remain  so,  as  I  will  show  in  a  moment ; 
for  this  elimination  being  declared  by  the  supreme  court  illegal,  the 
canvassers  thereupon,  in  order  to  prevent  a  majority  appearing  for  the 
Tilden  electors,  recalled  their  amendment  of  the  Baker  County  false 
return,  and  used  it  in  all  its  falsehood. 

These  are  all  facts  which  we  offer  to  make  good  by  evidence  as  the 
Commission  may  prescribe,  by  a  cloud  of  witnesses  and  by  a  host  of 
documents. 

This  monstrous  fraud  being  thus  far  accomplished,  the  people  of 
the  State  took  it  upon  them  selves  to  see  if  they  could  right  the  wrong, 
and  they  did  it  with  a  spirit  and  a  success  which  does  them  all  honor. 
Not  even  your  own  native  State  of  New  Hampshire,  Mr.  President, 
could  have  more  manfully  stood  up  for  its  rights.  If  such  a  fraud 
had  been  perpetrated  there,  you  would  have  heard  a  voice  from  her 
people  that  would  have  shaken  the  everlasting  foundations  of  her 
granite  hills.  From  peak  to  peak,  and  from  the  easternmost  peak  to 
tho  shining  sea,  you  would  have  heard  a  roar  of  dissent  and  of  indig- 


6 


ELECTORAL  COMMISSION. 


1 1 a f  ion.  So  their  brethren  of  Florida  raised  their  voices  through  all 
the  flowery  peninsula,  and  they  accomplished  the  result  which  I  will 
now  give.  First,  Drew,  the  candidate  for  governor  on  the  other  side, 
went  into  the  courts  of  Jaw  as  a  law-abiding  citizen  should  do  and  will 
ever  do  so  long  as  he  can  get  justice  in  the  courts,  but  when  he  finds 
that  he  cannot  get  it  there  he  will  get  it  elsewhere.  He  went  into  the 
supreme  court  of  the  State  and  applied  for  a  mandamus  to  compel  this 
canvassing  board  to  restore  to  their  canvass  the  eliminated  precincts, 
and  the  supreme  court  decided  that  the  State  canvassers  had  no  power 
under  the  laws  of  Florida  to  eliminate  votes,  but  they  were  bound 
to  count  every  lawful  vote  put  into  the  ballot-box ;  that  they  were 
neither  electors  nor  judges  otherwise  than  of  what  votes  were  put  in ; 
and  in  obedience  to  that  they  restored  to  the  canvass  the  rejected 
precincts  and  certified  a  majority  for  Drew,  and  Drew  took  his  place 
and  is  now  the  lawful  and  accepted  governor  of  the  State. 

What  did  the  Tilden  electors  do  ?  They  commenced  in  a  circuit 
court  of  Florida  which  had  competent  jurisdiction  an  information  in 
the  nature  of  quo  wairanto  against  the  Hayes  electors.  They  charged 
in  the  information  that  they,  the  relators,  were  the  lawful  claimants 
of  the  office,  and  that  the  others  were  usurpers.  That  information 
was  commenced  before  the  Hayes  electors  voted  on  the  6th  of  Decem 
ber.  The  case  proceeded  in  the  regular  course  of  legal  proceedings 
until  it  came  to  trial  and  judgment,  first  upon  a  demurrer,  and  then 
the  demurrer  being  overruled  and  an  answer  interposed,  upon  the  is 
sues  and  proofs ;  and  here  is  the  judgment  of  the  court.  After  the 
recitals — 
It  is,  therefore,  considered  and  adjudged  that  aaid  respondents — 

Who  were  the  Hayes  electors,  Humphries  and  so  on — 
wore  not,  nor  was  any  one  of  them,  elected,  chosen,  or  appointed  as  such  electors  or 
elector,  or  to  receive  certificates  or  certificate  of  election  or  appointment  as  such 
electors  or  elector,  and  that  the  said  respondents  were  not,  upon  the  said  Gth  day 
of  December,  or  at  aiiy  other  time,  entitled  to  assume  or  exercise  any  of  the  powers 
and  functions  of  such  electors  or  elector ;  but  that  they  wore,  upon  the  said  day 
and  date,  mere  usurpers. 

Mr.  Representative  KASSON.  Will  the  objector  allow  me  to  state 
to  the  court  that  I  presume  we  are  not  considered  as  agreeing  to  the 
presentation  of  those  as  being  in  the  case  at  all  t 

Mr.  Commissioner  EDMUNDS.  They  are  merely  referred  to  for 
information. 

The  PEESIDENT.    "We  are  hearing  the  statement  of  one  side  now. 

Mr.  Representative  FIELD.  The  whole  record  is  certified  and  ex 
emplified  in  due  form. 

I  will  go  on  with  the  reading  : 

And  it  is  further  considered  and  adjudged  that  the  said  relators,  Ilobort  Bul 
lock,  Kobert  B.  Hilton,  Wilkinson  Call,  and  James  E.  Young — 

These  are  the  Tilden  electors — 

all  and  singular,  wore  at  said  election  duly  elected,  chosen,  and  appointed  electors 
of  President  and  Vice-President  of  the  United  States,  and  were  on  the  said  6th  day 
of  December,  1876,  entitled  to  be  declared  elected,  chosen,  and  appointed  as  such 
electors,  and  to  have  and  receive  certificates  thereof,  and  upon  the  said  day  and 
date,  and  at  all  times  since,  to  exercise  and  perform  all  and  singular  the  powers 
and  duties  of  such  electors,  and  to  have  and  enjoy  the  pay  and  emoluments  thereof. 
It  is  further  adjudged  that  respondents  pay  to  relators  the  costs  of  the  action. 

So  muchfor  the  action  of  the  judicial  department  of  Florida.  Every 
thing  was  done,  I  take  it  upon  me  to  say,  which  it  was  possible  to  do, 
so  that  I  am  warranted  in  asserting  that  if  there  be  any  way  known 
to  the  law  by  which  in  such  a  case  a  defrauded  State  can  right  itself 
through  the  courts  of  the  State,  that  way  has  been  taken. 

In  the  mean  time  the  Hayes  electors  had  voted  and  sent  their  lists 
of  votes  to  the  President  of  the  Senate,  with  the  certificate  of  Stearns 
to  their  appointment. 

There  was  no  canvass  or  certificate  of  the  State  canvassers  to  their 
appointment,  other  than  that  first  made,  which  the  supreme  court  had 
ordered  to  be  rectified  on  the  application  of  Mr.  Drew,  and  the 
rectification  of  which,  therefore,  could  go  no  further  than  the  can 
vass  of  the  governor's  vote.  The  same  rectification,  applied  to  the 
electoral  votes,  would  of  course  give  the  majority  to  the  Tilden  elect 
ors,  but  to  avoid  the  appearance  of  this  the  canvassers  pretended  to 
alter  the  vote  first  given  by  them  to  Baker  County,  and  reduce  it  to 
the  two  precincts  mentioned  in  the  third  and  false  return  of  the  county 
canvassers.  _  This  attempt  was  rebuked  by  the  supreme  court,  in  an 
order  directing  the  State  canvassers  to  confine  their  action  under  the 
mandamus  to  the  votes  for  governor ;  BO  that  there  really  appears  upon 
tho  records  of  the  State  canvassers  no  semblance  of  any  authority  for 
Stearns's  certificate  other  than  the  first  canvass,  which  the  sum-erne 
court  branded  as  illegal  and  false. 

Now  look  at  what  the  Legislature  of  Florida  has  done.  The  Leg 
islature  is  the  department  of  the  Florida  government  which  could 
alone  direct  how  tho  power  devolved  by  the  Federal  Constitution 
could  be  performed.  This  Legislature  has  passed  two  acts  to  which 
I  call  your  attention.  In  view  of  the  fact  that  the  supreme  court 
hadmade  the  decision  which  I  have  mentioned,  the  Legislature  passed— 

An  act  to  provide  for  a  canvass  according  to  the  laws  of  the  State  of  Florida  aa 
interpreted  by  tho  supreme  court,  of  tho  votes  for  electors  of  President  and  Virf 
President  cast  at  tho  election  held  November  7,  187G. 

The  law  was  approved  January  17.  It  provides  that  the  secre 
tary  ot  state,  attorney-general,  and  tho  comptroller  of  public  ac 
counts,  or  any  of  them,  together  with  any  other  member  of  the  cab 
inet  who  may  bo  designated  by  them,  shall  meet  forthwith  at  the 


office  of  the  secretary  of  state  pursuant  to  a  notice  to  bo  given  by 
the  secretary  of  state "  and  proceed  to  recanvass  the  votes.  They 
did  meet  and  recanvass  pursuant  to  that  law,  and  they  certified  the 
result  according  to  the  fact,  giving  the  majority  to  the  Tilden  elect 
ors.  The  second  law  declared  that  the  Tilden  electors,  naming  them, 
were  elected  on  the  7th  day  of  November  and  that  they  had  voted, 
and  directed  that  the  same  electors  should  meet ;  that  the  governor 
should  give  them  a  certificate  of  their  election,  pursuant  to  the  re- 
canvass  ;  and  that  they  should  make  out  duplicate  lists  of  the  votes, 
and  transmit  them  to  the  President  of  the  Senate  at  Washington  ; 
and  the  proceedings  under  that  law  make  up  the  third  return  which 
has  been  read. 

Mr.  Commissioner  BRADLEY.    What  was  the  second  return  ? 

Mr.  Representative  FIELD.  The  second  return  to  the  President 
of  the  Senate  was  tho  return  of  tho  Tilden  electors. 

The  return  No.  1  was  made  by  the  Hayes  electors  and  sent  with  tho 
certificate  of  Stearns  as  governor.  Return  No.  2  contains  the  certifi 
cates  of  tho  Tilden  electors  without  the  certificate  of  the  governor, 
but  with  a  certificate  of  the  attorney-general,  the  only  dissenting 
member  of  the  board  of  State  canvassers,  certifying  that  they  were 
elected.  Then  return  No.  3  contains  tho  action  of  the  State  authori 
ties  subsequently  to  the  two  first,  for  the  purpose  of  ratifying  and 
confirming  so  far  as  it  was  possible  for  the  State  authorities  to  do  it, 
the  second  return ;  and  they  therefore  not  only  passed  a  law  for  tho 
recanvass  of  the  votes,  which  recanvass  took  place  and  resulted  in  a 
certificate  of  the  election  of  the  Tilden  electors,  but  they  passed  an 
other  act  reciting  that  the  election  had  been  in  favor  of  the  Tilden 
electors  and  that  the  Tilden  electors  had  met  and  voted  on  the  Gth  of 
December  but  without  a  certificate  of  the  governor,  and  directing 
the  governor  of  the  State  to  forward  a  supplementary  certificate  for 
its  confirmation  ;  and  directing,  moreover,  for  abundant  caution,  that 
there  should  be  new  lists  made  out  and  a  new  certificate  by  these 
electors  who  wore  to  bo  re-assembled  for  the  purpose,  the  certificates 
all  to  be  forwarded  to  the  President  of  the  Senate  as  they  would  have 
been  but  for  tho  conspiracy  in  November.  Those  papers  make  the 
third  return.  I  will  read  the  recital  in  this  act  of  the  Legislature  of 
Florida : 

And  whereas  the  board  of  State  canvassers  constituted  under  the  act  approved 
February  27,  1872,  did  interpret  tho  laws  of  this  State  defining  the  powers  and  du 
ties  of  the  said  board  in  such  manner  as  to  give  them  power  to  exclude  certain  reg 
ular  returns,  and  did  in  fact  under  such  interpretation  exclude  certain  of  such, 
regular  returns,  which  said  interpretation  has  been  adjudged  by  the  supremo  court 
to  be  erroneous  and  illegal; 

And  whereas  the  late  governor,  Marcellus  L.  Stearns,  by  reason  of  said  illegal 
action  and  erroneous  and  illegal  canvass  of  the  said  board  of  State  canvassers,  did 
erroneously  cause  to  be  made  and  certified  lists  of  tho  names  of  tho  electors  of  this 
State,  containing  the  names  of  the  said  Charles  H.  Pearce,  Frederick  C.  Hum 
phries,  William  H.  Holden,  and  Thomas  Long — 

Being  the  Hayes  electors — 

and  did  deliver  such  lists  to  said  persons,  when  in  fact  tho  said  persons  had  not 
received  tho  highest  number  of  votes,  and,  on  a  canvass  conducted  according  to 
the  rules  proscribed  and  adjudged  as  legal  by  the  supreme  court,  wore  not  ap 
pointed  as  electors  or  entitled  to  receive  such  lists  from  the  governor,  but  Ilobort 
Bullock,  Robert  B.  Hilton,  Wilkinson  Call,  and  James  E.  W.  Yongo — 

Those  are  the  Tilden  electors — 

were  duly  appointed  electors,  and  were  entitled  to  have  thoir  names  compose  the 
lists  made  and  certified  by  the  governor,  and  to  have  such  lists  delivered  to  them : 
Now,  therefore,  the  people  of  the  State  of  Florida,  represented  in  senate  and,  as 
sembly,  do  enact,  <6c. 

The  certificate  is  in  effect  that  the  electors  who  met  and  voted  on 
the  Gth  of  December  were  the  true  choice  of  the  people  of  Florida ; 
and  the  same  electors  re-assembled  and  made  new  lists ;  they  did  not 
vote  anew  because  they  were  to  vote  on  the  6th  of  December,  but 
they  did  certify  anew  that  they  had  thus  voted  on  tho  Gth  of  Decem 
ber,  and  that  certificate,  with  tho  other  certificate,  was  forwarded  in 
duo  form,  as  I  have  stated,  to  the  President  of  the  Senate  at  thia 
Capitol. 

Now,  if  tho  Commission  please,  we  are  told  that  the  certificate  of 
the  governor,  Stearns,  which  has  been  forwarded  to  Washington 
annexed  to  the  lists  of  votes  of  the  Hayes  electors  countervails  all 
this  evidence,  and  that  no  matter  what  amount  of  testimony  we  may 
offer,  documentary  or  oral,  we  can  never  invalidate  tho  signature  of 
Marcellus  L.  Stearns;  and  it  is  to  that  question  that  I  shall  devote 
what  remains  of  my  address.  It  is  putting  tho  question  in  an  errone 
ous  form  to  put  it  thus,  "You  cannot  go  behind  tho  certificate."  Tho 
form  should  be  reversed,  Can  tho  certificate  go  before  the  truth  and 
conceal  it?  I  prove  these  facts  or  oifer  to  prove  them.  On  the  other 
side — if  I  have  rightly  understood  the  objections  made  yesterday  in 
the  joint  convention — on  the  other  side  there  is  no  suggestion  that 
we  are  not  right  in  the  facts  ;  there  is  no  averment  that  the  true  and 
lawful  vote  of  the  State  of  Florida  was  not  given  for  the  Tilden  elect 
ors;  but  the  claim  is  that  "there  is  the  certificate  of  M.  L.  Stearns, 
and  that  stands  as  a  barrier  against  all  these  witnesses,  and  tho  truth 
cannot  be  proven.  The  truth  is  buried  under  this  certificate.  Neither 
you  exercising  for  this  occasion  the  powers  of  tho  two  Houses  of  Con 
gress,  nor  tho  two  Houses  themselves,  acting  separately  or  together, 
can  consider  any  fact  whatever  to  the  contrary  of  which  Stearns  has 
certified." 

Lot  mo  ask  in  tho  first  place  upon  what  foundation  that  doctrine 
rests  ?  Who  tolls  you  that  you  aro  to  take  that  certificate  as  con 
clusive  evidence  against  anything  that  can  be  proved  on  the  other 
side  t  By  what  rule  of  ovideuco,  by  what  precept  of  law  aro  you  de- 


ELECTOBAL  COMMISSION. 


prived  of  tlio  right  to  investigate  the  truth  ?  la  it  not  a  universal 
rule  that  every  judge  is  invested  ex  necessitate  with  the  power  to  take 
into  consideration  all  pertinent  evidence  in  respect  to  the  facts  upon 
which  his  judgment  is  to  be  pronounced,  unless  there  is  some  positive 
law  declaring  that  certain  certificates  or  other  documentary  evidence 
shall  be  conclusive  ?  I  venture  to  say  that  that  is  the  universal  rule, 
and  that  there  is  no  court  of  general  jurisdiction  known  to  American 
or  Anglo-Saxon  law  in  which  it  is  not  a  fundamental  principle  that 
whenever  a  court  can  inquire  into  facts  necessary  to  its  judgment,  it 
may  take  all  the  pertinent  evidence,  that  is  to  say  all  evidence  that 
tends  to  prove  the  fact,  unless  it  is  restricted  by  some  positive  law. 
Now  then,  show  me  a  positive  law  that  makes  the  certificate  of 
Stearns  evidence  against  the  truth  ?  Where  is  it  ?  In  what  book  ? 
It  is  not  in  the  Constitution.  It  is  not  in  the  laws  of  Florida.  Is  it 
in  any  law  of  Congress  ?  The  only  act  of  Congress  applicable  is  that 
which  provides  that  the  executive  of  the  State  shall  deliver  to  the 
electors  a  certificate  that  they  are  such  electors,  but  that  act  does  not 
declare  that  this  certificate  shall  be  conclusive — neither  declares  it, 
nor  implies  it.  Suppose  I  offer  to  prove  that  the  certificate  is  wholly 
false,  fabricated  for  the  purpose  of  cheating  the  State  out  of  its  vote 
and  the  other  States  ?  Take  the  State,  one  of  the  oldest,  out  of  their 
rights  and  proudest  in  this  Union  of  States — the  State  of  Massachu 
setts,  of  which  my  friend,  Mr.  Commissioner  ABBOTT,  is  so  worthy  a 
representative,  and  suppose  that  the  honored  governor  of  that  State 
were  so  debased  as  to  certify  that  the  Tilden  electors  had  received 
the  votes  of  a  majority  of  the  good  and  true  voters  of  Massachusetts, 
will  any  man  tell  me  that  it  must  be  taken  as  absolutely  true,  that 
you  cannot  prove  it  to  be  false  ?  Where  is  the  law  for  that  ?  Nay, 
more,  I  venture  to  affirm  that  if  an  act  of  Congress  ho.d  declared  that 
that  certificate  should  be  conclusive,  the  act  would  have  been  uncon 
stitutional.  For  what  reason  ?  For  this  reason  :  The  Constitution, 
as  if  the  foresight  of  the  fathers  grasped  the  conflicts  of  future  years, 
declares  that  the  person  having  the  highest  number  of  votes  shall  be 
the  President,  not  that  the  person  declared  to  have  the  highest  number 
of  votes,  but  "  the  person  having  the  highest  number."  No  certificate 
can  be  manufactured  to  take  that  away.  If  you  had  declared  by  act 
of  Congress  in  the  most  express  and  positive  terms  that  the  certifi 
cate  of  the  governor  delivered  to  the  electors  should  be  conclusive 
against  all  proof,  you  would  have  transcended  the  limits  of  the  or 
ganic  law.  You  cannot  say  that  the  certificate  of  the  governor  of 
Massachusetts  shall  override  the  votes  of  the  electors  of  Massachu 
setts  in  their  choice  of  President.  Therefore  it  is  I  say  not  only  that 
you  have  not  done  it,  but  you  could  not  do  it ;  you  could  not  do  it 
if  you  would,  as  I  am  sure  you  would  not  if  you  could. 

The  language  of  the  act  of  Congress  is  not  as  strong  as  the  language 
of  the  State  laws  generally  respecting  the  canvass  of  votes.  Take  the 
casein  Wisconsin,  which  arose  in  the  courts,  of  the  contest  for  the  office 
of  governor.  There  a  law  of  the  State  had  declared  that  the  State 
canvassers  should  determine — I  think  that  is  the  language — should 
determine,  certify,  and  declare  who  was  governor.  A  person  came 
into  the  office  of  governor  upon  such  a  certificate  declaring  that  he 
was  elected,  and  a  rival  claimant  went  into  the  courts  with  a  writ  of 
quo  warranto,  and  was  met  there  by  the  ablest  counsel  in  the  State 
with  the  argument,  "  You  cannot  inquire,  because  the  certificate  of 
the  State  canvassers  is  conclusive."  "  No,"  said  the  court,  in  an  opin 
ion  which  does  them  great  honor  and  will  stand  as  a  record  of  their 
learning,  their  patriotism,  and  their  inflexible  firmness,  "  the  title  of 
governor  depends  upon  the  votes  of  the  people,  upon  those  little  bal 
lots  that  declare  their  supreme  will ;  the  question  is  not  who  have 
certified  but  who  have  voted,"  and  the  court  declared  the  claimant 
entitled  and  threw  out  the  usurping  governor. 

Is  not  your  right  to  inquire  into  the  very  truth  implied  by  the  law 
under  which  you  act?  What  are  you  to  do?  You  are  to  declare 
whether  any  and  what  votes  are  the  votes  provided  by  the  Constitu 
tion,  not  to  declare  what  are  the  votes  certified  by  Governor  Stearns. 
That  was  known  well  enough  beforehand.  You  are  to  certify  what 
are  the  lawful  votes  upon  which  a  President  of  forty-five  millions  of 
people  is  to  be  inducted  into  office. 

Is  not  the  same  right  implied  in  the  notion  which  I  find  to  prevail 
everywhere,  that  Congress  might  authorize  a  writ  of  quo  warranto  to 
try  the  title  of  President  within  the  purview  of  the  Constitution  ? 
Can  that  be  doubted  ?  The  Constitution  has  declared  that  the  per 
son  having  the  highest  number  of  votes  shall  be  the  President ;  not 
the  one  certified.  Congress  has  not  as  yet  invested  any  tribunal  with 
the  power  to  try  the  title  to  the  Presidency  by  quo  warranto.  No  such 
law  exists,  I  am  sorryto  say.  Such  a  law,  if  I  might  be  permitted  to 
say  so,  ought  to  be  made.  It  is  no  small  reproach  to  our  statesman 
ship  that  for  a  hundred  years  no  law  has  been  provided  for  this  great 
exigency.  I  know  that  one  eminent  member  of  this  Commission  has 
labored  assiduously  to  procure  the  passage  of  such  a  law,  and  of  all 
his  titles  to  respect  I  am  sure  that  will  be  especially  remembered 
hereafter. 

Mr.  Commissioner  BRADLEY.  Does  not  the  law  of  the  District 
apply  to  the  case  ? 

Mr.  Representative  FIELD.  I  think  not,  sir.  I  should  be  very 
glad  to  learn  that  it  does.  The  judiciary  act  of  1789,  as  if  exindustria, 
omitted  to  mention  writs  of  quo  warranto.  It  give  the  several  courts 
power  to  issue  writs  of  mandamus  and  certain  other  writs,  but  not 
that  of  quo  warranto.  I  know  that  the  statutes  lately  passed  give  a 
right  to  a  quo  warranto  in  respect  to  certain  offices,  enumerating  thorn, 


arising  out  of  the  amendments  to  the  Constitution  providing  for  the 
emancipated  slaves ;  but  I  do  not  find  any  provision  whatever  for  a 
writ  of  quo  warranto  to  try  the  title  to  any  such  office  as  that  of  Presi 
dent  or  presidential  elector. 

Mr.  Commissioner  BRADLEY.  You  are  aware  of  course  that  the 
whole  body  of  the  Maryland  law  as  existing  in  1801  is  the  municipal 
law  of  this  District  so  far  as  not  modified. 

Mr.  Representative  FIELD.    I  am. 

Mr.  Commissioner  BRADLEY.  I  do  not  know  whether  there  is 
any  such  provision  in  those  laws  or  not. 

Mr.  Representative  FIELD.  Of  course  I  speak  entirely  under  sub 
mission  to  the  better  knowledge  of  the  court.  I  have  not  been  ablo 
to  satisfy  myself  that  there  is  any  provision  for  a  writ  of  quo  warranto 
in  the  case  of  President.  But  my  argument  is  that,  whether  there  be 
a  law  now  existing  or  not,  it  is  competent  to  Congress  to  pass  such  a 
law,  and  if  a  law  to  provide  for  a  writ  of  quo  warranto  would  be 
constitutional,  then  it  is  constitutional  to  impose  a  like  duty  on  any 
other  tribunal  to  investigate  the  title.  That  is  to  say,  if  you  could 
devolve  that  duty  upon  any  tribunal  by  means  of  a  writ  of  quo  war 
ranto,  you  can  devolve  it  by  other  means.  If  the  governor's  certifi 
cate  would  not  be  conclusive  there,  it  is  not  conclusive  here.  The 
right  to  inquire  into  the  fact  exists  somewhere,  and  if  nowhere  else, 
it  must  be  here. 

Thus  thinking  that  Congress  could  devolve  upon  some  tribunal  the 
authority  to  inquire  into  the  title  of  the  President,  and  that  such  au 
thority  would  necessarily  give  to  the  tribunal  investigating  the  right 
to  go  into  the  truth  notwithstanding  any  certificate  to  the  falsehood, 
I  argue  that  here  before  this  Electoral  Commission,  invested  with  all 
the  functions  of  the  two  Houses,  you  can  inquire  into  the  truth  no 
matter  what  may  have  been  certified  to  the  contrary. 

Furthermore,  I  submit  to  the  commission  that  there  is  another  rule 
of  law  which  necessarily  leads  us  to  answer  affirmatively  the  ques 
tion  whether  the  truth  can  be  given  in  evidence  notwithstanding  the 
certificate ;  and  that  is  that  fraud  vitiates  all  transactions  and  can 
always  be  inquired  into  in  every  case  except  possibly  two.  I  will 
not  argue  now  that  the  judgment  of  a  court  of  record  of  competent 
jurisdiction  can  be  impeached  collaterally  for  fraud  in  the  judge. 
Opinions  differ.  If  it  cannot  be  impeached  it  must  bo  because  such 
an  impeachment  would  lead  to  an  inquiry  that  would  be  against  pub 
lic  policy.  It  would  be  a  scandal  to  inquire  into  the  bribery  or  cor 
ruption  of  a  judge  while  the  judge  is  sitting  to  administer  justice ; 
and,  therefore,  from  motives  of  public  policy,  it  may  be  the  rule  that 
until  the  judge  is  impeached  and  removed  you  cannot  inquire  into  the 
corruption  of  his  acts.  And  it  may  also  be  true  that  you  cannot  in 
quire  into  the  validity  of  an  act  of  a  Legislature  upon  the  ground  of 
fraud  or  bribery.  But,  with  those  two  exceptions,  I  venture  to  claim 
that  there  is  no  act  and  no  document  anywhere  that  you  cannot 
impeach  for  fraud.  Now,  this  canvassing  board  and  this  governor 
were  not  invested  with  any  such  sanctity  as  are  judges  of  courts  of 
record.  They  were  not  dispensing  justice  between  litigating  parties, 
and  it  would  not  be  against  public  policy  to  inquire  into  the  corrup 
tion  or  invalidity  of  their  acts.  Not  a  single  consideration  that  I  have 
ever  heard  of  or  which  I  can  imagine  would  lead  us  to  the  conclusion 
that  you  cannot  inquire  into  the  truth  of  their  certificates ;  and  I  put 
it  to  the  Commission  that  they  corruptly  acted  if  they  were  bribed  or 
led  astray  by  hunger  for  office  or  the  thirst  for  power  or  the  tliirst  for 
gold ;  you  can  impeach  their  acts.  Who  is  it  whose  acts  we  are  now 
seeking  to  impeach  ?  It  is  the  then  governor  of  Florida,  Stearns ; 
Stearns,  the  man  who  sent  the  telegram  asking  on  what  grounds  the 
votes  of  counties  could  be  thrown  out,  and  who  received  for  answer, 
fraud,  intimidation,  or  something  else ;  Stearns,  the  man  who  con 
trolled  the  canvassing  board  sitting  to  certify  whether  he  and  they 
were  to  continue  in  office. 

Is  it  a  true  proposition  of  law  that  you  cannot  inquire  whether  ho 
has  acted  f  audulently  ?  If  it  be  true  that  the  certificate  of  the  gov 
ernor  is  conclusive  evidence  that  these  persons  were  elected,  then  it 
follows  that  the  certificate  would  be  sufficient  if  there  were  no  election 
at  all.  Yes,  suppose  I  prove  or  offer  to  prove  that  in  point  of  fact  on 
the  7th  day  of  November  there  was  no  election  at  all  in  the  State  of 
Florida,  that  no  man  cast  a  vote,  no  polls  were  opened,  no  man  thought 
of  voting,  would  this  certificate  signed  "  M.  L.  Stearns,"  prove  that 
the  four  Hayes  electors  were  duly  chosen  ? 

To  that  complexion  mast  it  come  at  last. 

There  is  no  middle  ground.  If  you  can  inquire  into  the  truth  of 
that  certificate,  you  can  inquire  into  every  fact  and  show  whether  it 
be  true  or  false. 

Such,  Mr.  President  and  gentlemen  of  the  Commission,  is  as  brief  a, 
statement  as  I  could  make  of  the  facts  and  the  law  as  we  understand 
them  to  be.  The  greatness  of  the  question  in  respect  to  the  dignity 
of  the  presidential  office  and  the  vast  interests  depending  upon  it,  is 
as  nothing  compared  with  the  moral  elements  involved  ;  for  true  as 
it  is  that  the  person  upon  whom  your  decision  will  confer  the  office 
for  four  years  will  be  the  Chief  Magistrate  of  forty-five  niilllions  of 
people,  Commander-in-Chief  of  your  Army  and  Navy,  the  organ  be 
tween  you  and  all  foreign  States,  the  bestower  of  all  offices,  the  fount 
ain  of  honor,  and  the  distributer  of  power,  the  executor  of  your  laws ; 
but  that  is  as  nothing  compared  with  the  greater  question  whether 
or  not  the  American  people  stand  powerless  before  a  gigantic  fraud. 
Here  is  the  certificate ;  one  feels  reluctant  to  touch  it.  Hold  it  up  to 


ELECTORAL  COMMISSION. 


the  light.  It  is  black  with  crime.  Pass  it  round;  let  every  eye  see 
it ;  and  then  tell  me  whether  it  is  fit  to  bestow  power  and  create  dig 
nity  against  the  will  of  the  people.  One  of  the  greatest  poets  of  the 
palmy  days  of  English  literature,  writing  of  the  coming  of  our  Sav 
iour,  has  said : 

.And  ancient  fraud  Hhall  fail, 

Keturning  justice  lift  aloft  her  scale. 

Ancient  fraud !  Was  there  ever  fraud  like  this  ?  In  previous  ages 
fraud  has  succeeded  only  because  it  has  been  supported  by  the  sword 
and  protesting  peoples  have  been  powerless  before  armed  battalions. 
Never  yet  in  the  history  of  the  world  has  a  fraud  succeeded  against 
the  conscience  aud  the  will  of  a  self-governing  people.  If  it  succeeds 
now,  let  us  hang  our  heads  for  shame ;  let  us  take  down  from  the 
Dome  of  this  Capitol  the  statue  which  every  morning  faces  the  coming 
light ;  let  us  clothe  ourselves  with  sackcloth  aud  sit  in  ashes  forever. 

Mr.  Representative  TUCKER.  With  submission  to  the  Commis 
sion,  the  objections  which  are  made  by  members  of  the  two  Houses 
of  Congress  to  the  counting  of  the  votes  of  the  electors  who  voted 
for  Messrs.  Hayes  aud  Wheeler  are  to  be  found  printed  this  morning 
in  a  form  to  which  I  call  the  attention  of  the  Commission  for  a  mo 
ment.  The  first  objection  is : 

That  the  said  Charles  EL  Pearce — 

Aud  others — 

wore  not  appointed  by  the  said  State  of  Florida  in  such  manner  as  its  Legislature 
had  directed. 

The  second  is : 

That  "Wilkinson  Call— 

And  others,  the  Tilden  electors — 
were  appointed  by  the  said  State  in  such  manner  as  its  Legislature  direpted. 

The  third  states  that  the  qualified  electors  of  the  said  State  in  man 
ner  as  provided  by  the  law  of  Florida  did  elect  Wilkinson  Call  and 
others,  the  Tildeu  electors. 

The  fourth  is : 

That  the  pretended  certificate,  or  paper  purporting  to  be  a  certificate,  signed  by 
M.  L.  Stearns  as  governor  of  said  State,  of  the  appointment  of  the  said  Charles  II. 
Pearce  *  *  *  was  and  is  in  all  respects  untrue,  and  was  corruptly  procured  aud 
made  in  pursuance  of  a  conspiracy  between  the  said  M.  L.  Stearns — 

And  the  said  Pearce  and  others ;  and  so  on : 

To  assert  and  sot  up  fictitious  and  unreal  votes  for  President  and  Vico-Prosidont. 

The  fifth  is : 

That  the  said  papers  falsely  purporting  to  be  the  votes  for  President  and  Vice- 
Presidont  of  the  State  of  Florida,  which  are  fictitious  aud  unreal  and  do  not  truly 
represent  any  votes  or  lawful  acts,  *  *  *  wore  made  out  and  executed  in  pur 
suance  of  the  same  fraudulent  conspiracy. 

The  sixth  states  at  length  what  I  will  state  succinctly,  that  by  a 
quo  ivarranto  proceeding  initiated  prior  to  the  vote  given  for  Hayes 
aud  Wheeler  by  these  pretended  electors  on  the  6th  of  December,  and 
which  resulted  in  a  judgment  on  the  25th  or  26th  of  January,  their< 
election,  their  title  to  the  offices  of  electors  for  the  State  of  Florida, 
was  declared  utterly  null  and  void,  and  that  they  were  usurpers  and 
pretenders  to  the  said  office. 

Mr.  Commissioner  MORTON.  May  I  inquire  of  the  counsel  who  were 
made  parties  to  that  proceeding  ? 

Mr.  Representative  TUCKER.  The  State  of  Florida  ex  relatione 
Wilkinson  Call  and  others,  the  Tilden  electors,  as  plaintiffs,  against 
Pearce  and  others,  the  Hayes  electors. 

Mr.  Commissioner  MORTON.  Was  the  governor  a  party  to  the 
proceeding  ? 

Mr.  Representative  TUCKER.  No;  he  was  not  a  party.  Now 
sirs,  these  are  succinctly  the  objections  made  and  they  may  be  sum 
marized  thus:  We  object  to  these  votes  being  counted,  because  we 
say  that  these  men  were  not  elected  according  to  the  law  of  Florida, 
and  not  being  so  elected  can  have  no  title  to  the  office ;  secondly,  we 
hold  that,  even  if  they  had  been  elected  according  to  the  forms  of  the 
law  of  Florida,  their  election  was  tainted  with  fraud  and  is  void ;  and 
the  whole  question  presented  to  this  tribunal,  the  question  presented 
to  the  two  Houses  of  Congress,  and  which  they  have  substituted  this 
tribunal  in  their  stead  to  decide,  is  simply  this:  Is  there  any  power 
in  the  Constitution  under  which  we  live  by  which  a  fraudulent  and 
illegal  title  to  the  office  of  President  can  be  prevented  ?  Must  a  man 
that  everybody  knows  to  be  a  usurper  be  pronounced  by  the  two 
Houses  of  Congress  or  by  this  tribunal  in  their  stead  to  have  a  valid 
title  to  the  office  when  all  the  world  knows  he  has  not  ?  I  will  not 
ask  whether  the  decision  of  a  returning  board  is  to  screen  the  ille 
gality  and  fraud  from  your  vision,  but  whether  the  returning  boards 
can  run  their  fingers  into  the  eyes  of  this  tribunal  and  prevent  their 
seeing  what  all  the  world  sees  ?  Shall  the  two  Houses  of  Congress, 
the  sentinel  guards  appointed  by  the  Constitution  against  the  usur 
pation  of  this  high  office,  shall  this  tribunal  as  the  substitute  for  those 
sentinel  guards,  permit  fraud  to  crawl  with  slimy  trail  into  the 
executive  seat,  whence  it  may  spring  from  its  coil  and  sting  with 
fatal  fang  the  life-blood  of  the  grandest  Republic  in  the  world  ?  Is 
the  power  of  a  returning  board,  tainted  with  fraud,  based  upon  law 
lessness,  to  conclude  the  judgment  of  the  American  people  and  put 
a  usurper  in  the  seat  of  Washington  ?  That  is  the  question. 

Now,  sirs,  whatever  may  be  the  decision  of  this  tribunal,  I  shall  die 
in  the  faith  of  my  fathers,  that  the  fathers  of  the  Constitution  never 
framed  an  instrument  of  that  kind  and  said  that  their  posterity  were 
to  live  under  it. 


What  is  the  power  of  these  two  Houses  ?  I  hare  discussed  that 
question  elsewhere.  If  your  honors  will  save  me  the  labor  of  repeat 
ing  it  here,  I  will,  as  soon  as  I  can  get  advance  sheets  of  it,  lay  be 
fore  your  honors  a  copy  of  the  speech  delivered  by  me  in  the  House 
of  Representatives  on  that  point ;  but  I  take  it,  summarizing  the 
proposition,  that  when  the  Constitution  declared  that  these  votes 
were  to  be  counted  in  the  presence  of  the  two  Houses  of  Congress, 
when  it  declared  that  they  were  to  be  counted,  that  they  wore  the 
votes  of  electors  to  be  counted,  that  they  were  the  votes  of  electors, 
real  electors,  not  pretended  electors,  to  be  counted,  it  was  intended 
that  the  two  Houses  of  Congress,  and  therefore  that  this  tribunal  in 
their  place,  should  see  that  there  was  no  fraudulent  counting  of  pre 
tended  votes  for  President  of  the  United  States. 

Now,  taking  up  the  line  of  argument  which  was  presented  by  my  able 
and  distinguished  friend  on  my  left,  [Mr.  Field,]  I  apprehend  that  the 
powers  of  the  two  Houses  of  Congress  and  of  this  tribunal  as  their 
substitute  are  not  less  in  this  inquiry  than  the  powers  of  a  court  upon 
a  quo  warranlo  proceeding.  We  are  now  standing  as  the  guards  to  the 
entrance  of  the  executive  department  and  wo  are  to  let  no  man  pass 
that  has  not  the  pass-word  of  the  people  of  the  United  States.  We 
have  a  right  to  question  his  title,  and  if  he  has  no  title  never  to  per 
mit  him  to  enter. 

What  says  a  distinguished  authority  upon  this  subject,  which  I 
found  this  morning  on^tho  table  ?  I  must  beg  the  pardon  of  the  Com 
mission  that  what  I  shall  say  shall  not  be  overloaded  with  learning, 
for  I  have  had  no  opportunity  of  looking  iuto  this  question.  lu  High 
on  Extraordinary  Legal  Remedies,  section  760,  it  is  stated  : 

Judgment  of  ouster  may  be  given  against  one  who  was  not  duly  elected  to  the 
office  claimed,  notwithstanding  the  return  or  certificate  of  a  board  of  canvasser* 
of  the  election  in  his  favor,  since  such  return  is  by  no  means  conclusive  aud  the 
courts  may  go  behind  it  and  examine  the  facts  as  to  the  legality  of  the  election. 
Nor  will  the  holding  of  a  commission  for  the  office  prevent  the  court  from  giving 
judgment  of  ouster,  if  the  incumbent  was  not  legally  elected,  since  the  title  to  the 
office  is  derived  from  the  election  and  not  from  the  commission.  Even  though  tho 
incumbent  were  properly  elected  in  the  first  instance,  yet  if  he  was  never  sworn 
iuto  the  office,  judgment  of  ouster  may  be  given. 

That  is  the  key-note  of  the  remarks  that  I  shall  make  to  your 
honors.  Who  appoint  electors  ?  The  Constitution  declares  that  each 
State  shall  appoint  so  many  electors  as  it  is  entitled  to  Senators  and 
Representatives  in  Congress.  "Each  State  shall  appoint."  What  is 
the  meaning  of  that  ?  I  apprehend  that  although  that  word  "  State  " 
in  the  Constitution  has  three  or  four  meanings,  one  indicating  the  terri 
tory  in  which  the  population  lives ;  another  the  people  themselves  as 
an  organic  body-politic,  a  sovereign  power — I  trust  I  trench  upon  no 
proprieties  in  saying  that  a  State  is  a  sovereign  power  and  a  body 
politic ;  and  another  is  the  State  government.  In  this  particular  case, 
I  apprehend  it  means  the  Sto,te  as  a  body-politic,  as  an  organic 
society,  not  its  government,  because  the  next  sentence  says  that  each 
State  shall  appoint  "  in  such  manner  "  as  its  "  Legislature  may  direct." 
There  you  have  the  functional  power  of  election  in  the  State  as  a 
body-politic  ;  the  manner  of  the  election  to  be  prescribed  and  directed 
by  its  Legislature.  The  law-making  power  of  the  State  directs  the 
manner ;  the  substantial  power  is  in  the  State. 

Now,  let  us  look  at  this  for  a  moment,  and  I  beg  the  Commission  to 
bear  with  me  in  making  a  distinction  which  I  have  not  seen  made  as 
clearly  as  it  appears  to  my  mind  ;  and  if  there  is  any  value  in  it,  I 
hope  I  may  be  permitted  to  make  it  clear.  It  is  this :  In  every  ap 
pointment  or  election  two  elements  enter :  first,  the  exercise  of  tho 
elective  function;  second,  the  exercise  of  the  determining  function. 
The  elective  function  is  in  tho  State ;  is  in  Florida,  in  the  body  of  the 
sovereign.  The  determining  function  is  in  a  returning  board.  Now, 
wherever  tho  determinant  power  usurps  the  elective  function,  then 
it  must  be  set  aside  and  adjudged  void ;  that  is  to  say,  wherever, 
under  the  name  of  determining  and  deciding  who  is  elected,  tho 
board  or  the  body  which  so  decides  really  elects,  then  it  is  a  usurp 
ing  power  and  it  has  transcended  its  authority ;  it  has  acted  ultra  vires; 
and  its  act  must  be  declared  void  by  any  tribunal  before  whom  its 
action  comes  for  adjudication.  I  therefore  say  that  in  Florida  the 
elective  function  was  in  the  body  of  the  people  of  the  State ;  who 
ever  the  body  of  the  people  of  the  State  elected  to  be  its  electors 
were  its  electors  and  had  title  to  the  office,  according  to  the  language 
of  the  authority  I  have  read.  The  question  of  whether  they  should 
be  determined  to  have  been  elected  by  the  board  of  canvassers  is  an 
entirely  different  question.  If  the  board  of  canvassers,  either  con 
trary  to  law,  or  transcending  their  legal  authority,  or  under  their 
legal  authority,  fraudulently  counted  in  as  elected  those  who  wore 
not  elected  by  the  people,  their  act  was  void. 

I  will  go  no  further  in  this  controversy  than  just  to  say  that  if  it 
cau  be  shown  that  the  returning  board  or  the  executive  of  the  State 
of  Florida  transcended  their  legal  authority  in  giving  the  return  to 
these  electors,  then  their  action  is  simply  ultra  vires  and  a  nullity,  or, 
if  acting  within  the  limits  of  their  authority  they  used  their  legal 
power  fraudulently  and  falsely,  then  that  also  is  a  usurpation  of  the 
elective  function  and  is  void,  because  I  apprehend  that  if  I  can  show, 
as  it  has  been  shown  or  seems  to  have  been  shown  iu  some  part  of 
this  Capitol  very  recently,  that  if  a  returning  board  tells  its  clerk  to 
take  178  votes  bodily  from  one  side,  for  Tildeu,  and  put  them  over  to 
Hayes,  that  is  not  a  determining  power ;  that  is  t  lie  elective  function ; 
and  if  this  tribunal  permitted  such  a  thing  as  that  to  stand,  it  would 
permit  an  oligarchic  board  in  Louisiana  or  Florida  to  elect  the  elect 
ors  against  the  law  of  the  State  and  against  the  will  of  tho  people. 


ELECTORAL  COMMISSION. 


9 


The  power  of  determination  can  never  be  valid  where  it  usurps  the 
elective  function  which  is  vested  by  the  law  in  any  other  body. 

I  go  a  step  further.  I  apprehend  that  if  the  primary  determinant, 
if  I  may  invent  a  term,  should  decide  in  favor  of  certain  electors  and 
there  should  be  provided  by  the  proper  authority  an  ultimate  deter 
minant  authority,  or,  to  come  down  to  the  concrete  proposition,  if  the 
primary  determinant  authority  in  Florida  was  the  returning  board 
and  there  was  provided  by  the  laws  of  the  State  an  ultimate  deter 
minant  authority  in  the  form  of  a  judicial  tribunal,  then  your  honors 
are  not  going  behind  State  authority  to  pick  a  flaw  in  the  election  of 
their  electors  if  you  give  force  and  validity  to  the  action  of  the  re 
turning  board  as  reviewed  by  the  judicial  authority  and  as  adjudged 
by  the  judicial  authority.  In  other  words,  the  judicial  procedure  in 
that  case  becomes  a  part  of  the  determinant  authority  in  the  election 
provided  by  these  States,  and  therefore  you  say  that  a  man  is  elected 
in  the  manner  prescribed  by  the  State  law,  when  he  is  determined  to 
be  elected  by  the  State  law,  and  that  determination  is  revised  and 
adjudged  upon  by  the  State  judiciary. 

I  apprehend,  therefore,  that  unless  the  primary  determinant  au 
thority,  that  is,  the  board  under  State  law,  is  conclusive,  not  only  in 
its  action,  but  conclusive  as  to  the  extent  of  its  own  powers,  then  we 
must  regard  the  judicial  proceedings  in  Florida  upon  the  action  of 
these  electors  as  a  part  of  that  determinant  power  which  the  State 
has  provided  against  fraud  and  illegality  in  the  exercise  of  the  elective 
function ;  and  therefore  I  apprehend  that,  if  there  was  nothing  in  the 
law  of  Florida  which  gave  a  judicial  power  of  supervision  to  the  ac 
tion  of  the  board,  the  two  Houses  of  Congress,  and  this  Commission  as 
substituted  for  the  two  Houses  of  Congress  with  all  the  powers  vested 
in  both  or  either  of  them,  have  a  right  to  plunge  down  into  this  mass 
of  corruption  and  unkennel  fraud;  and  that  this  tribunal  has  not 
only  the  power,  but  it  is  its  solemn  duty  under  God  and  before  this 
people  to  see  whether  these  pretended  electors  are  mere  pretenders 
or  the  real  representatives  of  the  voice  of  Florida. 

There  can  be  no  plainer  proposition,  in  my  judgment,  than  that  all 
action  in  court  even,  particularly  a  court  of  inferior  and  limited  ju 
risdiction,  which  is  ultra  vires,  is  void,  and  that  every  act  done  by  an 
inferior  tribunal,  even  within  the  forms' of  law,  if  it  be  fraudulent,  is 
void.  To  say  that  the  two  Houses  of  Congress — I  will  not  use  the 
illustration  in  reference  to  this  honorable  Commission — that  the  two 
Houses  of  Congress,  in  the  presence  of  whom  these  votes  are  counted, 
are  to  sit  with  their  ringers  in  their  mouths  and  see  a  fraud  which 
they  cannot  prevent,  and  witness  an  illegality,  the  triumph  andvic- 
t  ory  of  which  they  have  only  to  countenance,  is  to  say  that  our  fathers 
meant  that  their  posterity  should  be  handed  over  to  the  power  of 
those  who  would  practice  a  fraud  and  an  illegality  upon  their  rights. 

I  need  not  refer  your  honors  to  any  authority  upon  these  points. 
The  great  leading  authority  of  the  Duchess  of  Kingston's  case  as  to 
the  validity  or  invalidity  of  a  fraudulent  judgment  of  course  is 
familiar  to  you  all.  Your  honors  will  find  that  case  elaborately  dis 
cussed  in  Smith's  Leading  Cases. 

I  state  these  propositions  as  clear  law : 

First,  that  where  a  determinant  power  in  these  elections  transcends 
its  authority,  it  usurps  the  elective  function  and  is  void.  It  elects 
instead  of  determining. 

Second,  where  the  determinant  power  fraudulently  decides,  it  as 
sumes  to  elect  and  its  act  is  void. 

I  beg  this  Comrnissionto  keep  distinctly  in  their  minds,  as  I  have 
no  doubt  they  will,  what  to  my  mind  is  perfectly  clear  and  lies  at  the 
very  root  of  this  whole  controversy,  the  distinction  between  the  power 
of  election  and  the  power  of  determining  on  the  election.  The  power 
of  election  is  in  the  suffragans  of  Florida  and  the  power  of  determin 
ing  on  the  election  was  in  this  board  of  three.  Now,  if  the  board  of 
three  transcend  their  merely  determining  power  and  under  color  of 
determining  really  exercise  the  elective  power,  it  is  an  usurpation 
that  must  be  trampled  upon  not  only  by  this  tribunal  but  by  the  two 
Houses  of  Congress. 

I  hold  that  every  illegal  or  fraudulent  act  of  a  returning  board  or 
of  any  determining  board  in  an  election  is  open  to  inquiry.  We  may 
inquire  into  their  jurisdiction.  If  they  have  not  transcended  their 
jurisdiction,  then  the  question  is  have  they  executed  it  bonafideor 
mala  fide  ?  If  they  have  not  transcended  their  jurisdiction  and  have 
exercised  it  in  bad  faith,  it  is  void.  Fraud  taints  the  whole  act.  I 
beg  your  honors  and  the  other  gentlemen  of  the  Commission  to  refer 
to  what  is  very  familiar  to  your  honors,  that  class  of  cases  that  be 
gan  in  a  decision,  I  think,  of  Pierce  against  sombody  in  the  twenty- 
lirst  volume  of  Howard  and  in  the  twenty-third  volume  of  Howard, 
where  the  court  take  the  distinction  between  the  exercise  of  a  corpo 
rate  power  ultra  vires  and  the  exercise  of  a  corporate  power  infra  vires, 
and  against  the  internal  order  of  the  board.  In  every  case  where  a 
corporate  act  is  ultra  vires,  no  matter  whether  with  the  whole  sanction 
and  faith  of  all  the  corporators,  it  is  void,  as  the  corporation  can  only 
act  under  the  powers  of  its  charter.  So  I  hold  here.  Here  is  a  petty 
corporation,  this  trio  of  oligarchs,  who  are  set  there  to  determine  upon 
an  election,  and  if  they  trench  upon  the  elective  function  and  transcend 
their  authority  their  act  is  void. 

This  being  so  I  advance  to  another  proposition.  If  the  election  is 
determined  by  a  board,  and  a  State  court  of  competent  jurisdiction 
decides  its  action  to  be  illegal  or  fraudulent,  decides  that  it  was  an 
usurped  authority  or  an  authority  infra  vires,  but  exercised  fraudu 
lently,  I  say  that  that  judgment  is  conclusive  upon  these  two  Houses 


and  upon  this  tribunal,  unless  the  court  so  deciding  was  itself  with 
out  jurisdiction  or  acted  mala  fide.  Therefore  I  say  to  gentlemen  here, 
if  they  want  to  stand  upon  the  ground  of  not  being  permitted  to  go 
behind  State  authority  in  these  matters,  they  must  take  the  whole  of 
the  State  authority;  and  the  trio  of  oligarchs,  with  Governor  Stearns 
at  their  head,  making  a  quartette,  are  not  the  only  authority  of  the 
State  of  Florida,  but  that  the  authority  of  its  judiciary  pronouncing 
upon  the  title  of  this  trio,  and  the  authority  of  its  supreme  court  must 
be  taken  into  consideration  as  a  part  of  that  State  authority  which 
we  are  called  upon  so  to  respect. 

Now  I  say  that  this  quo  warranto  by  the  supreme  court  in  the  case 
of  the  State  of  Florida  ex  relatione  Drewagainst  Stearns  and  others 

Mr.  Commisssioner  HOAR.  Mr.  Tucker,  do  your  papers  contain 
the  petition  for  the  writ  of  quo  warranto  or  the  writ  itself  if  I  see  here 
the  judgment. 

Mr.  Representative  TUCKER.  The  original  papers  are  here.  They 
are  not  printed;  only  the  judgment  was  printed. 

Mr.  Commissioner  HOAR.  I  was  looking  to  see  whether  the  ap 
plication  was  for  a  writ  of  quo  warranto  to  determine  a  tide  to  an 
office  which  the  respondent  formerly  held  or  one  which  he  held  at  the 
time  of  issuing  the  writ. 

Mr.  Representative  TUCKER.  I  cannot  go  into  that  just  now,  if 
you  please.  My  time  has  nearly  run  out.  It  was  served  on  the  Gth, 
before  the  parties  had  perfected  their  act,  while  they  were  performing 
their  function,  and  therefore  before  they  had  cast  their  vote.  It  was 
served  upon  them  then  ;  and  my  idea,  my  belief  is  in  the  doctrine  of 
law  that  by  relation  the  judgment  rendered  in  January  goes  back  to 
the  first  stage  in  the  proceeding  and  avoids  the  whole.  I  beg  Judge 
HOAR  to  understand  me.  This  writ  of  quo  warranto  was  served  upon 
Pearce  and  others,  the  Hayes  electors,  five  minutes  after  twelve 
o'clock  on  the  6th  of  December,  before  they  had  performed  the  func 
tion  of  voting  for  President  and  Vice-President,  and  therefore  by  re 
lation  now  the  judgment  sweeps  away  the  whole  of  the  action  of 
these  electors  under  their  pretended  right  and  title.  But  the  judg 
ment  of  the  supreme  court  in  the  case  of  Drew  vs.  Stearns  settles  the 
question  of  the  power  of  this  board,  that  their  duty  was  merely  min 
isterial,  that  they  had  no  right  to  throw  out  votes,  that  they  had  a 
right  merely  to  enumerate  the  votes  as  they  were  sent  up  from  the 
counties,  but  that  they  had  no  right  to  reject  on  the  idea  that  there, 
was  fraud  or  intimidation,  or  on  such  loose  evidence  as  my  friend  read 
this  morning,  that  they  had  heard  somewhere  the  air  was  full  of  ru 
mors  of  bull-dozing  "  and  intimidation  and  therefore  we  throw  out 
any  amount  of  votes." 

Then  I  say  that  the  proceeding  in  the  quo  icarranto  of  Call  vs.  Stearns 
settles  the  question  of  the  title  of  Pearce  and  others,  the  Hayes  elect 
ors,  utterly  avoids  it,  declares  that  they  are  usurpers  and  that  all 
their  acts  are  void.  That  decision  is  unreversed,  is  the  decision  of  a 
court  of  competent  jurisdiction,  and  is  conclusive  as  we  maintain, 
and  has  stamped  as  the  stamp  of  the  State  "usurpation"  upon  the 
power  of  these  men  who  claim  to  have  voted  for  President. 

But  we  are  told  that  the  executive  of  the  State  has  certified,  M.  L. 
Stearns  has  certified,  and  that  is  conclusive.  Who  made  him  a  ruler 
or  a  judge  over  us?  The  act  of  Congress,  it  is  said,  says  that  the 
executive  shall  send  on  three  certificates.  Can  the  act  of  Congress 
make  his  certificate  conclusive  against  the  voice  of  the  State  ?  Then 
if  it  can,  I  beg  gentlemen  to  follow  to  its  legitimate  conclusion  their 
proposition.  If  the  act  of  Congress  has  the  effect  (I  think  not  by 
a  fair  interpretation  of  the  statute)  of  giving  conclusiveuess  to  the 
return  by  the  executive  of  the  election  in  the  State,  then  Congress 
has  usurped  the  function  of  determining  the  manner  of  the  election 
and  determining  the  elective  function  of  the  State.  "  Each  State 
shall  appoint,  in  such  manner  as  the  Legislature  thereof  may  direct ;" 
and  the  manner  of  election  must  include  the  manner  of  determining 
the  election.  There  can  be  no  such  power  in  the  executive  of  a  State. 

Now  I  apptehend  that  the  thing  just  comes  down  to  this :  that 
whether  this  be  a  Federal  or  State  office  (and  I  believe  it  to  be  a  State 
office)  the  elector  must  be  appointed  by  the  State  in  such  manner  as 
the  Legislature  directs,  and  that  we  must  refuse — I  speak  now  of 
the  two  Houses  and  of  this  Commission  as  a  substitute  for  them— we 
must  refuse  effect  to  any  certificate  which  belies  the  fact ;  and  to 
assert  that  we  have  no  right  to  say  a  thing  is  a  lie  when  we  see  it 
is  a  lie  is  to  say  you  might  as  well  disband  and  go  to  your  respective 
functions  prior  to  the  organization  of  the  Commission. 

As  I  have  but  a  few  moments  left,  I  will  as  preachers  say  some 
times,  give  practical  application  to  this  discourse.  The  question  is, 
are  the  Hayes  electors  appointed,  not  are  they  returned  by  the  trio 
or  by  Mr.  Stearns,  but  are  they  appointed  by  the  people  of  Florida ; 
not  who  gave  them  commission  but  who  gave  them  title  to  speak  for 
Florida  ?  The  title  comes  from  the  body  of  the  people.  The  commis 
sion  may  come  from  the  trio  of  oligarchs.  Do  I  hear  "  yes."  Who  says 
so.  The  board  and  governor.  Have  they  the  legal  right  to  say  it  / 
The  judgment  of  the  court  answers  no.  Did  they  fraudulently  make 
the  return?  The  court  answers  they  did.  Now  shall  this  tribunal, 
in  the  teeth  of  this  ultimate  State  determinant  power,  give  title  to 
any  such  commission  or  give  title  under  the  voice  of  the  people  ? 
Shall  you  hold  the  commission  which  the  State  court  of  Florida  has 
declared  to  be  invalid  to  be  valid  in  order  to  stifle  the  elective  power 
of  the  people  and  give  power  to  the  determinant  functions  of  the 
oligarchy  ?  That  is  the  question. 

May  it  please  the  Commission,  there  is  only  one  other  question  that 


10 


ELECTORAL  COMMISSION. 


I  desire  to  speak  to,  and  that  is  one  which  it  is  proper  I  should  men 
tion  before  I  sit  down.  I  will  not  go  into  the  facts  of  this  case  any 
further.  Baker  County  was  never  thrown  out  forany  informality  until 
the  exigency  of  the  second  count  required.  Upon  the  first  count  there 
was  no  informality  or  irregularity  in  Baker  County,  and  its  return 
was  counted ;  bnt  when  the  court  ordered  them  to  count  those  counties 
that  they  had  thrown  out  they  found  that  the  only  way  to  procure 
the  election  to  the  Hayes  electors  was  then  to  throw  out  Baker  County 
instead  of  those  that  they  had  already  thrown  out  and  were  now  or 
dered  to  count. 

Now  I  come  to  this  point  only  about  Mr.  Humphreys,  who  was  an 
officer  of  the  Government.  On  page  70  of  the  document  as  to  the  re 
cent  election  in  Florida,  the  testimony  taken  before  the  select  com 
mittee  of  the  House  of  Representatives,  the  Commission  will  find  the 
evidence  is : 

United  States  circuit  court,  northern  district  of  Florida. 

And  that  evidence  is  here  printed  from  the  original  certificate  of 
the  clerk  of  the  court. 

Ordered,  By  tho  court,  that  Frederick  C.  Humphries,  of  Ponsacola,  be,  and  he  is 
hereby,  appointed  shipping  commissioner  for  tho  port  of  Ponsacola. 

That  is  the  objection  made  by  two  gentlemen. 

Mr.  Commissioner  EDMUNDS.  Is  that  the  objection  of  Mr.  Jones 
and  Mr.  McDonald  ? 

Mr.  Eepresentative  TUCKEK.  Yes,  sir,  that  Frederick  C.  Hum 
phries  was  appointed,  and  then  there  is  a  certificate  that  he  took  the 
oath  to  discharge  the  duties  of  shipping  commissioner  to  the  best  of 
his  ability,  sworn  to  and  subscribed,  &c.,  and  then  here  is  the  certifi 
cate  of  the  clerk. 

I,  M.  P.  Do  Kioboo,  clerk,  &c.,  do  hereby  certify  the  foregoing  to  be  a  true  copy 
as  tho  same  remains  on  file  in  my  office,  f  further  certify  that  no  resignation  of 
s;  ml  office  of  shipping  commissioner  has  been  tiled  iu  my  office  by  the  said 
Frederick  C.  Humphries. 

So  that  here  is  a  man  who  was  appointed  in  1872  shipping  com 
missioner;  continued  to  hold  the  office  on  the  day  of  election  ;  con 
tinued  to  hold  the  office  on  the  day  he  voted,  contrary  to  the  Consti 
tution  of  the  United  States,  and  continues  to  hold  it  now  as  far  as  I 
kuow ;  and  upon  that  point,  I  refer  to  page  425  of  the  testimony  tak 
en  by  the  House  committee: 

He  has  been  United  States  shipping  commissioner. 

So  that  a  man  who  was  elector  was  United  States  shipping  com 
missioner.  Let  me  refer  you  to  one  single  fact.  The  question  is 
whether  he  was  an  officer  of  the  United  States.  In  the  Revised 
Statutes,  page  876,  you  will  find  the  section  providing  for  tho  ap 
pointment  of  such  shipping  commissioner  by  the  court. 

Thanking  the  Commission  for  their  kind  attention  and  having  ex 
hausted  my  time,  I  have  only  to  say  that  we  are  prepared,  as  soon  as 
the  court  shall  advise  us  of  the  mode  in  which  we  shall  unkennel  this 
fraud,  to  go  into  the  evidence  in  any  shape  or  form  that  either  the 
tribunal  will  indicate  or  that  the  gentlemen  on  the  other  side  may 
desire.  We  have  the  evidence  that  has  been  taken  by  the  commit 
tees  of  both  Houses.  We  apprehend  that,  as  both  Houses  would  have 
been  entitled  to  use  this  upon  tho  determination  of  the  question,  this 
Commission  has  the  same  power.  There  may  be  evidence  in  reference 
to  these  other  counties,  but  not  knowing  what  would  be-the  rules 
established  by  this  tribunal — of  course  it  was  impossible  to  know — we 
have  not  submitted  it.  I  only  mean  to  say  that  of  course  all  the  evi 
dence  taken  before  either  House  and  now  in  the  hands  of  either 
House,  which  they  could  have  used  in  the  determination  of  this 
question,  is  before  this  tribunal,  and  we  apprehend  that  this  tribunal 
is  competent  to  go  into  any  further  evidence  that  may  be  necessary 
to  elucidate  the  subject  for  decision,  and  to  unearth  the  fraud  and 
illegality  which  affects  the  title  of  either  of  these  parties  to  the  elec 
tion.  It  relates  to  Duval  County  and  Clay  County,  as  well  as  Baker. 

Mr.  Commissioner  ABBOTT.  I  want  to  ask  you  if  your  last  refer- 
once — I  have  not  the  book  before  me — tended  to  show  that  this  per 
son  who  was  an  elector  was  the  person  appointed  shipping  commis 
sioner  If 

Mr.  Eepresentative  TUCKER.  No,  sir ;  it  only  showed  what  was 
the  nature  of  his  office  under  the  Revised  Statutes. 

Mr.  Commissioner  ABBOTT.  I  alluded  to  the  reference  in  the  evi 
dence. 

Mr.  Representative  TUCKER.  Tho  last  reference  to  the  evidence 
was  to  .show  that  he  was  the  very  man  and  performed  the  duties. 

Mr.  Representative  FIELD.    He  has  been  acting  as  such. 

The  PRESIDENT.  One  of  tho  objectors  on  tho  other  side  will  now 
be  heard. 

Mr.  Representative  KASSON.  On  consultation,  Mr.  President,  as 
I  intimated  before  the  opening  of  the  argument  on  the  other  side,  my 
associate  [Mr.  McCrary]  and  myself  have  thought  it  due  to  the  in 
terests  represented  that  we  should  ask  further  time  to  examine  the 
certificates  which  are  all  involved  in  these  objections,  asking  it  speci 
ally  upon  this  ground,  that  instead  of  the  certificates  and  papers  to 
which  the  objections  apply  appearing  in  print  in  the  RECORD  this 
morning  as  we  expected  them  to  do,  so  that  they  might  be  directly 
considered  by  us,  they  have  not  yet  been  in  print ;  the  certificates  arc 
not  before  us;  we  have  had  no  access  to  them  until  counsel  in  this 
printed  document  just  this  moment  laid  them  upon  the  table  before 
them. 


In  addition  to  that  I  have  only  to  say  that  the  magnitude  of  the 
questions  presented  by  the  argument  hero  also  is  a  reason  why  we 
should  attempt  to  aid  the  Commission  more  than  we  can  do  by  hastily 
proceeding  now  to  the  consideration  of  these  great  constitutional 
questions.  My  colleague  and  myself  only  saw  the  objections  yester 
day  and  were  only  notified  after  the  meeting  of  this  Commission  that 
we  were  to  present  them  on  our  part. 

The  PRESIDENT.  How  much  delay  do  you  ask?  I  have  no  au 
thority  to  grant  it;  I  must  have  something  definite  to  submit  to  tho 
Commission. 

Mr.  Representative  KASSON.  I  think  it  will  be  sufficient,  inas 
much  as  we  can  have  access  to  the  original  papers  now,  they  being 
in  possession  of  the  Commission,  to  ask  to  be  allowed  to  go  on  to 
morrow  morning. 

The  PRESIDENT,  (to  the  members  of  the  Commission.)  Tho  ob 
jectors  to  the  second  certificate  and  who  support  the  first  one  ask  for 
a  postponement  of  their  reply  to  the  two  objectors  who  have  already 
spoken  this  morning,  until  to-morrow  morning.  The  question  before 
the  Commission  is  whether  the  delay  shall  be  granted.  Are  you  ready 
for  the  question  ? 

Mr.  Commissioner  STRONG.  I  should  like  to  inquire  whether  it 
would  not  be  possible  for  one  of  the  objectors  to  go  on  this  afternoon, 
and  then  the  Commission  might  possibly  assent  to  a  postponement  of 
the  hearing  of  the  other  one  tintil  morning. 

Mr.  Representative  KASSON.  That  would  be  practicable  except 
for  the  fact  that  we  are  both  in  the  same  situation,  and  we  have  not 
been  able  to  distribute  the  two  branches  of  the  subject  between  us. 

Mr.  Commissioner  EDMUNDS.    Can  you  not  go  on  at  three  o'clock  ? 

Mr.  Representative  KASSON.  That  would  exhaust  the  time  of  tho 
objectors  with  ten  minutes  additional. 

Mr.  Commissioner  MILLER.  Mr.  Kasson,  much  as  I  would  like  to 
oblige  you,  for  myself  I  must  say  that  looking  to  the  emergency  and 
the  necessity  of  getting  along  and  tho  number  of  persons  to  bo  heard 
in  all  these  cases,  if  we  set  this  example  the  Commission  probably 
would  never  get  through.  I  must  for  myself  vote  against  any  delay 
unless  it  be  till  three  o'clock,  so  as  to  allow  an  opportunity  to  take 
lunch  in  the  mean  time. 

Mr.  Representative  KASSON.  If  that  be  the  disposition  of  the  Com 
mission  I  certainly  interpose  no  objection,  and  we  shall  avail  our 
selves  of  the  time. 

The  PRESIDENT.    You  only  ask  now  for  delay  until  three  o'clock  ? 

Mr.  Commissioner  MILLER.  Mr.  President,  I  move  that  these  ob 
jectors  have  till  three  o'clock  to  present  their  statement. 

The  PRESIDENT.  The  question  before  the  Commission  is  whether 
a  delay  until  three  o'clock  shall  be  granted  to  the  objectors  on  the 
other  side. 

The  motion  was  agreed  to. 

Mr.  Commissioner  MILLER.  Now  I  move  that  the  Commission 
take  a  recess  until  three  o'clock. 

Mr.  Representative  KASSON.  Before  that  vote  is  put  may  I  in 
quire  whether  the  Commission  has  in  its  possession  the  certificates 
and  the  objections  ? 

The  PRESIDENT.  It  has.  It  is  moved  that  tho  Commission  take 
a  recess  until  three  o'clock. 

The  motion  was  agreed  to ;  and  (at  twelve  o'clock  and  fifty-two 
minutes  p.  m.)  the  Commission  took  a  recess  until  three  o'clock. 


The  Commission  re-assembled  at  three  o'clock  p.  in. 

The  PRESIDENT.  One  of  the  objectors  to  the  second  certificate 
will  now  be  heard  on  the  same  rules  and  conditions  prescribed  iu 
respect  to  the  objectors  to  the  first. 

Mr.  SHELLABARGER.  Mr.  President  and  gentlemen,  I  am  re 
quested  to  lay  before  tho  Commission  the  Senate  report  upon  Florida 
containing  tho  laws  of  Florida  and  other  matters  pertinent  to  this 
discussion. 

Mr.  Commissioner  EDMUNDS.  Wo  take  it  as  part  of  tho  state 
ment,  not  as  evidence. 

The  PRESIDENT.  We  will  take  it  as  part  of  the  statement  on 
that  side. 

Mr.  Representative  KASSON.  Mr.  President  and  gentlemen  of  tho 
Commission,  in  what  I  have  to  say  I  shall  be  mindful  of  one  of  the 
traditions  of  that  very  honorable  court  which  usually  occupies  the 
bench  now  filled  by  this  Commission.  It  is  said  of  Chief-Justice 
Marshall  that,  after  listening  for  a  day  and  far  into  the  second  day 
to  a  young  counselor  who  had  by  that  time  only  passed  Littleton, 
and  Coke,  and  Blackstone,  and  got  down  to  Kent's  Commentaries, 
the  Chief-Justice  ventured  to  remind  him  that  it  must  be  presumed 
that  the  Supreme  Court  of  the  United  States  itself  was  partially  cog 
nizant  of  the  law,  and  ho  might  be  able  to  abbreviate  his  argument. 
In  that  spirit  I  shall  to-day  endeavor,  as  early  as  possible,  to  free  our 
part  of  the  case  from  the  charges,  allegations,  and  arguments  which 
have  been  presented  and  which  do  not  seem  to  us  pertinent  to  tho' 
question  to  bo  considered  by  the  Commission. 

What  is  tho  case  before  the  Commission  ?  First,  a  certificate,  as  re 
quired  by  the  Constitution  and  laws  of  the  United  States  and  in  con 
formity  with  tho  statutes  of  the  State  of  Florida,  certifying  tho  elect 
oral  votes  of  one  of  these  States  which  my  honorable  friend  who  last 
spoke  before  tho  recess  [Mr.  Tucker]  was  pleased  to  call  "sovereign 
States"  of  this  Union.  That  certificate  is  tho  one  which  was  first 


ELECTORAL  COMMISSION. 


11 


opened  and  read  in  the  joint  session.  There  is  a  second  so-called  cer 
tificate  opened  in  the  joint  meeting  of  the  two  Houses  of  Congress 
in  which  the  persons  signing  the  same  preface  their  own  certificate 
by  one  signed  by  an  officer  not  recognized  by  the  laws  of  the  United 
States  nor  by  the  statutes  of  Florida  as  a  certifying  officer,  being  the 
attorney-general  of  the  State  of  Florida.  Ho  certifies  that  there  is 
no  provision  of  the  law  of  Florida  "whereby  the  result  of  said  return 
can  be  certified  to  the  executive  of  said  State,"  admitting  by  that 
certificate,  if  it  has  any  force  at  all,  that  his  action  is  without  the 
law  and  without  any  sanction  of  the  statutes  of  the  State.  Next, 
the  self-styled  electors  certify  to  their  own  election  and  their  own 
qualifications,  and  that  they  themselves  notified  the  governor  of  their 
own  election.  That  is  the  certificate  No.  2,  a  certificate  of  unauthor 
ized  persons  and  uncertified  persons  in  the  view  of  the  laws,  State 
and  national,  and  that  was  presented  and  opened  in  pursuance  of  the 
recent  act  of  Congress  for  what  it  is  worth. 

There  is  a  third  certificate  still  more  extraordinary,  still  more  want 
ing  in  all  the  legal  elements  of  electoral  verification,  and  which  asks 
for  itself  consideration.  It  is  a  certificate  which  is  thoroughly  ex 
post  facto,  certified  by  an  officer  not  in  existence  until  the  functions 
of  the  office  had  been  exhausted ;  a  certificate  which  recites  or  refers 
to  posterior  proceedings  in  a  subordinate  court  and  in  a  superior  State 
court,  the  latter  expressly  excluding  the  electoral  question  ;  a  cer 
tificate  which  is  accompanied  by  that  sort  of  a  return  which  a  can 
vassing  board  might  under  some  circumstances  report  to  the  State 
officers,  but  which  has  never  been  sent  to  the  Congress  of  the  United 
States  or  to  the  President  of  the  Senate  for  their  consideration  in  the 
one  hundred  years  in  which  we  have  been  a  Republic.  Every  date 
of  the  judicial  orders  and  of  the  laws  authorizing  the  executive  acts 
certified,  the  official  existence  of  the  very  officers  who  certify  them, 
the  proceedings  in  the  court  as  recited  in  them,  are  all  subsequent  to 
that  time  which  by  the  Constitution  and  laws  of  the  TJnited  States 
is  the  date  fixed  for  the  final  performance  of  electoral  functions. 

These  two  certificates,  therefore,  are  wanting  in  all  the  elements  of 
constitutional  and  legal  validity  which  shoiild  exist  to  give  them  au 
dience  before  this  Commission.  They  conform  in  no  respect  to  the 
laws  of  the  country  as  they  now  are,  or  to  the  laws  of  the  State  as 
they  were  on  the  G'th  day  of  December,  when  the  functions  of  the 
electors  were  ended.  More  than  that,  if  the  first  certificate,  desig 
nated  as  certificate  No.  1,  is  a  constitutional  and  legally  certified 
expression  of  the  vote  of  the  State  of  Florida,  that  question  being 
settled  in  favor  of  this  certificate  obviates  the  necessity  for  consid 
ering  the  certificates  numbered  2  and  3.  I  ought,  perhaps,  to  say  to 
the  honorable  Commission  that  it  is  fortunate  they  did  not  grant  the 
request  of  our  objectors  for  an  adjournment  till  to-inorrow.  The  next 
mail  might  have  brought  to  you  certificate  No.  4  or  5,  reciting  to  you 
new  proceedings,  a  new  action  before  the  courts,  and  no  end  would 
come  to  the  papers  that  might  be  presented  in  party  or  personal  in 
terest  as  establishing  a  retroactive  right  to  exercise  an  electoral  func 
tion  in  the  State  of  Florida. 

I  shall,  therefore,  cheerfully  confine  the  argument  to  certificate  No. 
1,  because  if  the  objections  to  that  certificate  are  invalid,  and  the  cer 
tificate  itself  is  valid,  of  course  that  dismisses  all  need  of  considera 
tion  of  the  other  certificates  and  we  shall  have  ascertained  what  is 
the  constitutional  and  legal  electoral  vote  of  the  State  of  Florida. 

The  objections  to  this  certificate  are  substantially  one,  namely, 
that  there  was  fraud,  or  conspiracy,  or  both  somewhere  behind  it,  and 
behind  the  college,  not  by  reason  of  anything  which  appears  in  con 
nection  with  the  electoral  college,  or  its  proceedings,  or  on  the  face 
of  the  certificate,  but  because  of  action  on  the  part  of  local  or  State 
canvassing  officers,  or  of  the  people,  and  away  behind  all  action  of 
the  presidential  electors  themselves.  Hence  it  is  that  we  have  heard 
this  morning  chiefiy,  instead  of  a  constitutional  and  legal  presenta 
tion  of  the  question  within  your  jurisdiction,  a  speech  before  this 
Commission  as  if  it  were  a  jury  in  a  court  having  original  jurisdic 
tion  to  determine  law,  to  determine  fact,  to  establish  titles  to  office, 
to  oust  and  to  install  officers,  to  decide  rights  between  parties,  to  decide 
State  rights,  to  decide  national  rights,  an  assertion  that  State  or 
county  officials,  wholly  outside  of  national  control,  have  somehow 
acted  fraudulently  under  State  law,  and  that  this  electoral  return 
has  been  vitiated  thereby. 

Now  it  is  not  within  the  scope  of  my  purpose  to  answer  otherwise 
than  generally  that  argument  which  took  up  most  of  the  time  of  the 
objectors  who  opened  this  discussion.  I  must  affirm,  however,  to 
this  Commission  that  the  first  objector  was  in  error  in  saying  that  we 
on  this  side  had  nothing  to  say  contradicting  his  assertions  of  the 
frauds.  Wo  say  everything  in  denial  of  fraud  in  the  State  officers. 
We  affirm  fraud  in  directly  the  reverse  sense,  and  frauds  which  you 
would  ascertain  in  the  very  steps  to  which  he  calls  our  attention, 
in  the  action  of  certain  county  canvassers  certifying  results  for 
Tiklen  electors.  For  example,  when  he  refers  to  Baker  County  I  en 
tirely  dissent  from  his  view  of  the  facts  as  existing  of  record  in  tbat 
case ;  but  if  you  go  into  that  question  in  Baker  County  to  verify  his 
assertions  we  should  inevitably  ask  that  you  go  into  Jackson  County, 
where,  under  other  political  domination,  they  rejected  271  votes  act 
ually  cast  for  the  Hayes  electors.  We  should  ask  you  to  go  into 
Alachua  County  and  find  at  one  precinct  a  railroad  train  of  non-resi 
dent  passengers  getting  off  on  their  passage  through  and  voting  the 
ticket  which  was  supported  by  the  objector  [Mr.  Field]  who  made 
the  allegation  against  Baker  County.  We  should  invoke  your  atten 


tion  to  Waldo  precinct  of  the  same  county  to  find  that  they  had 
vitiated  that  poll  also  by  what  is  called  stuffing  the  ballot-box.  And 
so  on  with  other  counties  passed  upon  by  the  State  board. 

Wo  answer,  then,  the  allegation  that  their  charges  of  fraud  have 
not  been  denied  by  us,  by  stating  that  if  they  are  ever  reached  in  the 
exercise  of  your  jurisdiction,  we  propose  to  show,  and  shall  show  in 
that  contingency,  that  there  was  such  a  case  of  fraud  in  the  incipi- 
ency  of  that  vote  which  they  claim  should  elect  their  candidate  as 
would  astonish  not  only  this  Commission,  but  the  whole  country  by 
its  presentation.  I  unite  with  my  friends  in  condemning  fraud  wher 
ever  it  exists.  It  should  not  only  vitiate  the  result  which  it  produced 
when  it  is  ascertained  by  the  proper  tribunals,  but  it  should  also  con 
demn  every  man,  public  or  private,  who  participated  in  it.  Wo  are 
not  here  to  defend  fraud.  Wo  are  here,  however,  to  say  not  only  that 
the  allegation  of  it  as  made  on  the  otherside  is  not  correct,  but  that  the 
very  next  step  behind  the  county  canvassers  confronts  you  with  some 
of  the  grossest  cases  of  the  violation  of  the  popular  right  to  freely 
cast  the  vote,  and  to  have  that  vote  counted,  which  has  ever  been 
found  in  the  history  of  this  country. 

If  we  go  for  fraud,  let  us  go  to  the  bottom  of  it;  let  us  go  where 
that  fraud  is  found  in  such  a  degree  and  with  such  force,  in  more  than 
one  State  North  and  South,  as  to  penetrate  the  very  foundation  of 
the  popular  sovereignty  of  this  country,  and  to  lead  every  patriot  to 
consider  whether  the  highest  duty  of  legislators  is  not  first  to  put 
their  guards  where  alone  fraud  is  essentially  to  be  feared,  namely,  at 
the  ballot-box,  because  it  is  further  removed  from  the  sight  of  the 
general  public  and  from  the  control  of  supervising  atithority. 

I  leave  that  question  now.  I  do  not  believe  that  this  Commission 
by  the  Constitution  or  laws  was  ever  intended,  or  has  the  power,  to 
go  to  the  extent  that  would  be  required  if  they  attempted  to  probe 
these  mutual  allegations  of  fraudulent  voting  and  fraudulent  can 
vassing  to  the  bottom  by  judicial  investigation  and  judicial  decision. 

It  seems  to  me  that  our  honorable  friends  on  the  other  side  have 
been  misled  by  the  judicial  atmosphere  of  this  hall,  consecrated 
usually  to  the  jurisdiction  of  a  constitutional  court  of  justice.  Under 
the  influence  of  these  columns  as  pillars  of  a  supreme  court,  and  with 
the  judicial  associations  of  this  chamber,  they  have  addressed  you, 
honorable  gentlemen  of  the  Commission,  as  if  you  were  a  constitu 
tional  court,  vested  with  the  power  to  try  causes  without  a  j  ury, 
vested  both  with  the  powers  of  a  subordinate  and  an  appellate  court 
in  a  proceeding  by  quo  warranto,  and  vested  with  unlimited  discretion 
in  the  determination  of  rights  to  hold  the  electoral  office.  They  have 
presented  to  you  the  following  questions  upon  which  it  is  absolutely 
necessary  to  come  to  a  decision,  upon  their  theory  of  your  jurisdic 
tion. 

First.  Is  this  Commission  a  general  canvassing  board  with  power  to 
recanvass  the  popular  vote  of  the  State  of  Florida  ? 

Second.  Is  this  Commission  a  national  court  of  appeal  from  the  State 
canvassing  boards  ? 

Third.  Is  this  Commission  a  judicial  court  of  appeal  from  the  State 
circuit  court  of  Florida  in  proceedings  by  writ  of  quo  warranto  ? 

The  gentlemen  on  the  other  side  affirmed  that  your  jurisdiction 
was  co-extensive  with  that  of  a  court  in  a  proceeding  by  quo  ivar- 
ranto  ;  and  I  add  in  response  to  the  alleged  decision  of  this  subordi 
nate  court,  Judge  White's  court  in  Florida,  that  it  is  not  a  final  de 
termination  of  that  proceeding  by  quo  warranto.  We  are  informed, 
and  so  claim  the  fact  to  be,  that  it  is  now  pending  on  appeal  in  the 
supreme  court  of  the  State  of  Florida.  Hence  I  ask  the  question 
whether  this  Commission  can  take  jurisdiction  from  the  supreme 
court  of  Florida,  after  regular  appeal  from  the  circuit  court,  of  the 
proceedings  in  quo  warranto. 

The  affirmative  of  all  these  propositions  is  taken  by  our  opponents. 
They  do  affirm  that  you  are  a  canvassing  board  with  power  to  recan 
vass  the  vote  of  Florida  cast  by  the  people  ;  they  do  affirm  that  you 
are  not  merely  a  canvassing  board,  but  a  national  court  of  appeal 
from  the  action  of  the  canvassing  board  of  Florida ;  they  do  affirm 
that  you  are  a  court  so  judicial  that  from  the  action  of  the  State  cir 
cuit  court  of  Florida  you  can  take  jurisdiction  by  reviewing  that 
action ;  and  they  do  affirm  that  there  is  no  limit  to  your  power  to 
investigate  into  the  honesty  and  integrity  of  the  action  of  the  return 
ing  board  of  Florida,  and  to  determine  originally,  with  the  powers 
of  a  court,  to  whom  the  certificate  of  election  should  have  been 
awarded. 

This  represents  the  legal  position  of  our  opponents.  I  ask,  there 
fore,  what  are  the  powers  of  this  Commission  ?  I  need  not  remind 
the  honorable  gentlemen  composing  it  that  the  assumption  of  these 
powers  implies  that  we  are  to  have  no  election  of  a  President  and 
Vice-President  of  the  United  States  by  the  time  limited  for  the  com 
mencement  of  the  functions  of  their  offices.  You  cannot  say  to 
those  gentlemen :  "  We  will  go  behind  the  regular  certificates  pro 
vided  by  the  Constitution  and  the  law  just  so  far  as  will  accom 
modate  you  to  find  whether  it  is  true  or  not  that  what  you  allege 
to  be  fraud  was  done  against  your  interest  in  one  or  two  counties. 
We  must  if  we  go  behind  the  electoral  college  go  whore  all  the  al 
legations  of  fraud  on  both  sides  assert  its  existence.  It  is  the  pop 
ular  vote  that  those  gentlemen  say  yon  are  to  review,  to  recauvass, 
and  to  ascertain.  Where  does  this  Commission  get  its  power  for 
that  ?  By  the  act  organizing  the  Commission  you  are  vested  with  t  ho 
ri'-'ht  to  consider  instso  much  of  this  aliened  case  as  Congress  might 


consider 


t  to  consider  just  so  much  of  this  alleged  case  as  Congress  mi} 
ider;  and  when  Isay  "Congress"  I  include,  of  course,  the  t 


two 


ELECTORAL   COMMISSION. 


Honses.  Let  me  ask  then  -what  is  that  limit  ?  We  must  clear  our 
minds  from  what  has  grown  within  the  later  years  to  be  most  dan 
gerous  to  the  reserved  rights  of  the  States  and  to  the  rights  of  the 
people,  namely,  the  assertion  of  unlimited  universal  power  of  each 
House,  or  of  both  Houses,  to  assume  jurisdiction  over  all  things  or 
questions  having  a  national  aspect  or  relation.  No  such  undefined 
grasp  was  intended  by  the  Constitution.  Suppose  this  act — and  I 
beg  the  attention  of  gentlemen  to  it — suppose  this  act  had  provided 
that,  instead  of  surrounding  the  President  of  this  Commission  with 
these  geutlomen  and  conferring  these  indefinite  powers,  Congress  had 
chosen  to  surround  the  President  of  the  Senate  with  only  the  repre 
sentatives  of  the  Senate  and  of  the  House  would  you  have  thought 
of  attributing  judicial  power  to  them?  The  same  power  that  justi 
fies  Congress  under  the  Constitution  of  the  United  States  in  pro 
viding  that  the  counting  should  be  done  by  this  Commission  would 
have  justified  them  in  providing  that  the  counting  should  be  done 
by  the  President  of  the  Senate  alone.  Admitting  that  Congress  has 
power  to  that  extent  to  regulate  the  counting  you  must  guide  your- 
elves  by  the  same  principles  in  determining  your  jurisdiction  that 
you  yourselves  would  decide  limited  the  jurisdiction  of  the  Presi 
dent  of  the  Senate  as  sole  counting  agent  were  he  designated  by 
this  act  to  count  the  votes  alone. 

Now  suppose  that  act  in  existence,  and  you  have  it  by  law  that 
the  Vice-President  shall  not  only  open,  but  shall  himself  count  the . 
votes.  If  the  Constitution  had  said  "and  the  votes  shall  then  be 
counted  by  Mm,"  the  same  result  would  have  been  attained.  If  in 
stead  of  "by  him,"  you  add  the  two  words  "by  Congress,"  you  do 
not  vary  the  power  at  all.  Whatever  counting  is  to  be  done  is  to  be 
done  either  by  the  President  of  the  Senate  or  by  the  two  Houses  of 
Congress.  In  either  case  it  is  only  to  "  count."  That  is  the  sub 
stance.  The  rest  is  agency.  Would  you  maintain  for  one  moment, 
if  that  were  the  provision,  either  of  Constitution  or  law,  that  the 
President  of  the  Senate  should  count  the  votes ;  that  he  had  the 
right  to  send  out  commissioners  to  take  depositions ;  "to  take  into 
view  "  all  other  papers ;  to  reach  evidence  at  will ;  to  recanvass  the 
popular  vote  of  the  State  of  Florida ;  to  organize  the  whole  machinery 
alike  of  executive  canvassing  boards  of  a  State  and  of  all  the  ju 
dicial  courts  of  the  State  ?  Is  there  a  gentleman  on  this  commission 
from  either  House  of  Congress  or  from  the  Supreme  Bench  who  would 
tolerate  for  a  moment  the  exercise  of  such  power  under  the  simple 
language  "  shall  count  the  votes  ?"  If  not,  then  the  act  has  given  no 
additional  power  to  fifteen  men  beyond  that  power  which  by  the  like 
terms  would  have  been  conferred  upon  one  man ;  and  hence  I  affirm 
that  there  is  in  this  law  no  power  whatever  to  do  more  than  is  nec 
essarily  implied  in  the  words  "  and  the  votes  shall  then  be  counted." 

If  that  be  so,  then  we  come  to  the  next  question,  What  does  the  word 
"  count "  mean  ?  and  is  the  power  of  that  sort  that  implies  something 
not  ministerial,  or  within  the  narrow  circuit  of  discretion  that  belongs 
to  the  ministerial  power  ?  Does  it  imply,  as  gentlemen  on  the  other 
side  claim,  the  unlimited  circuit  of  the  judicial  power?  If  it  does, 
your  Constitution  in  its  very  frame-work  and  organization  is  violated. 

The  first  three  articles  of  the  Constitution  divide  the  functions  of 
this  Government  into  legislative,  executive,  and  judicial.  The  third 
article  affirms  positively  that  the  judicial  power  is  vested  in  one  Su 
preme  Court  and  in  inferior  courts  to  be  established. 

So  the  first  article  says  that  all  legislative  power  granted  is  vested 
in  the  Congress  of  the  United  States.  So  the  second  article  says  that 
the  executive  power  is  vested  in  the  President.  Your  limits  are 
drawn  by  the  Constitution  of  your  country,  which  tells  you  that  the 
several  powers  of  this  Government,  the  three  great  powers,  shall  not 
by  any  contrivance  be  merged  or  mingled  in  any  tribunal ;  whether 
constituted  of  the  three  divisions,  or  of  any  or  either  of  the  three. 
The  safety  of  our  people  hangs  on  it ;  the  safety  of  our  States  hangs 
upon  it ;  all  the  elements  of  national  safety  hang  upon  the  observ 
ance  of  that  division  of  the  functions  of  government.  It  is  the 
greatest  act  in  the  progress  of  modern  civilization  as  contrasted  with 
the  ancient  and  the  Eastern,  which  combined  all  functions  in  one 
supreme  head.  It  withholds  each  department  of  power  from  assum 
ing  either  of  the  other  essential  powers  of  the  Government,  that  the 
people  may  be  saved  from  the  tyranny  of  irresponsible  authority. 

The  claim  made  on  the  other  side  confuses  and  merges  them  in  so 
far  as  you  are  asked  to  exercise  judicial  functions  in  the  determina 
tion  of  rights.  The  very  language  used  this  morning  was  that  your 
powers  were  co-extensive  in  this  matter  with  those  of  a  court  trying 
a  proceeding  by  quo  warranto.  Are  you,  then,  a  court  under  the  third 
article  of  the  Constitution  ? 

I  therefore  think  it  may  be  assumed  that  the  indefinite  language 
of  this  act  of  Congress  confers  no  such  powers  as  claimed  upon  this 
delegated  Commission,  organized  to  tide  over  adifficulty,  and  to  do  the 
ministerial  act  of  counting  the  votes  in  the  stead  of  the  President  of 
the  Senate. 

I  have  spoken  of  the  narrow  circuit  of  discretion  that  surrounded 
the  ministerial  act  of  counting.  I  beg  to  renew  the  distinction  that 
there  is  no  difference  made  by  adding,  as  this  act  implies,  the  words 
"  by  Congress  "  at  the  end  of  the  constitutional  clause,  so  that  it  would 
read  "  shall  then  be  counted  by  Congress."  It  is  the  same  as  if  the 
words  were  added  "  shall  then  be  counted  by  him,"  meaning  the 
President  of  the  Senate.  The  essential  factor  of  the  phrase  is  the 
"  count." 

Now  what  is  that  narrow  circuit  of  discretion  ?    It  is  broad  enough 


to  ascertain  whether  the  papers  before  you  as  certificates  are  genuine 
and  not  counterfeit,  and  are  duly  and  truly  verified  by  State  authority 
as  required  under  the  Constitution  and  laws.  It  is  broad  enough  to 
ascertain  whether  the  electoral  college  has  complied  with  the  law. 
This  is  a  ministerial  examination.  Do  the  papers  upon'their  face  con 
tain  evidence  of  fraud,  of  doubt,  of  irregularity,  of  error  ?  Is  certifi 
cate  number  two  on  its  face  more  regular,  more  free  from  apparent 
fraud,  more  worthy  of  being  received  in  evidence  than  certificate  num 
ber  one  ?  Is  certificate  number  three  a  truer  certificate,  more  in  com 
pliance  with  law,  and  bearing  upon  its  face  the  greater  evidences  of 
its  authenticity  ?  Which  is  the  authentic  certificate,  and  the  authen 
ticated  vote  ?  These  are  the  questions  to  be  ministerially  settled. 
Neither  Congress  nor  any  officers  created  by  it  have  the  right  to  re 
count  popular  votes ;  for  the  Constitution  says  expressly,  it  is  the 
electoral  votes  that  are  to  be  counted,  not  the  popular  vote.  Over  this 
Congress  has  no  power  under  the  presidential  clauses  of  the  Constitu 
tion. 

Every  phase  of  the  discussion  confronts  us  in  a  narrower  or  broader 
circle  of  reasoning  with  this  one  question :  Are  you  to  revise  and  ad 
judicate  all  the  proceedings  of  State  elections  for  electors  of  Presi-j 
dent  and  of  all  State  tribunals  relating  thereto  appointed  by  State 
laws  ?  We  always  come  around  to  that.  Or  are  you  to  count  what, 
is  properly  certified  and  presented  to  you  ?  If  you  affirm  the  firstf 
proposition  you  must  declare  the  Constitution  amended  by  this  tri-' 
bunal,  ipso facto  amended;  so  that  it  shall  read:  "Each  State  shall 
appoint,  in  such  manner  as  the  Legislature  thereof  may  direct,  a 
number  of  electors  equal,"  &.,  subject,  however,  to  revision  by  the  Con 
gress  of  the  United  Slates,  who  shall  have  power  to  overrule  the  State  au 
thorities  in  determining  the  college  of  electors.  Would  the  Constitution 
ever  have  been  adopted  with  that  construction  ? 

We  are  brought  inevitably  to  such  an  amendment  by  construction. 
Yet  the  Constitution  sought  to  preserve  absolutely  the  right  of  the 
State  to  appoint  its  electors  without  Federal  dictation.  It  required 
every  ballot  to  be  cast  on  the  same  day  throughout  the  Union,  that 
it  might  be  free  from  every  centralized  influence.  Every  member  of 
the  Commission  knows  what  the  history  of  the  adoption  of  this  clause 
is,  and  yet  we  are  brought  perpetually  by  the  claims  of  the  other  side 
to  this  one  question:  Shall  we  now  go  on  and  complete  the  absorp-f 
tion  of  this  most  absolute,  independent,  and  unquestioned  right  of 
the  States  to  appoint  their  electors  in  their  own  way  and  hold  that  it 
is  subject  to  revision  and  change  by  the  two  Houses  of  Congress  ?  • 

The  objectors  asked  are  we,  then,  to  take  the  certificate  of  the  proper 
State  officers  against  the  truth  ?  Is  there  any  reason  why,  on  the 
other  hand,  it  should  not  be  asked,  are  we  to  take  the  certificate  off 
these  fifteen  gentlemen  against  the  truth  ?  There  is  a  necessity  in 
public  affairs  and  in  the  very  organization  of  society  and  of  political 
communities,  an  absolute  necessity  to  have  some  final  jurisdiction.! 
There  must  be  somewhere  an  authority  by  which  we  stand  even  if  it 
be  impeached  by  charges  of  fraud.  Where  is  that  authority  ?  Is  it: 
here  ?  Is  it  in  the  governor  ?  Is  it  in  the  canvassing  board  ?  Is  it 
in  the  State  Legislature  ?  Is  it  in  the  State  judiciary  I  Where  is  it  ? 
I  submit  that  for  the  purposes  of  this  case,  and  under  the  Constitu 
tion  and  laws,  it  is  found  where  the  State  authority  concludes,  and 
that  if  the  Constitution  and  laws  of  the  United  States  in  manner,  in 
time,  in  substance,  so  far  as  shown  by  the  duly  certified  results,  are 
conformed  to,  there  is  the  determination  of  the  case. 

I  regret  to  pause,  may  it  please  the  Commissioners,  to  repel  the  sug 
gestions  made  against  this  returning  board.  It  was  said  that  the 
court  had  found  their  return  fraudulent.  There  is  no  evidence  in  the 
records  of  the  court  that  that  allegation  is  true.  I  have  read  the  de 
cision,  and  in  answering  their  argument  I  must  say  there  is  not  an 
allusion  to  the  fact  that  that  canvassing  board  acted  fraudulently. 
It  was  alleged  that  their  action,  which  had  conformed  to  the  action 
two  years  before,  was  a  misinterpretation  of  their  rights  under  the 
law ;  and  in  the  document  submitted  a  few  moments  ago  to  the  com 
missioners,  I  think,  on  the  second  page,  there  is  a  copy  of  the  essen 
tial  section  of  the  law.  The  important  language  of  the  act  to  which 
I  wish  to  call  the  attention  of  the  Commissioners  in  the  statutes  of 
Florida  regulating  the  powers  of  this  board,  is  this : 

If  any  sncli  returns  shall  be  shown  or  shall  appear  to  be  80  irregular,  false,  or 
fraudulent  that  the  board  shall  be  unable  to  determine  the  true  vote  for  any  such 
officer  or  member,  they  shall  so  certify,  and  shall  not  include  such  return  in  thoir 
determination  and  declaration. 

Mr.  Commissionsr  EDMUNDS.  Can  you  give  us  the  date  of  that 
statute  ? 

Mr.  Representative  KASSON.  That  is  the  old  statute  under  which  the 
election  was  held,  passed  February  27, 1872,  and  was  the  law  in  force 
at  the  time  of  the  canvass,  at  the  time  of  the  certificate  of  the  elect 
ors,  at  the  time  of  the  voting  of  the  electors,  and  until  the  17th  of 
January,  1877. 

Mr.  Commissioner  GAEFIELD.    Has  the  paper  been  filed  ? 

Mr.  Commissioner  EDMUNDS.    Not  as  evidence. 

Mr.  Representative  KASSON.  I  simply  use  it  for  reference  because 
in  it  is  found  this  statute  of  Florida.  I  refer  to  it  here  and  for  that 
purpose.  This  document  was  handed  to  the  Commissioners  for  the 
law  references  in  it. 

Thus  it  will  bo  seen  that  the  canvassing  board  of  Florida  were  to 
inquire  if  these  returns  appeared  to  be  so  irregular,  false,  or  fraud 
ulent  that  the  board  was  unable  to  ascertain  the  true  vote.  That 
was  their  function.  In  exercising  that  function  they  not  merely 


ELECTORAL  COMMISSION. 


13 


passed  upon  the  returns  of  the  county  canvassers  but  upon  the  certi- 
lied  results  in  precincts. 

The  court  said  they  had  overstepped  the  law.  And  here  I  must  re 
mind  the  gentlemen  composing  the  Commission  that,  when  they  made 
the  recauvass  which  I  have  styled  canvass  number  two  under  order 
of  the  supreme  court  of  Florida,  it  will  appear  they  then  reported  not 
only  the  result  in  respect  to  governor,  but  they  also  reported  the  re 
sult  in  respect  to  electors.  That  result  of  the  second  canvass  showed 
the  election  of  the  Hayes  electors,  but  by  a  reduced  majority.  These 
electors  appear  to  have  run  two  or  three  hundred  votes  ahead  of  the 
State  ticket,  and  the  recanvass  left  them  still  some  two  hundred  ma 
jority.  That  appeared  on  the  record.  It  does  not  appear  on  the 
printed  document  which  has  been  submitted  on  the  other  side  here, 
I  suppose,  because  the  court  ruled  that  they  intended  their  order  to 
only  apply  to  State  officers ;  and  therefore  they  struck  out,  after  it 
had  once  gone  in  the  record,  the  result  as  to  the  electors ;  but  it  was 
originally  a  part  of  the  proceedings  under  order  of  the  court,  which, 
if  gone  into,  will  show  the  fact  that  not  only  canvass  number  one 
showed  the  election  of  the  Hayes  electors,  but  canvass  number  two 
had,  under  the  order  and  in  accordance  with  the  ruling  of  the  supreme 
court,  showed  both  the  election  of  the  democratic  State  ticket  and  the 
election  of  the  Hayes  electors. 

Mr.  Commissioner  ABBOTT.  "Was  that  called  in  question  at  all  in 
that  case  of  Drew  against  the  other  party  ? 

Mr.  Eepresentative  KASSON.  It  was  said  not  to  be  raised  by  the 
pleadings  or  by  the  order,  but  was  in  the  return  of  the  canvass  as 
to  the  election  of  governor.  The  canvass  had  under  the  order  of  the 
court  in  that  case  showed  both  classes  of  elections,  that  of  the  elect 
oral  college  and  that  of  the  State  officers.  The  result  of  that  count, 
when  made  under  that  ruling,  was  what  I  have  stated,  and  then  ob 
jection  was  taken  to  its  record,  and  the  court  said  they  were  not  con 
sidering  the  electoral  count,  and  struck  it  out. 

Mr.  Commissioner  ABBOTT.  My  only  desire  was  to  learn  whether 
that  was  ruled  at  all  in  the  case. 

Mr.  Representative  FIELD.  Please  to  state  that  in  the  recanvass 
this  canvassing  board  put  back  Baker  County  so  as  to  include  only 
two  precincts. 

Mr.  Representative  KASSON.  That  is  only  to  say  that  the  gentle 
men  on  the  other  side  want  to  take  just  so  much  of  that  action  under 
order  of  the  court  as  suits  their  case  and  reject  all  the  rest.  They 
applied  the  rule  and  determined  the  result,  and  they  made  changes 
in  several  counties  both  ways ;  they  put  back  some  democratic  votes, 
they  put  back  some  republican  votes.  I  only  allude  to  it  in  answer 
to  the  statement  here  because  the  printed  proceedings  do  not  contain 
all  the  proceedings  in  that  case.  This  is  left  out.  But  if  the  case  is 
gone  into  those  facts  must  also  appear. 

Then  we  come  to  canvass  No.  3,  made  after  the  college  was  functiis 
officio,  andt  here  you  find  that,  not  satisfied  at  all,  they  appointed 
a  new  board  of  State  canvassers.  From  that  new  board  they  left 
out  the  attorney-general  of  the  State.  This  I  suppose  was  owing  to 
the  fact  that  his  opinion  had  been,  as  to  the  law  of  the  case  in  many 
points  of  the  canvass,  with  the  republican  members  of  the  board. 
These  papers  which  have  been  laid  on  your  desk  show  that,  instead 
of  the  attorney-general  being  a  member  of  the  new  State  canvassing 
board,  the  treasurer  of  the  State  was  substituted. 

Now,  I  ask,  if  you  are  to  recognize  canvass  after  canvass  and  the 
changing  results  of  partisan  affiliations,  the  changing  desires  of  in 
dividuals,  the  changing  influences  surrounding  the  canvassing  board, 
and  the  whole  political  aspect  of  the  State  ?  Are  you  to  change  your 
rules  of  law,  and  to  say  that  canvass  after  canvass  may  be  made  after 
function  exhausted  and  that  the  last  canvass  made  under  the  circum 
stances  should  prevail,  ex  post  facto  entirely,  expost  facto  by  law  au 
thorizing  it,  ex  post  facto  by  executive  authority,  expost  facto  by  the 
constitution  of  the  board,  ex  post  facto  by  the  exhaustion  of  the  func 
tions  of  the  officers  themselves  elect,  ex  post  facto  because  the  very 
terms  of  the  officers  elected  had  expired  ? 

This  ex  post  facto  certificate  No.  3  is  dated  January  26,  1877,  and 
when  opened  in  the  joint  meeting  of  the  two  Houses  was  stated  by 
the  President  of  the  Senate  to  have  been  received  only  the  day  before 
the  joint  meeting.  This  certificate  recites  a  law  of  January  17, 1877, 
and  alsp  a  law  of  January  26, 1877,  as  the  authority  for  the  certifi 
cate.  It  recites  the  third  canvass  of  which  I  have  already  spoken, 
and  which  was  made  on  the  19th  of  January,  1877,  and  the  copy  of 
that  canvass  is  certified  under  date  of  January  26,  1877.  Then  this 
canvass  No.  3  was  legislated  to  be  the  canvass  by  act  dated  January 
26,  1877.  These  are  the  essential  points  of  certificate  No.  3. 

The  objector  next  me  [Mr.  Field]  proposed  at  the  opening  to  ex 
plain  in  his  argument  what  he  styled  the  "jugglery  "  by  which  the 
Hayes  electors  got  their  certificates.  I  ask  this  Commission  if  there 
be  a  prima  facie  presumption  of  fraud,  whether  it  exists  against  those 
officers  elected  before  fraud  could  have  been  contemplated,  against 
a  board  that  acted  at  the  time  required  by  the  State  law,  against 
a  board  that  acted  at  the  time  provided  by  congressional  law, 
against  a  board  that  acted  in  ignorance  of  the  electoral  vote  in  other 
States,  as  it  was  contemplated  by  our  fathers  they  should  do ;  or  does 
that  presumption  of  fraud  exist  against  the  men  who  knew  of  the 
importance  of  a  change  of  the  result  in  Florida,  against  men  who 
acted  in  full  knowledge  of  the  necessity  of  the  action  they  took  to 
accomplish  their  results,  against  men  who  organized  a  new  tribunal 
and  enacted  a  now  law  to  accomplish  that  result  ? 


If  there  be  fraud,  if  there  be  conspiracy  as  alleged,  where  does  the 
presumption  of  law  under  these  circumstances  place  it  ?  Inevitably 
it  places  it  where  the  motive  of  the  act,  the  knowledge  requisite  to 
give  the  motive  effect,  and  the  purpose  to  be  accomplished,  were  all 
before  the  eyes  of  the  persons  participant  in  it.  Fraud  cannot  be  so 
presumed  against  the  parties  who  acted  in  conformity  with  law  and 
in  discharge  of  duty  at  the  time  required  by  law,  and  in  the  mode 
required  by  law,  and  in  the  presence  of  a  political  opponent,  as  that 
presumption  would  exist  against  those  who  do  it  at  irregular  times, 
outside  the  provisions  of  the  law,  and  with  the  full  knowledge  of  the 
effect  which  would  be  produced  upon  the  general  result.  The  con 
spiracy  is  not  with  the  first,  but  with  the  last  canvass. 

A  few  words  more  before  I  close.  I  believe  I  have  expressed  al 
ready  my  great  regret  that  we  have  not  been  able  on  both  sides  to 
argue  these  questions  exclusively  on  points  where  we  all  see  and  all 
know  are  to  be  found  the  hinges  on  which  this  decision  is  hung. 

But  my  honorable  friend  from  Virginia  [Mr.  Tucker]  in  his  argu 
ment  not  only  spoke  of  the  fact,  which  was  unsupported  by  any  evi 
dence,  but  which  he  said  he  could  support  by  some  evidence,  that 
there  was  bad  motive  and  fraudulent  conduct  on  the  part  of  the  can 
vassing  board,  of  which  I  have  seen  no  evidence  whatever  ;  but  he 
went  further  and  asked,  are  we  to  submit  this  great  question  of  the 
supreme  Magistrate  of  the  United  States  to  the  determination  of  a 
trio  of  oligarchs  in  Florida  ?  Trio  of  oligarchs !  What  shall  I  say  of 
the  quartette  of  oligarchs  in  my  State  who  exercise  corresponding 
functions  ?  What  shall  I  say  of  the  quartette  or  the  quintette  of 
oligarchs  that  exist  in  every  State  of  this  Union,  save  perhaps  two  or 
three,  who  are  empowered  in  the  same  manner  to  preserve  the  rights 
of  their  respective  States  as  canvassing  boards  ? 

Nay,  more,  I  should  like  to  ask  my  honorable  friend,  what  shall  I 
say  of  the  solo  of  oligarchy  in  Oregon  and  his  right  to  determine  the 
election  of  Chief  Magistrate  ?  Is  there  any  significance  in  giving 
a  name  of  this  sort  to  a  tribunal  which  is  acting  under  and  because 
of  the  provisions  of  the  Constitution  and  laws  of  the  United  States  or  of 
the  State  ?  I  answer  to  all  that  that  the  question  is,  where  does  the 
law  put  the  power  to  arrive  at  that  determination  on  which  action  is 
based  ?  Whether  that  be  one  man  or  five  men,  or  three  men,  that  de 
termination  is  prima  facie  valid,  and  can  be  vitiated  only  in  the  modes 
provided  by  the  laws  of  the  local  or  general  jurisdiction,  as  the  case 
may  be. 

The  case  is  made  when  it  is  found  to  be  in  accordance  with  Consti 
tution  and  law  in  time,  manner,  and  due  certification  of  authenticity. 
Can  it  be  upset?  Yes,  if  legal  provision  is  made  therefor.  Where? 
says  the  gentleman.  I  answer,  within  the  jurisdiction  where  the 
laws  provide  for  the  appellate  or  original  determination  of  rights. 
But,  says  the  gentleman,  suppose  no  such  provision  of  law  is  made  ? 
Then  I  answer  that  a  casus  omissus  of  proper  authority  is  no  reason  for 
the  usurpation  of  that  authority  where  not  a  scintilla  of  constitu 
tional  law  has  placed  it.  If  the  allegation  were  true,  it  simply  shows 
the  necessity  of  further  legislation  where  that  legislation  ought  to 
exist.  If  it  be  untrue,  the  whole  ground  and  fabric  of  the  argument 
here  falls  to  the  ground. 

The  Constitution  says  that  we  have  very,  very  little  to  do  with 
this  matter  of  elections  by  States.  The  history  of  it  shows  that  it 
was  intended  that  we  should  have  very,  very  little  to  do  with  the 
determination  of  the  result.  It  gave  us  no  authority  to  overrule 
State  action ;  and  the  alleged  right  to  change  a  duly  certified  result 
contains  within  itself  a  claim  of  right,  and  without  appeal,  to  deny 
to  the  States  that  exclusive  right  which  the  Constitution  took  such 
extraordinary  pains  to  confirm  to  them. 

If  you  have  the  right  to  say  that  another  set  of  votes  must  bo 
counted  in  Florida,  you  have  the  right  to  say  that  another  set  of 
votes  must  be  counted  in  New  York ;  and  if  you  take  jurisdiction  to 
allow  the  mere  ninety  votes  which  constitute  the  alleged  majorities 
in  Florida,  and  which  would  change  the  electoral  college  of  that 
State,  a  partisan  Congress  may  assert  that  the  sixty  thousand  ma 
jority  of  my  State  shall  be  overthrown,  and  we  cannot  question  it  nor 
take  appeal. 

I  speak  to  you  as  if  you  were  Congress,  because  the  act  says  that 
whatever  Congress  might  do  in  the  consideration  of  certain  questions 
you  may  do.  I  say  that  Congress  itself  in  no  element  of  its  character 
contains  a  justification  for  such  a  construction  of  its  power  as  it  is 
proposed  now  to  give  to  it.  It  is  the  legislative  body  of  the  country, 
and  may  inquire  into  all  these  facts,  which  they  have  perhaps  in 
both  branches  inquired  into,  because  they  may  be  needed  to  amend 
the  Constitution  or  to  amend  the  law. 

But  the  act  which  creates  this  board  of  fifteen  says,  not  that  you 
have  the  same  powers  which  Congress  has,  but  you  have  the  same 
powers  which  Congress  has  "/or  this  purpose."  What  purpose  ?  For 
counting  the  votes,  as  the  President  of  the  Senate  would  do  it  if  you 
had  chosen  to  give  him  that  power.  There  stand  the  great  bulwarks 
of  the  Constitution,  where  they  divide  the  three  powers  of  the  Gov 
ernment,  and  they  cannot  be  overthrown. 

You  cannot  be  judges  of  this  or  any  other  question  for  judicial  ac 
tion.  If  both  Houses  were  unanimous,  it  would  be  usurpation  for 
them  to  determine  judicially  who  was  entitled  to  the  vote  of  the  State 
of  Florida  as  constituting  its  electoral  college ;  and  without  that 
power  this  Commission  is  limited  to  the  determination  of  the  relative 
validity  and  authentication  of  these  three  certificates,  which  is  the 
certificate  that  is  duly  certified  to  be  counted.  Go  behind  this  cortifi- 


14 


ELECTORAL   COMMISSION. 


cato,  unless  simply  to  determine  the  verity  of  the  several  authenti 
cations  and  their  conformity  to  law,  and  you  launch  yourselves  into 
a  tumultuous  sea  of  allegations  of  fraud,  irregularity,  and  bad  mo 
tive,  and,  as  my  honorable  friend  on  the  other  side  says,  greed  of 
office  or  undue  ambition  to  secure  the  honors  of  the  State.  There  is 
no  limit  except  we  draw  tho  constitutional  line  narrowly.  You  can 
not  expand  it  without  launching  this  vessel  of  our  Constitution  upon 
a  sea  full  of  rocks  and  dangers,  where  there  is  every  prospect  that  it 
will  be  shattered,  and  the  very  structure  preserving  the  rights  of  the 
States  and  the  nation  will  go  to  pieces. 

Mr.  Commissioner  THURMAN.  Will  it  interrupt  your  argument, 
Mr.  Kasson,  if  I  make  an  inquiry  ?  Do  I  understand  your  argument 
to  go  to  this  length,  that,  if  the  State  of  Florida  had  elected  four 
members  of  Congress  or  four  persons  under  the  disability  of  the  four 
teenth  amendment  and  they  had  cast  their  votes  for  President,  we 
should  bo  bound  to  count  them  ? 

Mr.  Representative  KASSON.  I  have  borne  in  mind  that  a  ques 
tion  would  arise  as  to  Tennessee  and  some  other  States  touching  in 
dividual  electors,  as  it  is  also  presented  in  one  of  the  objections  that 
have  been  presented  in  the  House.  I  have  not  had  time  since  last 
evening  to  do  more  than  to  become  possessed  in  my  own  mind  of  the 
general  arguments  and  the  results  of  those  arguments  applicable  to 
tho  general  principles  of  this  case. 

I  have  no  doubt  that  the  provision  of  the  Constitution  touching 
offices  of  trust,  profit,  and  emolument,  and  that  also  relating  to  persons 
disqualified  by  participation  in  the  rebellion,  are  imperative  upon  the 
several  States,  and  it  is  expected  that  they  will  conform  to  it.  Whether 
we  can  go  behind,  whether  it  was  intended  that  we  should  go  behind, 
the  action  of  the  States  upon  the  assumption  that  they  had  violated 
that  constitutional  duty,  or  to  prove  that  they  had  violated  it,  is  a 
question  that  I  leave  to  the  consideration  of  those  who  shall  follow  me. 

Of  course  I  understand  that  one  of  tho  objections  in  Florida,  if  you 
do  permit  yourselves  to  go  behind  and  examine  it,  does  involve  that 
point ;  but  as  my  time  has  now  nearly  expired  I  have  not  the  oppor 
tunity  to  go  into  it  and  will  leave  it  to  counsel. 

The  PRESIDENT.    You  have  five  minutes  of  your  hour. 

Mr.  Representative  KASSON.  May  it  please  the  Commission,  I 
have  said  all  that  I  regard  essential  in  that  part  of  the  case  which 
has  fallen  to  me,  and  I  trust  my  honorable  friend  who  is  associated 
with  me  will  address  himself  still  more  effectually  to  points  which  I 
have  alluded  to  and  to  the  remaining  points  of  the  case. 

My  great  anxiety  and  my  belief  in  the  great  importance  of  this  case 
all  rest  upon  the  fact  that  it  is  proposed  that  Congress  shall,  through 
you,  usurp  judicial  powers  for  the  first  time  in  the  history  of  this 
country.  It  is  a  usurpation  which  loses  sight  of  the  great  divisions 
of  authority  in  the  Constitution  of  the  United  States  and  of  the 
original  reserved  rights  of  the  States. 

I  wish  in  addition  to  simply  call  the  attention  of  the  Commission 
to  tho  recent  decision  in  Florida,  which  has  been  published  and  in 
which  that  court  bases  its  decision  against  a  judicial  quality  in  the 
returning  board  of  Florida  upon  the  constitution  of  Florida,  which 
has  the  same  division  of  powers  to  which  I  have  referred  as  existing 
in  the  Constitution  of  the  United  States. 

The  court  therefore  says  that  this  canvassing  board  cannot  do  any 
thing  except  the  ministerial  act  of  determining  upon  the  face  of  the 
returns  irregularity,  fraud,  &c.;  and  by  a  strange  inconsistency  of  ar 
gument  the  gentlemen  on  tho  other  side  coming  to  Washington  in 
the  case  of  Florida  ask  this  Commission  to  take  the  other  ground 
which  has  been  overruled  as  law  in  Florida,  and  say  that  we,  who 
have  not  tho  powers  conferred  by  statute  upon  the  Florida  board, 
have  immensely  larger  powers  which  have  not  been  hinted  at  in  the 
Constitution  and  laws  of  the  United  States,  and  do  have  the  right 
to  exercise  judicial  functions. 

I  commend  to  the  consideration  of  the  Commission  that  decision  to 
which  I  refer  in  the  case  of  Drew  vs.  Stearns.  And  with  that  I  sub 
mit  this  part  of  the  case  to  the  consideration  of  the  Commission. 

The  PRESIDENT.  The  second  objector  will  be  heard  on  the  same 
conditions  and  limitations. 

Mr.  Representative  McCRARY.  Mr.  President  and  gentlemen  of  the 
Commission,  I  think  I  ought  to  say  in  justice  to  myself  that  perhaps 
no  counsel  ever  appeared  in  so  important  a  case  upon  so  short  a  notice 
and  with  such  inadequate  opportunity  for  preparation.  It  was  not 
until  about  four  o'clock  yesterday  that  I  was  made  aware  of  the  rule 
which  tho  Commission  had  promulgated  during  the  day  providing 
that  gentlemen  of  either  House  uniting  in  objections  to  these  votes 
should  bo  heard  before  the  tribunal;  but  appreciating  the  great  im 
portance  of  dispatch  in  the  conduct  of  this  case  I  have  not  felt  at 
liberty  to  ask  for  any  greater  indulgence  than  that  which  the  tri 
bunal  has  already  awarded. 

The  question  which  this  Commission  is  to  decide  is  tersely  and 
clearly  set  forth  in  the  act  of  Congress  under  which  it  has  been  organ 
ized,  and  it  is  "by  a  majority  of  votes"  to  "decide  whether  any  and 
what  votes  from  such  State  are  the  votes  provided  for  by  the  Consti 
tution  of  the  United  States." 

How  broad  is  the  jurisdiction  given  by  this  act  ?  How  far  can  the 
Commission  go  in  this  inquiry  ?  It  has  been  asserted  by  counsel  who 
addressed  the  tribunal  this  morning  that  you  sit  here  as  a  court  pos 
sessing  all  the  functions  and  powers  of  a  judicial  tribunal  clothed 
with  authority  to  hear,  try,  and  determine  a  case  of  quo  warranto,  in 
order  to  settle  tho  title  to  an  office.  The  announcement  of  the  learned 


counsel  of  this  proposition,  I  must  confess,  was  a  startling  one  to  me. 
If  it  be  true,  what  are  to  be  the  consequences  ?  If  this  tribunal  shall 
so  construe  the  Constitution  and  shall  hold  that  it  sits  here  as  a  court 
with  these  judicial  powers  to  try  the  title  of  every  one  of  the  three 
hundred  and  sixty-nine  presidential  electors  chosen  at  the  recent 
election  or  at  any  election,  it  will  follow  that  the  two  Houses  of  Con 
gress  sit  as  a  court  clothed  with  this  great  power  to  review  and  revise 
and  set  aside  and  hold  for  naught  the  action  of  all  the  States  of  this 
Union.  If  one  case  can  be  made  against  one  elector  in  the  United  States, 
requiring  Congress  or  this  tribunal  to  go  down  among  the  forty-five 
millions  of  people  and  decide  how  many  votes  were  legally  cast  for 
this  candidate  or  that,  a  case  can  be  made  against  every  one  of  the 
members  of  the  electoral  college  of  the  United  States  and  the  result 
is,  I  say  it  with  deliberation,  that,  unless  the  two  Houses  of  Congress 
shall  consent,  the  people  of  the  United  States  can  never  again  be  al 
lowed  to  choose  a  President  and  Vice-President.  It  is  not  necessary 
for  me  to  say  to  this  tribunal  that  it  is  utterly  impossible  for  the  two 
Houses  of  Congress  to  exercise  such  a  jurisdiction  as  this.  It  is  ut 
terly  impossible  for  this  tribunal  to  exercise  it  with  any  degree  of 
discretion  or  deliberation  even  in  the  few  cases  that  will  be  brought  to 
your  attention  and  adjudication.  If  the  Constitution  clothes  the  two 
Houses  with  the  power  now  asserted  to  try  the  title  of  all  the  elect 
ors,  not  upon  the  credentials  that  come  here  under  the  seal  of  the 
States  of  the  Union,  not  upon  the  evidence  which  the  laws  of  the 
land  prescribe  as  evidence  of  title  to  this  office,  but  by  an  inquiry  into 
the  question  how  many  people  have  voted  for  this  candidate  and  that 
and  in  all  the  States  of  tho  Union,  I  say  it  is  utterly  impossible  for 
either  the  two  Houses  of  Congress  or  this  tribunal  to  exercise  a  juris 
diction  like  that. 

How  are  we  to  determine  what  are  the  votes  of  a  State  provided 
for  by  the  Constitution  ?  Tho  Constitution  has  provided  the  extent 
of  this  inquiry,  has  limited  and  defined  it : 

Each  State  shall  appoint,  in  such  manner  as  the  Legislature  thereof  may  direct, 
a  number  of  electors,  equal  to  the  whole  number  of  Senators  and  Representatives 
to  which  tho  State  may  be  entitled  in  tho  Congress. 

The  election  of  President  of  the  United  States  is  by  the  States,  and 
the  States  appoint  the  electors.  Gentlemen  have  argued,  and  their 
whole  case  rests  upon  the  argument,  that  the  appointment  of  electors 
is  by  the  votes  of  the  people  at  the  polls,  that  that  constitutes  tho 
appointment,  and  that  therefore  the  Commission  must  inquire  how 
the  people  have  voted  at  the  polls  in  order  that  Congress  may  decide 
who  have  been  appointed  electors.  But,  may  it  please  tho  commis 
sion,  the  appointment  of  the  electors  is  not  by  the  votes  of  the  people 
at  the  polls.  That  may  possibly  be  one  of  the  steps  required  by  the 
laws  of  the  State,  but  the  appointment  of  the  electors  is  by  the  votes 
of  the  people  cast  at  the  polls,  by  the  action  of  such  tribunals  as  tho 
State  laws  have  created,  canvassing,  determining,  and  ascertaining  tho 
result  of  that  vote,  and  by  the  issuing  in  pursuance  of  that  canvass 
of  the  evidence  showing  the  election  of  the  electors.  The  State  acts 
through  its  officials,  through  its  constituted  authorities,  and  the  State 
declares  who  has  been  appointed.  Therefore  when  the  Constitution 
says  that  we  shall  inquire  who  have  been  appointed  electors  by  the 
State  in  accordance  with  the  laws  of  the  State  or  as  required  by  tho 
Legislature  of  the  State,  we  are  simply  to  inquire  what  persons  have 
been  declared  to  be  electors  by  the  tribunal  and  the  authority  which 
the  State  law  has  created  for  that  purpose.  Now  the  law  of  Florida, 
which  has  already  been  called  to  the  attention  of  the  Commission, 
provides : 

On  the  thirty-fifth  day  after  the  holding  of  any  general  or  special  election  for  any 
State  officer,  member  of  the  Legislature,  or  Representative  in  Congress,  or  sooner, 
if  the  returns  shall  have  been  received  from  tho  several  counties  wherein  elections 
shall  have  been  held,  the  secretary  of  state,  attorney-general,  and  tho  comptroller 
of  public  accounts,  or  any  two  of  them,  together  with  any  other  member  of  tho  cab 
inet  who  may  be  designated  by  them,  shall  meet  at  the  office  of  the  secretary  of 
state,  pursuant  to  notice  to  be  given  by  tho  secretary  of  state,  and  form  a  board  of 
State  canvassers,  and  proceed  to  canvass  tho  returns  of  said  election,  and  deter 
mine  and  declare  who  shall  have  been  elected  to  any  such  office  or  as  such  member, 
as  shown  by  such  returns.  If  any  such  returns  shall  bo  shown  or  shall  appear  to  bo 
so  irregular,  false,  or  fraudulent  that  the  board  shall  be  unable  to  determine  the 
true  vote  for  any  such  officer  or  member,  they  shall  so  certify,  and  shall  not  in 
clude  such  return  in  their  determination  and  declaration. 

By  that  statute  this  tribunal  was  created  with  the  power  to  can 
vass  the  votes  and  declare  the  result.  The  tribunal  did  canvass  tho 
votes  and  the  canvass  will  be  found  on  the  third  page  of  the  same 
document,  which  I  will  not  take  the  time  now  to  read,  but  acting 
under  the  authority  given  them  by  that  statute  they  ascertained  the 
result.  How  far  they  went  in  the  exercise  of  the  discretionary  power 
which  is  given  them  by  the  statute  may  not  be  material ;  but  it  is  a 
fact  which  will  appear,  if  this  commission  shall  go  into  the  inquiry, 
that  on  three  separate  occasions,  the  first  and  regular  canvass,  tho 
second  canvass  made  under  the  mandamus  proceedings  and  in  rela 
tion  to  the  office  of  governor,  and  on  a  third  canvass  made  subse 
quently,  this  board  constituted  by  the  laws  of  the  State  of  Florida 
ascertained  and  declared  that  the  gentlemen  known  as  tho  Hayes 
electors  had  a  majority  of  all  the  votes  cast. 

Now,  Mr.  President  and  gentlemen,  what  law  of  Florida  is  to  bo 
looked  at  in  order  to  determine  the  mode  prescribed  by  tho  Legisla 
ture  of  that  State  for  appointing  these  electors?  Are  wo  to  look  at 
the  law  as  it  existed  at  the  time  of  their  appointment  or  may  wo 
consider  statutes  that  have  been  passed  since  ?  One  of  tho  papers 
which  is  presented  is  based  entirely  upon  an  adjudication  of  one  of 


ELEOTOEAL  COMMISSION. 


15 


the  inferior  courts  of  that  State  and  upon  an  act  of  the  Legislature 
of  that  State  made  long  after  the  appointment  of  these  electors,  and 
long  after  they  had  discharged  the  functions  of  their  office.  It  ap 
pears  that  a  proceeding  in  quo  warranto  was  commenced  by  the  filing 
of  a  petition  on  the  6th  day  of  December,  the  day  upon  which  the 
electors  met  to  cast  their  votes ;  that  a  summons  was  served  upon 
that  day  at  an  hour  in  the  day  which  is  named  in  the  papers,  and 
that  the  electors  were  cited  to  appear  and  answer  on  the  18th  day  of 
the  same  month.  The  suit  thus  commenced  continued  and  passed 
through  various  stages  until  the  latter  part  of  January,  when  a 
judgment  was  finally  rendered  in  favor  of  the  gentlemen  known  as 
the  Tilden  electors ;  but  in  the  mean  time — whether  before  or  after 
the  commencement  of  the  original  suit  does  not  appear ;  I  have  seen 
nothing  in  the  record  that  shows  at  what  time  in  the  day  the  votes 
were  canvassed ;  but  it  is  entirely  immaterial — the  electors  appointed 
according  to  the  laws  of  Florida  proceeded  to  discharge  their  duties ; 
they  cast  their  votes;  they  adjourned  sine  die. 

It  is  claimed  by  counsel  that  this  quo  warranto  proceeding,  which 
went  into  judgment  nearly  two  months  after  the  casting  of  the  vote 
of  Florida  for  President  and  Vice-President  by  the  electors,  relates 
back  to  the  date  of  the  filing  of  the  petition  and  vacates  and  vitiates 
everything  that  was  done  in  the  mean  time.  That  I  think  is  not  the 
law.  The  writ  of  quo  warranto  is  a  proceeding  to  test  the  right  of  an 
incumbent  of  an  office.  It  does  not  restrain  him  from  acting  from 
the  time  that  the  original  summons  may  be  served.  It  does  not  oust 
him  from  the  office  until  there  is  a  final  judgment  of  ouster ;  and 
there  is  no  authority  for  the  declaration  of  counsel,  I  undertake  to 
say,  that  the  judgment  in  quo  warranto  relates  back  to  the  time  of  the 
filing  of  the  original  petition  and  vitiates  the  acts  of  the  officer  in  the 
mean  time.  The  authorities  are  the  other  way,  and  I  beg  to  cite  a  few 
cases  upon  that  point. 

I  refer  to  section  756  of  High  on  Extraordinary  Legal  Remedies: 
The  effect  of  judgment  of  ouster  upon  the  officer  himself,  where  the  information 


rested  of  all  official  authority  and  excluded  from  the  office  as  long  as  the  judgment 
remains  in  force. 

In  55  Illinois  Reports,  page  176,  will  be  found  the  case  of  the 
People  vs.  Whitcomb,  and  there  the  court  say  : 

The  question  sought  to  be  raised  by  the  information  in  this  case  is,  whether  the 
city  officers  can  extend  the  city  government  beyond  the  original  limits  of  the  town, 
ana  can  levy  taxes  and  enforce  ordinances  in  the  portion  of  territory  annexed  by 
the  act  of  February  23,  1869,  and  which  is  used  exclusively  for  agricultural  pur 
poses,  and  whether 'that  act  is  not  unconstitutional  and  void.  The  demurrer  to  the 
answer  of  respondents  brought  the  whole  record,  as  well  the  information  as  the 
answer,  before  the  court  to  determine  its  sufficiency.  The  first  question  presented 
by  the  demurrer  is,  whether  the  remedy,  if  any  exists,  has  not  been  misconceived ; 
whether  the  question  of  power  to  extend  the  city  government  over  this  territory 
thus  annexed  can  be  raised  by  quo  warranto. 

This  writ  is  generally  employed  to  try  the  right  a  person  claims  to  an  office,  and 
not  to  test  the  legality  of  his  acts.  If  an  officer  threatens  to  exercise  power  not 
conferred  upon  the  office,  or  to  exercise  the  powers  of  his  office  in  a  territory  or 
jurisdiction  within  which  he  is  not  authorized  to  act,  persons  feeling  themselves 
aggrieved  may  usually  restrain  the  act  by  injunction. 

I  next  refer  to  the  second  of  Johnson's  Reports,  page  184.  The 
whole  opinion  is  very  brief,  and  I  will  read  it : 

This  court  has  a  discretion  to  grant  motions  of  this  kind  or  to  refuse  them,  if  no 
sufficient  reasons  appear  for  allowing  this  mode  of  proceeding.  Theofficeof  Sweet 
ing,  the  acting  supervisor,  will  expire  in  April,  and  before  the  remedy  now  prayed 
for  can  have  any  effect.  There  must  be  an  issue  joined,  and  a  trial,  which  could 
not  take  place  before  the  next  election,  so  that  it  would  be  impossible  to  restore 
Teel  to  his  office.  It  would,  therefore,  be  idle  and  useless  to  grant  the  motion. 

That  was  an  application  for  the  writ  of  quo  warranto  to  try  a  title 
to  this  office. 

If  the  justices  have  been  guilty  of  any  misdemeanor,  the  party  aggrieved  must 
seek  a  different  remedy. 

Here,  if  the  Commission  please,  is  a  ease  in  Florida  that  at  the 
time  of  the  judgment  every  function  of  the  office  of  presidential 
elector  had  been  exercised.  The  office  had  ceased  to  be.  The  officer 
had  ceased  to  be  and  was  functus  officio.  What  is  the  extent  of  the 
term  of  office  of  a  presidential  elector  ?  There  is  no  period  of  time 
given  in  the  statute  during  which  he  shall  act ;  but  he  is  an  officer 
chosen  for  the  discharge  of  a  particular  public  duty.  When  that 
duty  has  been  performed  the  term  of  his  office  has  expired. 

I  call  attention  also  to  a  case  in  Massachusetts  decided  as  early  as 
1807,  the  case  of  Commonwealth  vs.  Athearn,  3  Massachusetts  Reports, 
page  285 : 

At  the  last  July  adjournment  in  Suffolk,  B.  "Whitman  filed  a  motion  for  a  rule  of 
court  against  the  respondent  to  show  cause  why  an  information  in  the  nature  of  a 
quo  warranto  should  not  be  awarded  against  him  for  claiming  to  hold  the  office  of 
town  clerk  of  Tisbury,  in  Dukes  County.  The  court  granted  a  ?ule,  de  bene  esse, 
returnable  at  this  term. 

And  now  the  chief-justice  suggested  to  "Whitman  that  since  granting  the  rule 
to  show  cause  the  court  had  considered  the  subject  more  fully  and  doubted  whether, 
from  the  impracticability  of  giving  a  remedy  in  the  case,  an  information  ought  to 
be  awarded  against  an  officer  holding  by  election  for  a  year  only.  "Whatever  may 
be  the  authority  of  the  court  to  issue  process  of  this  kind,  from  the  present  organi 
zation  of  the  terms  of  the  court,  it  will  in  no  case  be  possible  to  come  to  a  decision 
of  the  question  until  a  year  has  expired.  In  the  mean  time  another  election  will 
pass,  and  the  respondent  will  be  either  out  of  office  or  lawfully  in  by  virtue  of  a 
new  choice.  *  *  * 

PARKER,  J.  I  should  not  be  for  granting  an  information  in  any  case  where  the 
judgment  of  the  court  upon  the  information  can  have  no  effect.  The  officer  may 
De  liable  to  a  fine  in  case  judgment  of  a  motion  be  rendered,  but  not  otherwise,  as 
I  now  recollect.  When  the  information  comes  to  a  hearing,  this  man's  tenure  in 
the  office  he  claims  will  have  expired. 


And  therefore  they  refused  to  grant  the  writ,  because  the  functions 
of  the  officer  would  have  ceased  before  there  could  be  a  judgment  of 
ouster,  and  because  a  judgment  of  that  character,  if  the  man  had 
ceased  to  act  in  his  official  capacity,  would  be  null  and  void. 

I  refer  also  to  the  case  of  the  State  upon  the  relation  of  Newman 
vs.  Jacobs,  17  Ohio  Reports,  and  I  read  a  sentence  from  page  153 : 

But  further,  there  is  an  objection  to  the  proceeding  in  this  case,  even  as  to  the 
appointment  of  February  the  28th,  because  the  term  of  office  has  at  this  time  ex 
pired.  In  England  it  seems  not  to  be  considered  necessary  that  the  person  should 
continue  to  hold  the  office  at  the  time  of  applying  for  the  information.  In  New 
York  however  and  Massachusetts  the  information  has  been  refused  when  the  time 
must  expire  before  the  inquiry  would  have  any  effect,  leaving  the  parties  to  their 
common  remedies. 

I  next  cite  a  case  decided  by  the  supreme  court  of  Georgia,  and 
read  from  19  Georgia  Reports,  page  563,  the  case  of  Morris  et  al.  vs. 
Underwood  et  al. : 

In  England,  notwithstanding  the  term  of  office  has  expired  for  which  the  in 
cumbent  has  been  elected  who  is  sought  to  be  removed,  still  the  courts  of  that  * 
country  will  grant  leave  to  file  the  information  for  the  purpose  of  indicting  a  fine 
for  the  usurpation ;  and  that,  too,  perhaps,  where  no  judgment  of  ouster  can  be 
awarded.  It  will  be  found,  however,  that  even  there  this  is  only  done  in  those 
cases  where  the  office  illegally  held  is  one  of  a  public  nature,  such  as  mayor,  &c. 
But  the  American  courts,  from  the  peculiarity  of  their  constitutions,  laws,  and  forms 
of  government,  or  for  some  other  cause,  have,  with  great  unanimity,  repudiated 
this  doctrine  of  imposing  a  penalty.  It  has  never  been  enforced  in  this  State,  even 
where  the  proceeding  was  directly  at  the  instance  of  the  State.  Much  less  would 
it  be  in  a  case  like  this,  whore  the  effort  making  is  not  to  forfeit  the  charter  of 
the  bank,  but  to  redress  the  wrongs  of  the  relators  within  the  corporation.  In  such 
a  case  it  is  strictly  a  civil  proceeding. 

In  this  case,  the  term  for  which  these  directors  were  elected  had  expired  by 
efflux  of  time  six  months  before  the  rule  was  made  absolute.  There  could,  there 
fore,  be  no  judgment  of  a  motion  rendered. 

There  was  an  attempt  in  this  quo  warranto  proceeding  in  Florida 
to  render  a  judgment  of  amotionor  of  ouster  nearly  two  months  after 
the  expiration  of  the  term  of  office  by  the  discharge  of  every  duty  and 
every  function  which  belongs  to  an  elector  under  the  laws  of  the  land. 

And  if  no  fine  could  be  inflicted,  why  order  the  information  to  be  filed  ?  "Why 
trouble  the  country  with  a  trial  which'could  result  in  nothing  beneficial  to  the  ap 
plicants  or  prejudicial  to  their  opponents  ?  In  New  York  and  Massachusetts,  the 
information  has  been  refused  when  the  time  must  expire  before  the  inquiry  would 
have  any  effect,  leaving  the  parties  to  their  common  remedies.  (Angel  and  Ames 
on  Corporations,  436-'7.)  Much  less,  then,  will  the  suit  be  entertained  where  the 
term  of  office  has  already  expired. 

The  case  of  The  People  on  the  relation  of  Koerner  et  al.  vs.  Ridgloy 
et  al.,  in  the  supreme  court  of  Illinois,  is  to  the  same  purport,  but  I 
will  not  detain  the  Commission  by  reading  it.  It  is  volume  21  of  Illi 
nois  Reports,  page  65.  That  goes  to  the  point  that  the  proceeding 
in  quo  warranto  must  be  against  a  person  who  holds  and  executes  the 
functions  of  an  office.  It  is  not  against  the  man,  not  against  the 
individual,  it  is  against  the  officer ;  and  when  he  ceases  to  be  the 
officer  the  action  falls  to  the  ground  as  much  as  a  personal  suit 
against  an  individual  falls  when  the  individual  dies. 

Mr.  Commissioner  THURMAN.  Do  I  understand  Mr.  McCrary  to 
say  that  the  case  cited  decides  that  an  action  of  quo  warranto  prop 
erly  commenced  against  the  incumbent  of  an  office  abates  by  reason 
of  the  expiration  of  his  term? 

Mr.  Representative  McCRARY.  That  is  not  the  point  in  the  case 
precisely.  It  is  stated  in  the  syllabus  thus : 

The  information  should  allege  that  the  party  against  whom  it  is  filed  holds  and 
executes  some  office  or  franchise,  describing  it,  so  that  it  may  be  seen  whether  the 
case  is  within  the  statute  or  not. 

Mr.  Commissioner  THURMAN.    Atthe  time  of  the  commencement  ? 

Mr.  Representative  McCRARY.  At  the  time  of  the  commencement ; 
but  these  other  cases  do  hold  that  no  judgment  can  be  rendered 
against  a  party  out  of  office  in  a  quo  warranto  proceeding,  and  there 
is  no  authority  to  the  contrary  so  far  as  I  can  find  after  a  somewhat 
diligent  search  through  the  Library,  to  be  discovered  in  this  country, 
althotigh  a  different  rule  has  sometimes  been  followed  in  England. 

Mr.  Commissioner  EDMUNDS.  Is  there  any  English  case  in  which 
a  judgment  of  amotion  has  been  rendered  after  the  expiration  of  the 
term! 

Mr.  Representative  McCRARY.  I  have  not  consulted  the  English 
authorities ;  I  only  judge  of  their  character  from  vhat  I  see  in  the 
American  cases. 

Mr.  Commissioner  EDMUNDS.  The  cases  of  fine  are  reasonable 
enoiigh  ;  but  my  inquiry  is  whether  there  is  one  of  amotion. 

Mr.  Representative  McCRARY.  I  think  perhaps  there  is  no  case 
of  that  kind  even  in  England.  They  retain  jurisdiction  for  the  pur 
pose  of  assessing  the  fine,  and  for  no  other  purpose  whatever,  after 
the  expiration  of  the  term  of  office. 

Mr.  Commissioner  THURMAN.     How  about  the  judgment  forcosts? 

Mr.  Representative  McCRARY.  The  judgment  for  costs  I  think 
would  go  against  the  party  perhaps,  though  I  have  not  gone  into  that 
question. 

Now,  in  the  very  nature  of  things,  this  whole  proceeding  in  the 
courts  of  Florida  must  have  been  after  the  functions  of  the  electors 
had  been  fully  discharged.  The  Constitution  of  the  United  States 
does  not  prescribe  the  time  when  the  electors  in  the  States  shall  cast 
their  votes ;  it  does  prescribe  that  Congress  may  fix  the  time,  and  that 
it  shall  be  upon  the  same  day  in  all  the  States  of  the  Union.  In  pur 
suance  of  this  power  Congress  has  fixed  the  time  by  an  act  passed  in 
1792  fixing  the  first  Wednesday  in  December  as  the  time  for  the  cast- 
ins  of  the  votes. 


16 


ELECTORAL  COMMISSION. 


The  record  which  has  been  filed  in  the  quo  warranto  case  shows  that 
the  petition  was  filed  on  the  6th  of  December ;  that  the  appearance 
was  ordered  for  the  18th  of  December;  that  the  order  was  that  the 
respondents  should  demur  or  answer  by  the  28th  of  December.  Those 
were  in  the  original  orders,  and  it  was  at  a  much  later  period  when 
the  case  finally  came  to  judgment,  late  in  January. 

Now,  I  wish  to  call  the  attention  of  the  Commission  to  the  acts  of 
Congress  passed  in  pursuance  of  the  power  conferred  upon  Congress 
by  the  Constitution,  to  show  how  impossible  it  is  that  such  proceed 
ings  as  these  can  have  any  force  or  validity  whatever.  I  refer  to  sec 
tions  135  and  136  of  the  Revised  Statutes.  The  first  declares  : 

The  electors  for  each  State  shall  meet  and  give  their  votes  upon  the  first 
Wednesday  in  December  in  the  year  in  which  they  are  appointed,  at  such  place, 
in  each  State,  as  the  Legislature  of  such  State  shall  direct. 

Section  136  provides  that — 

It  shall  be  the  duty  of  the  executive  of  each  State  to  cause  three  lists  of  the 
names  of  the  electors  of  such  State  to  be  made  and  certified,  and  to  be  delivered 
to  the  electors  on  or  before  the  day  on  which  they  are  required,  by  the  preceding 
section,  to  meet. 

The  electors,  then,  are  to  be  appointed ;  they  are  to  receive  from  the 
executive  authority  of  the  State  the  evidence  of  their  appointment  on 
or  before  the  first  Wednesday  in  December.  How  can  it  be  possible 
that  any  court  in  Florida  could  have  jurisdiction  in  the  last  days  of 
January  to  decide  a  question  who  were  the  electors  in  that  State  ? 
The  gentlemen  who  exercised  these  functions  on  the  6th  of  December 
under  the  credentials  given  to  them  by  the  regular  State  authorities 
of  Florida  met  on  that  day  in  accordance  with  the  Constitution  and 
the  laws.  They  cast  their  votes.  They  made  their  return.  They 
certified  their  proceedings.  They  transmitted  them  to  the  President 
of  the  Senate.  They  discharged  every  function  that  belonged  to 
them  under  the  Constitution  and  the  laws  on  the  6th  day  of  December; 
and  it  was  impossible  for  them  to  have  discharged  it  after  that  date, 
unless  in  a  certain  contingency  which  is  provided  for  in  another  sec 
tion,  and  which  it  is  not  pretended  arose  in  this  case.  Section  140 
provides,  among  other  things : 

The  electors  shall  dispose  of  the  certificates  thus  made  by  them  in  the  following 
manner: 

One.  They  shall,  by  writing  under  their  hands,  or  under  the  hands  of  a  majority 
of  them,  appoint  a  person  to  take  charge  of  and  deliver  to  the  President  of  the  Sen 
ate,  at  the  seat  of  Government,  before  the  flrst  Wednesday  in  January  then  next 
ensuing,  one  of  the  certificates. 

Two.  They  shall  forthwith  forward  by  the  post-office  to  the  President  of  the  Sen 
ate,  at  the  seat  of  Government,  one  other  of  the  certificates. 

Three.  They  shall  forthwith  cause  the  other  of  the  certificates  to  be  delivered  to 
the  judge  of  that  district  in  which  the  electors  shall  assemble. 

That  is  a  statute  passed  in  pursuance  of  the  provision  of  the  Con 
stitution  which  requires  for  the  greatest  and  most  important  of  pub 
lic  reasons  that  the  electors  in  all  the  States  shall  assemble  and  dis 
charge  their  duties  upon  the  same  day.  Now,  if  it  be  true  that  after 
the  college  in  any  State  has  in  accordance  with  the  law  assembled 
upon  that  day  and  discharged  its  duties,  it  remains  to  any  court  in 
the  State  to  review  its  decision  after  its  action  has  been  transmitted 
to  the  seat  of  Government,  then  I  say  the  Constitution  in  one  of  its 
most  vital  provisions  has  been  trampled  upon  and  violated,  for  in 
that  case,  after  the  time  fixed  by  the  law,  after  the  result  of  the  elec 
tion  in  the  whole  Union  has  been  ascertained,  after  it  has  been  dis 
covered  that  by  changing  the  vote  of  a  single  State  the  result  of  the 
election  in  the  whole  nation  may  be  changed,  parties  may  institute 
their  proceedings,  may  bring  their  action  of  quo  warranto,  may  pro 
ceed  to  try  the  case,  and  may  determine  that  the  electors  who  have 
discharged  this  duty  011  the  day  fixed  by  the  Constitution  and  the 
laws  were  not  the  legal  electors.  In  one  State  an  inferior  court  hav 
ing  power  to  issue  the  writ  of  quo  warranto,  being  attached  to  one  side 
of  the  question,  will  entertain  a  petition  of  this  character  and  will 
decide  in  favor  of  ono  set  of  electors,  and  send  up  to  the  President  of 
the  Senate  the  record  of  his  proceedings  declaring  that  the  men  who 
had  voted  on  the  day  fixed  by  the  law  were  not  the  electors.  In 
another  State  another  judge  will  perhaps  render  a  judgment  in  favor 
of  a  set  belonging  to  the  other  side.  And  so  we  shall  be  called  upon, 
instead  of  counting  the  votes  provided  for  by  the  Constitution  of  the 
United  States  and  the  laws  of  the  land,  to  investigate  the  decisions  of 
all  these  courts  in  all  the  States. 

I  come  back  then  to  the  position  with  which  I  started,  and  I  repeat 
what  my  associate  has  said,  in  substance,  that  the  Constitution  de 
volves  upon  the  two  Houses,  or  upon  the  President  of  the  Senate,  or 
upon  the  person  who  counts  the  votes,  whoever  that  may  be,  the 
narrowest  possible  ministerial  duty.  The  framers  of  the  Constitution 
chose  that  word  which  better  than  any  other  word  in  the  English 
language  expresses  the  idea  of  ministerial  duty,  contradistinguished 
from  judicial  power  and  authority :  "  the  votes  shall  then  bo  counted." 
What  do  wo  mean  by  the  word  "  counted."  To  count  is  to  enumer 
ate  one  by  one.  It  is  a  narrower  term  than  the  word  "  canvass " 
which  we  find  used  in  laws  that  regulate  proceedings  of  this  charac 
ter,  for  to  canvass  implies  the  right  to  examine  into ;  but  the  word 
"  count "  expresses  the  idea  of  a  ministerial  duty  far  more  strongly 
than  any  other  word  in  our  language,  or  as  strongly  certainly  as  any 
other  word. 

I  will  add  one  other  word  with  reference  to  this  quo  ivarranto  pro 
ceeding.  I  feel  confident  that  this  Commission  will  determine  that 
the  whole  proceeding  is  wholly  null  and  void  in  so  far  as  the  duties 
of  this  Commission  are  concerned.  But  if  that  question  is  to  be  gone 


into,  we  propose  now  to  present  to  this  Commission  the  record  of  the 
fact  that  an  appeal  has  been  regularly  taken  in  that  case  and  that  it 
is  now  pending  in  the  supreme  court  of  the  State  of  Florida ;  and 
whatever  may  have  been  the  value  or  the  force  of  the  original  judg 
ment  of  the  circuit  court,  it  is  vacated  by  that  appeal ;  and  I  presume 
to  say  that  this  Commission  will  not  undertake  to  decide  a  case  that 
is  now  pending  before  the  supreme  court  of  Florida.  I  will  not  pre 
sume  to  anticipate  what  might  be  the  result  if  this  tribunal  enter 
taining  jurisdiction  of  that  case  should  decide  it  one  way  and  the 
supreme  court  of  Florida  when  they  reach  it  in  order  should  decide 
it  the  other  way.  Whether  it  would  form  a  ground  for  that  proceed 
ing  in  quo  warranto  under  which  one  of  my  learned  friends  proposes 
to  contest  or  thinks  we  might  contest  the  right  of  the  President  of 
the  United  States  to  hold  his  office,  is  a  matter  that  I  need  not  dis 
cuss. 

I  come  to  the  objection  that  one  of  the  electors  of  Florida  was  a 
shipping  commissoner  at  the  time  he  cast  his  vote.  I  am  advised  that 
such  is  not  the  fact,  and  that  if  the  Commission  will  go  into  an  in 
quiry  as  to  the  facts,  it  will  appear  that  the  gentleman  referred  to 
had  resigned  his  office  at  the  time  of  the  election.  Of  that  I  have  no 
personal  knowledge,  but  I  have  no  doubt  from  the  information  I  have 
received  that  such  is  the  fact.  But  how  does  that  question  come  be 
fore  this  tribunal  ?  The  objection  states  that  it  has  been  proven  by 
some  testimony  fcaken  before  a  committee.  The  act  under  which  this 
tribunal  is  organized  and  acting  prescribes  what  papers  shall  come 
before  it. 

"When  all  such  objections  so  made  to  any  certificate,  vote,  or  paper  from  a  State 
shall  have  been  received  and  read,  all  such  certificates,  votes,  and  papers  so  objected 
to,  and  all  papers  accompanying  the  same,  together  with  such  objections,  shall  be 
forthwith  submitted  to  said  commission. 

Now,  there  are  no  papers  accompanying  any  of  the  votes  or  papers 
purporting  to  be  votes  that  relate  at  all  to  this  matter  of  the  alleged 
ineligibility  of  one  of  the  electors.  I  apprehend  that  it  is  not  compe 
tent  under  this  act  for  any  member  of  either  House  to  make  any  ob 
jection  he  pleases  and  refer  to  any  papers  he  pleases.  He  must  base 
his  objection  upon  the  papers  accompanying  the  votes  or  the  certifi 
cates  alleged  to  be  votes.  Upon  this  question  I  think  that  all  we 
have  said  with  regard  to  the  finality  of  the  action  of  State  tribunals 
will  apply,  perhaps  not  with  the  same  force  as  to  the  question  whether 
we  can  inquire  as  to  the  individual  votes  of  the  citizens ;  but  still  the 
State  authorities  have  certified  that  these  parties  are  their  electors ; 
they  present  the  evidence  which  the  Constitution  and  the  laws  re 
quire  ;  they  have  discharged  the  functions  of  that  office  ;  they  have 
cast  their  votes ;  the  State  through  them  has  voted ;  it  is  not  the  vote 
of  the  elector;  it  is  the  vote  of  the  State  thab  has  been  registered  ; 
and  I  hold  that  no  inquiry  can  now  be  made  even  upon  that  question. 
The  vote  of  a  State  when  deposited  in  the  hands  of  the  President 
of  the  Senate,  certified  and  evidenced  as  required  by  the  Legislature 
of  that  State,  "  shall,"  in  the  language  of  the  Constitution,  "be 
counted." 

I  desire,  if  the  Commission  please,  to  yield  the  residue  of  my  time, 
which  I  think  is  some  six  or  seven  minutes,  to  my  colleague,  who  has 
another  suggestion  to  make. 

Mr.  Representative  KASSON.  I  do  not,  Mr.  President,  desire  the 
time,  except  a  very  brief  portion  of  it,  to  answer  after  a  little  reflection 
the  question  put  to  me  by  the  honorable  Commissioner  from  Ohio, 
and  I  wish  to  say  that  I  answer  it  according  to  my  best  judgment, 
submitting  it  very  deferentially  to  the  able  counsel  who  are  likely 
perhaps  to  consider  the  same  question,  for  I  understand  it  is  presented 
by  an  objection,  though  not  in  any  proper  form  appearing  upon  any 
other  certificates.  I  answer  the  question  in  accordance  with  the 
spirit  of  the  division  of  powers  of  the  different  branches  of  Gov 
ernment.  Congress,  under  its  power  to  give  effect  by  legislation  to 
constitutional  provisions,  might  probably  provide  by  law  for  inves 
tigation  of  the  question  of  personal  and  constitutional  disqualifica 
tion  by  judicial  adjudication,  because  it  is  a  judicial  proceeding  in 
its  nature,  not  executive  or  legislative ;  but  without  such  legislation 
it  is  not,  in  my  judgment,  a  question  to  be  considered  in  counting,  and 
the  question  cannot  be  tried  as  an  incident  of  count  by  either  an  ex 
ecutive  or  legislative  board. 

I  think  I  have  enabled  the  Commissioner  to  understand  the  principle 
on  which  I  consider  the  question  as  decided,  that  it  is  in  its  nature 
the  determination  of  a  judicial  right  and  cannot  be  taken  up  as  an  in 
cident  to  a  ministerial  function  of  counting,  nor  is  it  within  the  nar 
row  range  of  discretion  associated  with  the  phrase  "ministerial  count." 

The  PRESIDENT.  For  the  information  of  the  Commission  I  desire 
to  inquire  of  the  objectors  to  the  first  certificate  whetherthoy  propose 
before  the  argument  by  counsel  to  offer  evidence.  I  inquire  of  coun 
sel  for  the  information  merely  of  the  Commission,  that  wo  may  know 
how  to  act  in  consultation,  do  you  propose  to  offer  evidence  before 
proceeding  to  the  argument  ? 

Mr.  Representative  KASSON.  While  the  other  side  are  considering 
that  question  I  desire  to  state  the  position  of  our  side  on  another 
matter  that  was  omitted.  We  regard  as  not  within  tho  act  the  con 
cluding  part  of  the  objection  to  certificate  No.  1,  and  I  simply 
want  to  state  that  we  waive  no  right  to  exclude  that  objection  as  not 
within  the  jurisdiction  of  the  tribunal. 

The  PRESIDENT.  I  think  the  Commission  prefer  that  the  answer 
to  my  inquiry  should  come  from  the  counsel  rather  than  from  the 
objectors. 


ELECTORAL  COMMISSION. 


17 


Mr.  Representative  FIELD.  It  is  our  opinion,  if  the  Commission 
please,  that  we  should  odor  at  some  stage  of  the  proceedings  evidence, 
and  we  will  do  it  if  the  Commission  desire 

Mr.  Commissioner  EDMUNDS.  Are  you  speaking  now  as  an  objec- 
tor,  Mr.  Field  ? 

Mr.  Representative  FIELD.     I  am  speaking  as  an  objector. 

Mr.  Commissioner  EDMUNDS.  I  submit  as  one  member  of  the 
Commission  that  the  objectors  have  exhausted  their  functions  and 
the  rest  of  the  case  belongs  to  counsel. 

Mr.  Representative  FIELD.  I  was  simply  answering  the  question 
put  to  me. 

The  PRESIDENT.  In  the  first  place  I  addressed  it  to  the  objectors, 
but  I  changed  it  and  asked  counsel  whether  they  proposed  to  offer 
evidence  before  proceeding  with  the  argument. 

Mr.  MERRICK.  Mr.  O'Couor  requests  me  to  answer  your  honor 
that  we  expect  to  offer  evidence,  which  is  now  here,  before  proceed 
ing  with  the  argument.  We  have  been  under  the  impression  that  the 
evidence  was  already  before  the  Commission  without  any  necessity 
for  a  further  offer  on  our  part. 

The  PRESIDENT.  That  is  sufficient,  sir.  What  is  the  proposition 
of  counsel  on  the  other  side  ? 

Mr.  Commissioner  MILLER.  Before  proceeding  with  that  I  wish  to 
say,  as  one  of  the  Commissioners,  that  I  do  not  understand  that  any 
evidence  has  yet  been  admitted  in  this  case ;  and  I  suggest  to  the  coun 
sel  who  propose  to  offer  evidence  to-morrow  morning,  that  they  make 
a  brief  synopsis  or  a  brief  statement  of  what  it  is  they  propose  to  offer 
altogether,  instead  of  offering  it  in  detail  and  having  objections  raised 
to  every  particular  piece  of  testimony.  This  is  a  mere  suggestion 
from  myself. 

The  PRESIDENT.  Now  we  will  hear  the  reply  of  the  counsel  on 
the  other  side. 

Mr.  EVARTS.  We  have  no  evidence  to  offer  unless  there  should  be 
a  determination  to  admit  evidence  inquiring  into  facts  and  evidence 
should  be  produced  against  us  which  we  should  then  need  to  meet. 

The  PRESIDENT.  Should  the  Commission  decide  to  receive  evi 
dence,  you  expect  to  have  the  privilege  of  offering  it  afterward  ? 

Mr.  EVARTS.  We  do.  To  apply  it  to  this  particular  fact  of  Hum 
phreys,  whenever  it  is  made  to  appear  by  evidence  which  is  admitted 
by  this  Commission  that  Mr.  Humphreys  at  any  time  held  an  office, 
we  shall  need  to  give  evidence  perhaps  that  he  resigned  it  before  the 
election. 

The  PRESIDENT.  Of  course  no  such  question  would  arise  if  the 
Commission  should  decide  that  it  was  not  admissible. 

Mr.  EVARTS.  Undoubtedly  ;  and  we  suppose  we  may  say  on  this 
point  that  if  there  is  to  be  an  inquiry  which  adduces  evidence,  that 
evidence  is  to  be  proved  according  to  the  rules  which  make  its  pro 
duction  evidence,  the  system  of  the  common  law. 

The  PRESIDENT.  I  did  not,  put  the  inquiry  by  direction  of  the 
Commission.  It  was  merely,  as  we  are  to  have  private  consultation, 
that  we  might  know  what  was  expected  on  one  side  or  the  other. 

Mr.  Commissioner  THURMAN.  I  beg  leave  to  make  a  suggestion.  I 
suppose  itis  theincliuation  of  counsel  to  aid  the  Commission  andfacili- 
tate  its  labors  as  much  as  possible.  There  are  a  number  of  facts,  I 
suppose,  about  which  there  is  really  no  controversy  ;  I  mean  as  to  the 
existence  of  the  facts  themselves.  Whether  proof  of  them  is  admis 
sible  in  this  proceeding  is  a  question  of  law,  and  wholly  different  from 
the  question  of  whether  the  facts  exist  or  not.  Now  if  counsel  would 
agree,  as  far  as  they  can,  in  respect  to  those  facts  of  which  there  can 
be  no  controversy,  leaving  the  question  of  their  admissibility  as  a 
question  of  law  to  the  decision  of  the  tribunal,  it  would  very  much 
tend  to  save  our  time,  much  more  than  to  have  proof  of  the  facts 
offered  piecemeal  and  objections  argued  pro  and  con.  I  should  sup 
pose  that  counsel  would  be  inclined  to  aid  our  deliberations  and  fa 
cilitate  our  investigations  by  agreeing,  as  far  as  they  possibly  can, 
upon  what  are  the  facts  of  the  case  without  at  all  prejudicing  them 
selves  upon  the  question  whether  they  are  legally  applicable  to  this 
investigation. 

Mr.  Commissioner  EDMUNDS.  Mr.  President,  I  move  that  the  Com 
mission  adjourn  until  half  past  ten  o'clock  to-morrow. 

The  motion  was  agreed  to ;  and  (at  five  o'clock  and  three  minutes 
p.  m.)  the  Commission  adjourned. 


SATURDAY,  February  3,  1877. 

The  Commission  met  at  half  past  ten  o'clock  a.  m.  pursuant  to  ad 
journment,  all  the  members  being  present.  There  were  also  present : 
Hon.  Charles  O'Conor,  of  New  York,  ^ 

Hon.  Jeremiah  S.  Black,  of  Pennsylvania,      r\c  i  • 

R.  L.  Merrick,  esq.,  of  Washington,  ^  Of  counsel  in  opposition 

Ashbel  Green,  esq.,  of  New  Jersey,  I        to  certlfacate  No.  1. 

William  C.  Whitney,  esq.,  of  New  York,    J 
Hon.  William  M.  Evarts,  of  New  York,     1  ,-. 

Hon.  E.  W.  St  oughton,  of  New  York,          1  Of.  ™nnt?\. »'« Wos,t,on 
Hon.  Stanley  Matthews,  of  Ohio,  to   <**&<>****    Nos.  2 

Hon.  Samuel  Sbellabarger,  of  Ohio, 

The  Journal  of  yesterday's  proceedings  was  read  and  approved. 

The  PRESIDENT.    I  will  state  to  the  counsel  at  the  bar  that  the 


proceedings  under  Rule  4  are  concluded.     Proceedings  will  now  take 
place  under  Rule  3,  two  counsel  on  a  side  being  allowed. 

Doubtless  some  question  will  arise  as  to  the  best  mode  of  proceed 
ing.  It  occurs  to  the  Chair,  without  speaking  for  the  Commission, 
that  a  convenient  and  just  mode  may  be  that  counsel  representing  (lie 
objectors  to  certificate  No.  1  should  make  their  offers  of  proof  in  a  con 
cise,  well-arranged,  classified  form,  and  then  that  the  counsel  repre 
senting  the  objectors  to  the  second  certificate  should  make  their  ollns 
of  proof,  based  of  course  upon  the  condition  that  proof  should  be 
admitted,  it  being  understood  by  the  Chair  that  they  probably  may 
object  to  all  proofs  on  the  part  of  the  counsel  representing  object  ions 
to  certificate  No.  1.  They  can  therefore  make  their  provisional  offers 
of  proof  in  case  there  shall  be  a  decision  that  proofs  are  admissible. 
Then  the  Commission  will  have  before  it  a  case,  and  so  will  the  bar. 
The  case  then  would  be,  if  that  course  should  be  adopted  and  pur 
sued,  the  certificates  with  the  accompanying  papers,  the  objections, 
and  the  offers  of  proof  upon  which  the  counsel  on  the  one  side  and 
the  other  would  be  heard.  Then  the  Commission  would  in  a  great  de 
gree  have  before  it  the  whole  case  and  all  the  questions  that  arise 
under  it. 

Mr.  O'CONOR.  Mr.  President  and  gentlemen  of  the  Commission, 
advised  of  the  position  which  this  controversy  stood  in  and  the  stage 
of  it  at  which  we  had  arrived,  by  the  question  somewhat  suddenly 
propounded  last  evening  to  us  before  the  adjournment,  I  have  en 
deavored  in  the  interim  to  adjust  a  statement  of  what  seerned  to  me 
to  be  desirable  matter  in  the  nature  of  evidence  to  be  laid  before  this 
Commission — as  distinct,  and  as  succinct,  and  as  brief,  and  as  explana 
tory  and  intelligible  a  statement  as,  by  the  utmost  effort  I  could  pos 
sibly  make,  having  in  view  the  act  of  Congress  under  which  this 
Commission  is  acting,  which  seems  to  contemplate  great  promptitude, 
or  at  least  a  great  ettort  at  celerity  upon  the  part  of  all  concerned,  so 
that  the  possibly  numerous  matters  of  investigation  that  may  be  pre 
sented  may  be  gotten  rid  of  within  the  limited  time  allowed  by  the 
circumstances,  and  the  many  observations  that  have  fallen  from  the 
bench  evincing  on  the  part  of  the  honorable  Commissioners  a  strong 
desire  to  second  this  object  on  the  part  of  Congress,  and  to  accelerate 
as  much  as  possible  the  proceedings. 

I  did  not  prepare  that  exactly  in  the  form  of  an  offer  of  evidence ; 
but.  although  that  be  not  its  form,  that  is  the  substance  of  what  I 
have  written,  which  presently  I  will  read,  there  not  having  been  time 
even  to  make  a  fair  copy  of  it,  much  less  to  have  it  printed. 

Mr.  EVARTS.    Mr.  O'Conor,  will  you  allow  me  to  say  a  word? 

Mr.  O'CONOR.     Certainly. 

Mr.  EVARTS.  Mr.  President  and  gentlemen,  if  wo  are  to  assume 
that  the  intimations  of  the  President  are  the  order  of  the  Commission 
as  to  the  manner  of  the  conduct  of  the  trial,  it  is  the  first  knowledge 
we  have  that  that  order  will  be  the  method  of  this  trial. 

The  PRESIDENT.  It  is  not  the  order  of  the  Commission ;  it  was 
a  suggestion  from  the  presiding  officer. 

Mr.  EVARTS.  No  objection  was  made  by  any  of  your  associates ; 
and  if  Mr.  O'Conor  was  to  proceed  I  supposed  it  was  upon  that  idt-a  ; 
and  I  do  not  question  that  fact ;  I  only  wish  to  say  that  if  that  is  the 
order  of  this  Commission  as  to  the  method  of  this  trial,  it  is  the  lirst 
instruction  which  we  as  counsel  have  received  that  that  would  be 
the  method,  and  we  have  not  prepared  and  are  not  ready  to  proceed 
upon  that  method  of  trial  so  far  as  affirmative  action  on  our  part  is 
to  go. 

Mr.  Commissioner  EDMUNDS.  I  do  not  think  it  is  understood,  Mr. 
Evarts,  certainly  it  is  not  by  myself,  that  supposing  you  object  to  the 
proofs  offered  by  Mr.  O'Conor  you  are  necessarily  called  upon  at  the 
same  time  to  state  what  you  expect  to  prove  in  reply  if  his  proofs 
shall  be  received.  That  comes  later. 

Mr.  EVARTS.  That  comes  later,  of  reply  to  their  proofs  ;  but  the 
President  laid  down  a  proposition  that  we  were  to  propose 

The  PRESIDENT.    No  proposition. 

Mr.  EVARTS.  That  is  our  first  instruction  that  we  should  have 
that  right  or  authority. 

Mr.  Commissioner  EDMUNDS.  I  think  all  we  need  do  to-day,  Mr. 
Evarts,  is  to  hear  any  objections  you  may  make  to  the  proofs  offered 
on  the  other  side. 

Mr.  EVARTS.  And  we  should  not  be  called  upon  to  proceed  fur 
ther  to-day  ? 

Mr.  Commissioner  EDMUNDS.  You  will  not  be  called  upon  to  offer 
proofs  on  your  own  side,  so  far  as  I  understand,  because  it  may  not  be 
necessary. 

Mr.  O'CONOR.  With  great  respect  I  hope  the  learned  Commission 
is  not  committed  to  any  of  the  propositions  which  have  been  casually 
mentioned  either  by  counsel  or  by  any  one  of  its  members. 

The  PRESIDENT.     Or  by  the  presiding  officer. 

Mr.  O'CONOR.  Or  by  the  presiding  officer  who  I  understood  rather 
hastily  to  rule 

The  PRESIDENT.  I  have  no  authority  to  make  any  ruling  until 
the  Commission  instruct  me,  and  they  have  not  instructed  me. 

Mr.  O'CONOR.  I  was  not  instructed,  nor  had  I  any  earlier  notice 
nor  had  any  of  us  any  earlier  notice  than  the  learned  counsel  upon 
(he  other  side,  of  the  probable  course  of  things  this  morning  save 
what  sort  of  instruction  we  might  conceive  we  had  in  drawing  our 
own  inferences  from  the  observations* that  fell  from  the  Chair  and 
from  the  learned  Commission  on  bothsides  of  the  Chair  yesterday.  And 
my  object  in  framing  what  I  propose  to  read  to  the  court— -which  I 


18 


ELECTORAL  COMMISSION. 


have  not  myself  read  a  second  time  yet — was  not  to  conform  to  any 
particular  view  that  I  have  heard  exactly  from  any  quarter,  but  to 
place  the  Commission  in  possession  of  the  general  facts  of  the  case  in 
this  brief  and  condensed  form,  so  that  cne  proper  course  of  proceed 
ing  might  go  on  and  that  proper  course  be  adjudged  of  and  deter 
mined  in  a  fair  view  of  the  matter  by  the  Commission. 

The  chief  consideration  which  induced  me  to  adopt  this  course  was 
this :  One  of  your  rules  indicates  that  something  like  a  general  ar 
gument  upon  this  whole  case  and  its  merits  was  to  be  presented  to 
this  court  by  opposing  counsel,  each  being  allowed  a  period  of  two 
hours  on  the  main  question  and  say  fifteen  minutes  to  present  then- 
views  on  any  incidental  question  that  might  arise.  With  these  rules 
before  me  and  the  record  proper,  consisting  of  the  certificates  opened  by 
the  President  of  the  Senate  and  the  objections  to  them,  and  I  may  add 
as  part  of  the  record  the  statements  made  to  this  honorable  Commis 
sion  by  the  managers  on  both  sides,  I  was  led  to  believe  that  there 
would  be  something  possibly  quite  incongruous  and  unprofitable, 
owing  to  the  special  condition  of  this  proceeding,  in  such  a  course  as 
takes  place  ordinarily  in  the  subordinate  courts  before  a  jury  who 
are  presumed  to  be  entirely  incapable  of  discriminating  and  apt  to  be 
led  astray  if  they  hear  anything  which  is  not  to  be  taken  into  judg 
ment  in  the  final  consideration  of  the  case.  It  would  be  very  incon 
venient  if  such  a  course  were  to  be  taken  here  because  the  issue  as 
made  by  these  papers  to  which  I  have  referred — the  certificates  and 
the  objections — the  issue  as  made  at  least  by  the  counsel  in  favor  of 
the  Hayes  electors,  as  I  will  take  the  liberty  of  calling  them,  makes 
the  question  whether  any  evidence  outside  of  that  record  shall  be 
received  the  whole  question  in  controversy  in  this  case,  save  and  ex 
cept  only  the  possibility  of  some  infirmity  in  the  extrinsic  evidence 
or  some  possible  contradiction ;  and  inasmuch  as  I  have  supposed 
from  a  careful  though  very  recent  view  of  this  case  that  there  was 
neither  any  infirmity  in  any  evidence  which  the  supporters  of  the 
Tildeu  electors  desire  to  present,  nor  any  desire  to  offer  evidence  to 
contradict  that  evidence  so  as  to  raise  a  question,  I  was  led  to  the 
conclusion  that  the  admissibility  of  this  so-called  extrinsic  evidence, 
its  effect  and  the  final  merits  of  the  point  which  you  have  to  decide 
on  this  trial  between  two  sets  of  inspectors  or  two  classes  of  certifi 
cates,  that  these  three  heads  fairly  resolve  themselves  into  one  and 
the  same,  and  that  whenever  a  piece  of  evidence  of  this  extrinsic  char 
acter  is  ottered  there  is  literally  nothing  which  the  supporters  of  the 
Hayes  electors  desire  to  say  and  desire  to  present  to  this  Commission 
in  any  branch  of  this  controversy  that  will  not  then  be  relevant. 

Nor  can  I  perceive  that  a  decision  interlocutory  upon  one  of  these 
incidental  questions,  would  not,  if  favorable  to  the  exceptant  or  the 
objector,  be  conclusive  as  to  the  whole  case ;  because  that  decision 
would  almost  to  a  certainty  go  upon  an  affirmation  of  the  principal 
point  and  the  merits  on  which  the  supporters  of  the  Hayes  electors 
rely.  Consequently,  in  this  debate  of  fifteen  minutes  about  the  ad- 
missibility  of  particular  evidence,  we  should  have  to  argue  the  whole 
case.  There  would  be  there  a  difficulty  which  from  the  flexibility  of 
your  honors'  rules  could  be  obviated  by  your  giving  additional  time. 
But  it  has  not  appeared  to  me  that  that  was  the  true  course.  On  the 
contrary,  with  great  respect  to  the  better  judgment  of  my  learned 
opponents,  if  they  shall  differ  with  me,  or  to  any  honorable  member 
of  this  commission  who  may  have  taken  a  different  view  of  it,  my  con 
ception  of  the  matter  is,  that  all  the  needful  evidence  should  come  in 
subject  to  such  questions  as  to  its  competency  and  its  effect  as  may 
exist,  for  the  reason  that  they  necessarily  incorporate  themselves  with 
the  main  question  that  you  have  finally  to  decide. 

And  I  would  just  take  leave  to  add  here,  before  reading  the  paper 
which  I  mean  to  present,  that  such  is  the  usual  course  of  all  tri 
bunals  where  the  matter  of  fact  is  judged  of  by  judicial  experts,  such 
as  your  honors  must  all  be  pronounced  to  be  ;  and  the  rule  of  snapping 
promptly  an  exception  to  some  bit  of  possibly  irrelevant  testimony 
in  order  to  prevent  an  ignorant  jury  being  misled  by  some  improper 
considerations  growing  out  of  it  has  no  application  to  a  proceeding 
before  learned  experts,  learned  judges ;  and  it  is  unusual,  according 
to  the  practice  of  those  courts  in  which  the  judges  determine  the 
fact  as  well  as  the  law,  to  hear  any  argument  in  relation  to  the  ad 
mission  of  a  particular  piece  of  evidence  before  the  final  hearing, 
unless  it  should  chance  to  be  found  to  be  quite  convenient  to  take 
some  very  simple  and  isolated  point  by  a  motion  to  suppress  a  par 
ticular  deposition ;  as,  for  instance,  if  counsel  had  been  examined 
whose  deposition  ought  not  be  read,  or  something  of  that  kind. 

I  have  said  that  I  conceive  the  true  remedy  would  not  be  to  enlarge 
the  time  under  the  fifteen-minute  rule ;  but  to  pursue  the  other  course, 
to  take  the  evidence  that  may  be  offered  subject  to  the  exceptions 
to  be  considered  with  the  whole  case,  and  for  this  reason  which  I 
have  already  stated 

The  PRESIDENT.  Mr.  O'Conor,  t  am  obliged  to  ask  you  to  submit 
your  propositions. 

Mr.  O'CONOR.  I  will  submit  them  in  one  minute.  I  merely  wish 
to  state  one  single  proposition :  you  would  have  to  listen  over  and 
over  again  to  the  same  precise,  identical  arguments  in  the  final  hear 
ing  as  in  this  fifteen-minute  hearing  enlarged.  Now  if  the 

Mr.  EVARTS.  Shall  we  be  heard  on  this  preliminary  inquiry  or 
await  the  submission  of  the  proposition  ? 

The  PRESIDENT.  I  think  you  had  better  wait  until  you  hear 
the  proposition. 

Mr.  O'CONOR.    The  learned  counsel  has  said  something  to  the 


court  under  his  view  of  what  was  convenient  to  be  said,  and  your 
honors  have  extended  the  privilege  to  me.  That  is  all  I  consider  that 
I  am  doing. 

The  PRESIDENT.    We  will  hear  your  proposition  first. 

Mr.  O'CONOR.  I  am  not  sneaking  to  any  order  of  the  court,  but 
making  a  suggestion  which  your  honors  have  been  pleased  to  permit. 
I  will  speak  no  longer  than  may  be  agreeable.  I  now  proceed  to  read! 
the  paper  on  which  I  have  written  our  propositions : 

"  First.  On  December  6,  187b',  being  the  regular  law  day,  both  the 
Tilden  and  the  Hayes  electors  respectively  met  and  cast  their  votes, 
and  transmitted  the  same  to  the  seat  of  Government.  Every  form 
prescribed  by  the  Constitution,  or  by  any  law  bearing  on  the  subject, 
was  equally  complied  with  by  each  of  the  rival  electoral  colleges,  un 
less  there  be  a  difference  between  them  in  this :  The  certified  lists  pro 
vided  for  in  section  136  of  the  Revised  Statutes  were,  as  to  the  Tilden 
electors,  certified  by  the  attorney-general;  and  were,  as  to  the  Hayes 
electors,  certified  by  Mr.  Stearns,  then  governor.  All  this  appears  of 
record,  and  no  additional  evidence  is  needed  in  respect  to  any  part  of 
it." 

Perhaps  I  convey  no  new  light  by  saying  that,  but  it  is  for  the  sake 
of  presenting  as  distinct  matter  the  view  we  take. 

"  Secondly.  A  quo  warranto  was  commenced  against  the  Hayes  elect 
ors  in  the  proper  court  of  Florida  on  the  said  6th  day  of  December, 
1876,  before  they  had  cast  their  votes,  which  eventuated  in  a  judg 
ment  against  them  on  the  2,r>l,h  of  January.  1877.  It  also  determined 
that  the  Tilden  electors  were  duly  appointed.  The  validity  and  effect 
of  this  judgment  is  deter  in  in  able  by  the  record ;  and  no  evidence 
seems  to  be  desirable  on  either  side,  unless  it  be  thought  (1)  that  the 
Tilden  electors  should  give  some  supplemental  proof  of  the  precise 
fact  that  the  writ  of  quo  tmrranto  was  served  before  the  Hayesolectors 
cast  their  votes,  and  (2)  unless  it  be  desired  on  the  other  side  to  show 
the  entry  and  pendency  of  an  appeal  from -the  judgment  in  the  quo 
ivarranto." 

With  these  two  possible  and  very  slight  exceptions  the  whole  case 
on  this  branch  of  it  depends  upon  the  record. 

"  Thirdly.  To  show  what  is  the  common  law  of  Florida  and  also  the 
true  construction  of  the  Florida  statutes,  the  Tildeu  electors  desire 
to  place  before  the  Commission  the  record  of  a  judgment  in  the  supreme 
court  of  that  State  on  a  mandamus  prosecuted  on  the  relation  of  Mr. 
Drew,  the  present  governor  of  that  State,  by  force  of  which  Mr.  Stearns, 
was  ousted  and  Mr.  Drew  was  admitted  as  governor^  This  judgment,, 
together  with  the  court's  opinion,  is  matter  of  record,  and  they  require 
no  other  proof;  nor  is  there  any  technical  rule  as  to  the  manner  in 
which  this  Commission  may  inform  itself  concerning  the  laws  of 
Florida." 

If  I  may  be  permitted  to  interject,  it  will  be  seen  that  I  am  en 
deavoring  to  show  how  very  little  there  is  in  the  shape  of  proof  to  de 
lay  this  commission  in  proceeding  directly  to  argument. 

"  Fourthly.  The  legislation  of  Florida  subsequently  to  December  6, 
1876,  authorizing  a  new  canvass  of  the  electoral  vote,  and  the  fact 
of  such  new  canvass  and  the  due  formal  transmission  thereof  to  the 
seat  of  Government,  in  perfect  conformity  to  the  Constitution  and 
laws  except  that  they  were  subsequent  in  point  of  time  to  December 
6,  1876,  are  all  matters  of  record  and  already  regularly  before  the 
Commission. 

"Fifthly.  The  only  matters  which  the  Tilden  electors  desire  to  lay 
before  the  Commission  by  evidence  actually  extrinsic  will  now  be 
stated. 

"  I.  The  board  of  State  canvassers,  actingon  certain  erroneous  views 
when  making  their  canvass,  by  which  the  Hayes  electors  appeared  to 
be  chosen,  rejected  wholly  the  returns  from  the  county  of  Manatee 
and  parts  of  returns  from  each  of  the  following  counties:  Hamilton, 
Jackson,  and  Monroe." 

I  trust  I  have  omitted  none,  but  I  have  had  no  consultation. 

"In  so  doing  the  said  State  board  acted  without  jurisdiction,  as  the 
circuit  and  supreme  courts  in  Florida  decided.  It  was  by  overruling 
and  setting  aside  as  not  warranted  by  law  these  rejections,  that  the 
courts  of  F'orida  reached  their  respective  conclusions  that  Mr.  Drew 
was  elected  governor,  that  the  Hayes  electors  were  usurpers,  and  that 
the  Tilden  electors  were  duly  chosen.  No  evidence  that  in  any  view 
could  be  called  extrinsic  is  believed  to  be  needful  in  order  to  estab 
lish  the  conclusions  relied  upon  by  the  Tilden  electors,  except  duly 
authenticated  copies  of  the  State  canvass,"  that  is  the  erroneous  can 
vass  as  we  consider  it,  "and  of  the  returns  from  the  above-named 
four  counties,  one  wholly  and  others  in  part  rejected  by  said  State 
canvassers. 

"II.  Evidence  that  Mr.  Humphreys,  a  Hayes  elector,  held  office 
under  the  United  States." 

This  may  be  deemed  anticipatory  and  perhaps  not  proper  to  come 
from  me. 

"  Sixthly.  Judging  from  the  objections  taken  by  those  support 
ing  the  Hayes  electors  and  the  opening  argument  offered  in  their  be 
half,  the  supporters  of  the  Tilden  electors  are  led  to  b'olieve  that  no 
evidence  is  needed  or  intended  to  be  offered  by  the  supporters  of  the 
Hayes  electors  except :  first,  that  the  above-mentioned  appeals  were 
taken  and,  secondly,  that  Mr.  Humphries  had  resigned." 

If  I  may  be  permitted  to  say  a  word,  the  Commission  will  perceive 
that  I  have  acted  here  with  a  view  to  support  my  idea  that  the  facile 
method  is  to  take  these  proofs  subjected  to  all  question;  that  there  is 
not  enough  of  matter  to  produce  delay  or  confusion  or  conflict  in  re- 


ELECTORAL  COMMISSION. 


19 


spect  of  those  extrinsic  proofs  that  give  rise  to  a  judgment  in  discre 
tion  that  it  might  be  inconvenient.  On  the  contrary,  there  is  so  lit 
tle,  and  it  is  almost  so  completely  pure  matter  that  might  be  called  of 
record,  that  we  can  get  rid  of  the  matter  of  evidence  very  promptly 
and  easily  and  beneficially  as  to  time  and  as  to  results,  unless  the 
Commission  please  to  adopt  such  a  method  as  will  make  us,  on  the 
first  little  scrap  of  testimony  being  offered,  present  our  whole  case  on 
both  sides  and.  have  the  whole  merits  decided. 

This  paper  I  have  not  had  time  to  copy.  I  will  cause  it  to  be 
printed  if  the  court  consent  to  accept  it  at  all  and  deliver  it  up  as 
quickly  as  it  can  be  printed. 

Mr.  BLACK.  If  your  honors  please,  I  think  the  suggestions  that 
have  come  from  the  Commissioners  and  what  has  been  said  by  Mr. 
O'Conor,  as  well  as  what  has  fallen  from  the  gentlemen  on  the  other 
side,  relate  to  the  most  important  duty  that  you  have  to  perform  ; 
and,  therefore,  I  shall  be  pardoned,  I  trust,  for  making  a  remark  or 
two  at  this  moment. 

The  PRESIDENT.    Do  you  desire  to  make  further  offers  of  proof  ? 

Mr.  BLACK.  No,  sir;  I  desire  to  suggest  the  course  of  proceeding 
which  I  think  this  tribunal  is  bound  by  its  legal  duties  to  take  for 
the  purpose  of  reaching  the  justice  of  this  cause. 

The  PRESIDENT.  Mr.  Black,  I  think  we  ought  to  give  Mr.  Evarts 
an  opportunity  to  explain  his  views  before  we  hear  you. 

Mr.  EVARTS.    I  waive  iny  privilege  to  proceed. 

Mr.  BLACK.    I  am  perfectly  willing  that  he  shall  be  heard. 

The  PRESIDENT.  Mr.  Evarts  waives  his  privilege.  I  have  indi 
cated  to  him  that  he  would  be  heard. 

Mr.  EVARTS.    I  waive  the  privilege  to  precedence. 

Mr.  BLACK.     If  your  honors  please 

The  PRESIDENT.     It  is  not  the  moment  for  argument  now. 

Mr.  BLACK.  It  is  the  moment  for  suggesting  the  course  of  proceed 
ing  and  our  rights  with  reference  to  the  evidence  which  is  to  be  given. 
I  insist  upon  it  that  the  evidence  is  in,  and  that  we  are  not  bound 
to  make  any  offer  at  all. 

The  PRESIDENT.  That,  I  think,  is  part  of  your  argument  after 
the  cause  is  set  down  for  argument,  and  not  a  preliminary  statement. 

Mr.  BLACK.  Then  is  it  to  be  decided  that  this  evidence  is  out  or 
in  now  ? 

The  PRESIDENT.    Not  by  the  presiding  officer. 

Mr.  Commissioner  MILLER.  Let  me  suggest  that  Mr.  O'Conor  has 
made  a  proposition  to  submit  certain  evidence.  If  counsel  on  the 
other  side  have  no  objection  to  it,  there  is  no  occasion  for  further  argu 
ment.  If  counsel  on  the  other  side  submit  to  have  that  evidence 
come  in,  it  will  come  in,  and  we  can  go  on.  I  do  not  understand  pre 
cisely  what  it  was  that  Mr.  Evarts  waived. 

Mr.  EVARTS.     I  waived  my  privilege  of  preceding  Judge  Black. 

Mr.  Commissioner  MILLER.  If  you  want  to  object  to  this  proposi 
tion  for  evidence,  now  is  the  time  to  object,  certainly. 

Mr.  EVARTS.    That  I  understand,  if  the  Commission  please. 

The  PRESIDENT.  I  think  Judge  Black  had  better  deter  until  we 
hear  from  Mr.  Evarts ;  otherwise  there  may  be  misunderstanding. 
We  will  hear  Mr.  Evarts. 

Mr.  EVARTS.  The  question  whether  the  certificates  transmitted 
from  the  States  that  fall  within  the  warrant  of  such  transmission  by 
the  Constitution  and  laws  of  the  United  States  constitute  the  mate 
rial  upon  which  the  duty  of  counting  the  vote  of  the  State  is  to  pro 
ceed,  or  whether  the  authority  vested  by  the  Constitution  with  the 
power  to  count  can  seek  or  receive  extrinsic  evidence  of  any  kind,  in 
any  form,  to  be  added  to  the  certificates  in  the  hands  of  the  Presi 
dent  of  the  Senate  under  the  Constitution,  is  no  doubt  a  principal  in 
quiry  of  law  and  of  jurisdiction  in  this  Commission,  which,  once  set 
tled  upon  principle  and  by  your  decision,  will  go  to  a  certain  extent 
in  superseding  or  predetermining  your  action  upon  the  merits. 

Mr.  Commissioner  STRONG.  Mr.  Evarts,  allow  me  to  suggest  that 
perhaps  I  do  not  understand  Mr.  O'Conor's  position.  I  have  not  under 
stood  Mr.  O'Conor  as  offering  evidence  at  all.  He  has  suggested 
what  he  supposes  to  be  in  evidence  and  suggested  what  he  might 
offer ;  but  there  has  been  no  offer  made,  so  far  as  I  have  understood 
him.  If  there  has  been  an  offer  made,  your  province,  it  seems  to  me, 
is  simply  to  withhold  objection  or  to  object  to  the  admission  of  the 
evidence  so  offered. 

Mr.  EVARTS.  Am  I  to  understand  that  my  objection  cannot  be 
accompanied  with  any  observation  ? 

Mr.  Commissioner  MILLER.  If  you  object,  we  will  hear  argument. 
We  cannot  hear  argument  before  anything  is  offered. 

Mr.  Commissioner  BRADLEY.  I  understand  Mr.  O'Conor  to  suggest 
that  the  extrinsic  evidence  mentioned  by  him  be  received  provisionally 
for  the  purpose  of  the  argument,  and  not  to  be  decided  upon  by  the 
Commission  at  present.  That  is  what  I  understood  Mr.  O'Conor.  If 
that  is  his  position,  then  it  is  simply  a  question  of  convenience  whether 
that  would  be  the  better  course  or  whether  we  had  better  have  an 
argument  upon  the  question  of  the  admissibility  of  evidence  now 
alone,  before  going  into  an  argument  on  the  merits.  As  the  ar 
gument  on  the  admissibility  of  evidence  would  necessarily  greatly 
involve  the  merits,  it  seems  to  me,  unless  counsel  on  the  other  side 
have  forcible  objections  to  that  plan,  Mr.  O'Conor's  suggestion  is  a 
good  one,  because  it  would  then  unify  the  argument,  make  one  argu 
ment  of  the  whole  case;  and  the  court  upon  the  close  of  it  would 
decide  both  questions :  first,  whether  the  argument  was  admissible, 
£pd,  if  it  was,  then  as  to  its  effect. 


Mr.  Commissioner  HOAR.  Mr.  President,  suppose  Mr.  O'Conor'a 
offer  of  testimony  be  objected  to  by  the  other  side,  and  then  the  Com 
mission  hear  the  argument  of  the  case  as  it  then  stands,  resembling 
more  nearly  than  any  other  judicial  proceeding  that  I  think  of,  an  argu 
ment  made  on  a  demurrer  to  the  plaintiffs  evidence,  the  evidence  not 
being  considered  as  in  but  as  offered. 

The  PRESIDENT.    That  was  the  view  of  the  Chair. 

Mr.  Commissioner  HOAR.  Now'if  we  should  hear  the  counsel  on 
both  sides  on  the  case  presented  by  the  certificates  which  are  before  the 
Commission,  upon  the  offer  of  evidence  made  by  Mr.  O'Conor  and  ob 
jected  to  by  the  other  side,  it  seems  to  me  that  that  would  present  (I 
do  not  know  what  other  questions  may  arise  in  the  case)  one  princi 
pal  question  of  the  case  in  the  most  clear,  convenient,  and  quick  form. 

Mr.  Commissioner  THURMAN.  Mr.  President,  I  should  like  to 
inquire  of  counsel  who  support  certificate  No.  1,  what  objection  they 
have  to  all  the  evidence  being  received  subject  to  all  exceptions,  not 
precluding  any  objection  to  it  whatsoever  I  It  appears  from  the  state 
ment  of  Mr.  O'Conor  that  the  testimony  to  be  produced  by  him  is  in  a 
very  small  compass.  How  great  may  be  the  volume  of  testimony,  if 
any,  produced  on  the  other  side,  I  do  not  know.  But  what  objection  is 
there,  as  this  is  a  trial  not  by  jury  but  by  a  court,  to  receiving  all  this 
testimony  subject  to  all  exceptions,  and  then  arguing  its  admissibility 
with  the  main  argument  in  the  cause,  allowing  counsel,  if  it  become 
necessary  by  the  adoption  of  that  course,  more  time  than  the  third 
rule  allows,  such  further  time  as  may  be  necessary  in  order  to  consider 
the  question  of  the  admissibility  of  the  evidence  as  well  as  the  main 
question?  What  objection  is  there  to  that!  I  should  like  Mr. 
Evarts  to  answer. 

The  PRESIDENT.  In  the  absence  of  other  discussion  I  will  state 
the  view  of  the  Chair.  I  shall  regard  the  paper  read  by  Mr.  O'Conor 
as  an  offer  of  proof.  Nothing,  therefore,  remains  to  the  other  side  ex 
cept  to  object  or  waive  objections. 

Mr.  EVARTS.  Then  I  am  not  prepared  to  reply  to  Mr.  Commissioner 
THURMAN. 

The  PRESIDENT.  It  is  hardly  necessary,  because  you  are  to  have 
full  argument  as  well  as  a  brief  explanation  of  the  objection. 

Mr.  EVARTS.    I  rose  to  speak  to  the  precise  point 

The  PRESIDENT.     Do  you  object  to  the  offer  of  proof? 

Mr.  Commissioner  THURMAN.  I  suggest  that  Mr.  Evarts  ought  to 
answer  my  inquiry. 

Mr.  EVARTS.  I  rose  originally  to  speak  to  the  very  point  to  which 
Mr.  Commissioner  TIIURMAN  has  drawn  my  attention. 

The  PRESIDENT.  Very  well,  sir;  you  may  reply  to  that  inquiry. 
I  wished  to  get  at  the  case  as  soon  as  may  be.  That  was  my  pur 
pose. 

Mr.  EVARTS.  I  will  bo  as  brief  as  I  can,  and  certainly  fall  quite 
within  the  fifteen  minutea.  The  proposition  is  that  the  preparation 
of  the  case  as  ready  for  argument  upon  its  exhausted  and  completed 
merits  on  either  alternative  of  the  views  of  this  Commission  as  to  the 
exclusion  or  admission  of  evidence,  shall  be  made  up  by  provisional 
acceptance  of  the  mass  of  proof,  whatever  it  may  be,  to  be  discussed 
as  to  admissibility  and  pertinency  and  efficacy  in  the  conclusions  of 
the  tribunal  as  a  part  of  the  final  argument.  That  I  understand  to 
be  the  proposition. 

The  difficulty  with  that  is  it  requires  the  inclusion  of  all  the  counter 
vailing  proof  that  we  opposing  their  certificate  or  supporting  ours 
have  a  right  to  present  under  some  determination  of  this  court,  as  to 
that  right;  for  if  you  go  beyond  the  evidence  furnished  from  the 
hands  of  the  President  of  the  Senate  into  an  inspection  and  scrutiu y 
of  the  election  in  the  State  as  upon  a  trial  of  right  to  the  office,  then 
we  say  that  the  tribunal  that  accepts  that  task  and  is  to  fulfill  that 
duty  is  to  receive  evidence  that  will  make  the  scrutiny  judicial  and 
complete  from  the  primary  deposit  of  the  votes  to  the  conclusion  of 
the  election.  Now  this  Commission,  as  I  suppose,  does  not  contem 
plate  a  provisional  introduction  of  all  that  evidence,  oral,  document 
ary,  record,  and  otherwise,  on  our  part,  which  comes  in  without 
objection  and  subject  only  to  the  sifting  of  a  final  argument.  That 
is  my  suggestion  in  reference  to  this  intimation  of  convenience  of  a 
de  bene  esse  introduction  of  evidence.  The  evidence  by  which  under 
the  instruction  of  this  Commission  that  we  have  the  right,  we  are  let 
into  a  scrutiny  of  the  election  in  Florida  is  a  scrutiny  which  can  only 
be  exhausted  by  oral  testimony  and  by  the  fundamental  original 
transactions  of  the  election.  That  is  the  difficulty  in  selecting  a  part 
of  the  evidence  to  be  admitted  provisionally  as  furnishing  the  ground 
and  area  of  a  final  discussion,  because  it  does  not  include  the  evidence 
upon  both  sides  which  under  some  post  hoc  determination  of  the  court 
on  the  final  argument  may  be  properly  introducible. 

Now  I  object  to  the  evidence  now  offered. 

Mr.  BLACK.  Am  I  in  order  to  say  a  word  or  two  in  reply  to  Mr. 
Evarts  ? 

The  PRESIDENT.  A  brief  explanation.  I  wish  to  get  to  the  argu 
ment  as  soon  as  may  be. 

Mr.  BLACK.  We  insist  that  the  whole  of  the  evidence,  including 
that  mentioned  by  Mr.  O'Conor,  in  this  paper  of  his,  has  been  given 
already,  and  is  a  part  of  the  record.  A  question  arose  before  the  two 
Houses  of  Congress  whether  certain  votes  offered  for  President  and 
Vice-President  ought  to  be  counted  or  not.  Whether  they  ought  or  not 
depended  upon  the  question  whether  they  were  votes  or  papers  falsely 
fabricated.  Not  with  any  purpose  of  going  behind  the  appointment 
of  the  electors,  but  for  the  purpose  of  ascertaining  what  electors  had 


ELECTORAL  COMMISSION. 


been  appointed,  who  were  the  true  agents  of  the  State  in  casting  its 
vote,  the  two  Houses  proposed  to  use  their  verifying  power.  Their 
purpose  was  not  to  entertain  an  appeal  from  the  decision  of  the  State, 
but  to  ascertain  what  that  decision  was.  This  involved  a  question  of 
fact.  It  was  absolutely  necessary  that  the  conscience  of  the  two 
Houses  should  be  informed  concerning  the  truth  of  the  case  which 
they  were  to  decide,  and  accordingly  they  took  a  perfectly  legitimate 
and  proper  mode  of  ascertaining  it.  They  sent  their  committees,  had 
evidence  taken.  These  committees  collected  the  documents,  put  the 
whole  thing  into  a  proper  form,  and  then  came  back  and  offered  it  to 
the  two  Houses,  by  whom  it  was  received  and  made  part  of  the  record 
of  this  case.  And  when  you  were  appointed  as  a  substitute  for  them 
and  became  the  keepers  of  their  conscitMice  they  required  you  to  tell 
them  what  they  ought  to  do  and  to  make  the  decision  which  upon 
the  evidence  that  was  before  them  they  ought  to  make.  That  evi 
dence  I  say  was  put  in  and  the  portion  of  it  whicli  was  taken  by  com 
mittees  of  the  House  of  Representatives  was  laid  before  that  House 
after  a  tierce  struggle  and  the  filibustering  of  half  a  night  to  keep  it 
out. 

The  President  of  the  Senate,  the  president  of  the  two  bodies, 
handed  this  evidence  all  of  it  over  in  bulk  to  be  used  here  by  this 
Commission.  You  have  seen  it.  I  cannot  conceive  of  anything  more 
unjust  or  more  wrong  than  to  talk  about  the  necessity  of  our  pro 
ducing  this  evidence  piecemeal,  here  a  little  and  there  a  little,  line 
upon  line,  in  order  that  it  may  be  submitted  to  the  scrutiny  of  coun 
sel  who  will  apply  to  it  those  snapperadoes  of  nisi  prius  practice 
which  might  do  if  this  case,  instead  of  concerning  the  rights  of  a  whole 
nation,  related  to  the  price  of  a  sheep.  If  your  honors  suppose  that 
it  is  to  be  taken  up  de  novo  and  that  everything  is  to  be  done,  then 
of  course  you  are  to  proceed,  how  ?  According  to  some  approved 
rule  of  fair  play  and  natural  justice.  What  is  that?  The  rule  that 
prevails  in  courts  of  chancery,  and  not  the  artificial  rules  that  are 
provided  for  by  the  common  law  of  England  in  cases  of  trial  by 
jury.  You  know  surely,  I  need  not  say,  that  when  a  party  files  his 
bill  in  chancery  ho  may  put  in  along  with  it  all  the  evidence  that  he 
has  in  his  possession.  There  can  be  no  objection  to  the  evidence  in 
a  court  of  equity.  There  is  no  such  thing  known  as  objecting  to  the 
admissibility  of  evidence  there.  The  defendant  cannot  object  to  it 
because  he  is  uot  in  court  at  the  time  the  bill  is  filed.  And  when 
the  defendant  puts  in  his  answer  ho  may  accompany  it  with  all  the 
evidence  he  has.  If  either  of  the  parties  need  any  more  the  court 
does  exactly  what  the  two  Houses  have  done  in  this  case.  They  ap 
pointed  their  own  agents  to  take  the  evidence  and  report  it.  An  ex 
aminer,  a  master  in  chancery,  an  auditor,  or  other  assessor  of  the 
court  who  takes  evidence  for  the  court,  is  doing  precisely  the  office 
for  the  court  that  these  committees  have  done  for  the  two  Houses  of 
Congress.  There  is  no  such  thing  when  the  evidence  is  taken  as  ob 
jecting  to  it  before  it  is  made  a  part  of  the  record.  It  is  as  a  matter 
of  course  filed  whenever  it  is  offered  by  the  party  if  he  does  it  regu 
larly  upon  a  rule  day.  He  need  not  even  come  into  the  court  and 
get  a  special  allocator  of  the  chancellor  for  it. 

Now  the  rule  about  admitting  and  rejecting  evidence,  the  rule  of 
procedure  for  that  purpose  always  throws  the  burden  of  proving  that 
it  ought  to  go  out  upon  the  party  who  does  not  like  to  have  it  in. 
The  question  of  materiality  or  relevancy,  what  its  value  and  weight 
are,  as  what  probative  force  ought  to  be  given  to  it  by  the  court,  is  a 
question  which,  as  one  of  the  judges  said  a  moment  ago,  is  always  to 
be  discussed  upon  the  hearing,  and  determined  by  the  final  decree  of 
the  court.  Evidence  may  come  from  an  improper  source  or  it  may 
come  through  an  illegal  channel.  There  it  is  the  duty  of  the  party 
who  makes  any  objection  to  it  to  move  for  its  suppression,  but  it  is 
never  in  order  for  him  to  make  objection  to  it  when  it  is  filed  or  when 
it  comes  before  the  court  and  is  made  a  part  of  the  record. 

If  your  honors  please,  you  cannot  safely  adopt  an  artificial  rule  of 
the  common  law  which  prevails  in  a  trial  by  jury,  and  where  evi 
dence  is  offered  piece  by  piece  to  the  court,  and  is  there  sifted  and 
scrutinized  before  it  is  allowed  to  go  to  the  jury.  That  rule  is  made 
necessary  by  these  two  considerations :  First,  that  it  is  deemed  most 
important  to  the  interests  of  justice  that  the  jury,  so  far  as  possible, 
should  be  kept  in  utter  ignorance  of  everything  that  is  uot  material, 
lest  their  judgments  might  be  misled.  The  court  looks  at  the  evidence 
when  it  is  offered,  and  refuses  to  lot  anything  be  hoard  which  is  not 
a  necessary  and  proper  element  of  a  just  verdict.  This  rule  prevails 
nowhere,  even  in  the  common-law  courts,  except  where  the  trial  is 
before  a  jury.  In  all  other  cases,  causes  in  chancery  as  well  as  in  all 
equity  and  ecclesiastical  cases,  and  in  all  admiralty  cases,  the  doctrine 
is,  that  whenever  the  evidence  is  offered  it  becomes  a  part  of  the  record 
by  the  fact  that  it  is  put  on  the  record.  I  do  not  say  that  you  are  bound 
to  believe  whatever  is  here ;  I  do  not  say  that  you  are  bound  to  give 
to  it  more  force  or  weight  than  it  is  entitled  to ;  not  more  force  and 
\\eight  perhaps  than  a  judge  at  a  court  of  nisi  prius  would  give  to 
evidence  which  he  rejects;  but  you  are  to  sift  it  and  scrutinize  it  and 
to  separate  the  chaff  from  the  wheat  upon  the  final  hearing  of  the 
cause,  and  it  is  impossible  for  you  to  proceed  otherwise  without  a 
very  great  amount  of  trouble,  without  an  expenditure  of  more  time 
than  you  have  got  to  expend  upon  this  subject. 

For  every  reason,  for  purposes  of  justice  as  well  as  the  purposes  of 
convenience,  it  is  necessary  that  you  should  pursue  the  course  of 
courts  of  equity,  and  not  come  the  quarter-sessions  rule  over  us. 


The  PRESIDENT.  Judge  Black,  I  must  regard  this  as  an  interloc 
utory  question.  The  third  rule  is  that — 

In  the  hearing  of  interlocutory  questions  but  one  counsel  shall  be  heard  on  each 
aide,  and  he  not  longer  than  ttfteeii  uiinutea. 

Your  time  has  expired. 

Mr.  BLACK.    Has  already  expired  ? 

The  PRESIDENT.    Yes,  sir. 

Mr.  Commissioner  MILLER.  Mr.  President,  I  move  that  counsel  on 
each  side  be  allowed  two  hours  to  discuss  the  question  raised  by  Mr. 
Evarts's  objection  to  testimony,  as  to  whether  any  other  testimony 
will  be  considered  by  this  commission  than  that  which  was  laid  be 
fore  the  two  Houses  by  the  presiding  officer  of  the  Senate. 

Mr.  Commissioner  THURMAN.  Mr.  President,  suppose  then  that  the 
Commission  should  decide  that  further  evidence  should  be  considered, 
we  should  not  have  determined  one  thing  as  to  what  that  further  evi 
dence  should  be.  We  should  only  have  decided  that  evidence  beyond 
the  mere  face  of  the  papers  presented  by  the  President  of  the  Senate 
to  the  two  Houses  should  be  received,  but  we  should  not  have  ad 
vanced  one  single  step  toward  deciding  what  kind  of  evidence  should 
be  received.  Here  the  two  Houses  have  sent  this  inquiry  to  this  Com 
mission  with  all  the  powers  that  the  two  Houses  acting  separately  or 
together  possess,  and  obviously  on  that  bare  statement  the  question 
arises  what  powers  have  the  Houses;  what  may  the  Houses,  not  by 
main  force,  but  what  may  they  constitutionally  receive  as  testimony, 
and  that  question  is  for  us  to  decide,  for  whatever  they  may  constitu 
tionally  receive  as  testimony  in  deciding  this  question,  it  will  be  cer 
tainly  admitted  that  we,  having  their  powers,  may  receive.  And  that 
brings  up  the  question  suggested  by  the  counsel  who  last  spoke.  I 
think,  therefore,  while  I  am  perfectly  willing  that  this  question  shall 
be  argued,  and  indeed  it  ought  to  be  argued,  the  scope  of  the  argu 
ment  must  go  much  further  than  that  suggested  by  Mr.  Justice  MIL- 
LK.ii,  and  it  must  embrace  the  question  of  whether  or  not  we  are  to 
take  into  consideration  the  testimony  that  has  been  taken  by  either 
of  the  Houses,  and  also  the  question  what  further  testimony  may  be 
offered  here.  Therefore,  I  think  the  question  to  be  submitted  for 
argument  ought  not  to  be  narrowed  to  the  mere  question  of  whether 
we  can  go  beyond  the  face  of  the  papers  that  were  handed  in  and 
opened  by  the  President  of  the  Senate,  for  when  we  have  decided 
that,  if  it  be  decided  one  way  that  *wo  can  go  further,  we  have  not 
advanced  one  single  step  toward  deciding  what  we  can  receive,  and 
we  should  have  to  have  another  argument. 

Mr.  Commissioner  MILLER.  I  have  no  objection  to  the  argument 
taking  the  scope  that  the  Senator  suggests.  My  only  object  was  to 
give  ample  time  for  the  argument  of  this  proposition,  whatever  it  may 
be,  which  is  of  very  great  importance,  as  to  whether  any  evidence 
shall  be  received,  and  what  evidence.  Let  there  be  one  argument  to 
determine  it. 

The  PRESIDENT.  First  I  will  state  the  motion  as  made.  Judge 
MILLKR  moves  that  counsel  be  allowed  two  hours  on  each  side  to  dis 
cuss  the  question  whether  any  evidence  will  be  considered  by  the 
Commission  that  was  uot  submitted  by  the  President  of  the  Senate  to 
the  Houses  of  Congress. 

Mr.  Commissioner  MILLER.  I  am  willing  to  modify  the  motion  in 
accordance  with  the  suggestion  of  the  Senator  from  Ohio. 

Mr.  Commissioner  GARFIELD.  I  suggest  that  in  the  modification 
the  justice  so  enlarge  it  that  we  may  hear  from  the  counsel  on  the 
scope  of  our  powers  under  the  law.  It  seems  to  me  that  is  as  vital  as 
the  questioji  of  the  mere  rule  of  evidence  that  we  shall  adopt.  I  offer 
that  suggestion  to  the  justice. 

The  PRESIDENT.  I  will  state  the  question  as  soon  as  the  motion 
is  modified  by  the  mover,  and  then  it  will  be  open  to  amendment. 

Mr.  Commissioner  HOAR.  I  desire,  if  i  t  be  a  proper  time,  to  suggest 
a  substitute  for  the  motion  of  Judge  MILLKU. 

The  PRESIDENT.  As  soon  as  the  modified  motion  is  presented  to 
the  Chair,  you  will  have  an  opportunity.  The  motion  as  modified  is 
as  follows : 

That  counsel  be  allowed  two  hours  on  each  side  to  discuss  the 
question  whether  any  evidence  will  be  considered  by  the  Commission 
that  was  not  submitted  to  the  two  Houses  by  the  President  of  the 
Senate;  and  if  so,  what  evidence  can  properly  be  considered ;  and 
also  the  question  what  is  the  evidence  now  before  the  Commission. 

Mr.  Commissioner  HOAR.     I  will  read  what  I  had  drawn  up: 

That  counsel  be  now  heard  for  two  hours  on  each  side  upon  the 
effect  of  the  matters  laid  before  the  two  Houses  by  the  President  of 
the  Senate  and  of  the  offer  of  testimony  made  by  Mr.  O'Couor  and 
objected  to  by  Mr.  Evarts. 

The  PRESIDENT.    Do  you  offer  that  as  a  substitute  ? 

Mr.  Commissioner  HOAR.  Yes,  sir.  The  result  of  that  will  be  that 
if  the  effect  of  these  two  matters  were  to  require  us  to  go  into  further 
evidence  wo  should  say  that.  If  the  effect  were  a  final  and  total  de 
cision  of  the  whole  case,  we  should  also  say  that. 

Mr.  Commissioner EDMUN  DS.  Mr.  President,  I  wish  tosnggest  that 
it  appears  to  mo  that  the  proposition  of  Judge  MiLLERas  modified  at  the 
suggestion  of  Judge  THURMAN  covers  the  whole  ground.  There  are 
two  points  for  consideration.  The  first  is  whether  anybody,  the 
Houses  or  this  tribunal,  has  the  power  to  go  behind  the  formal  cer 
tification  of  the  State  authorities.  The  second  is,  if  so,  by  what 
species  of  evidence  and  inquiry  below  that  may  be  sustained  or  af 
fected.  It  is  claimed  by  Judge  Black  that  it  may  be  sustained  and 


ELECTORAL  COMMISSION. 


2.1. 


affected  by  evidence  in  the  natureof  testimony  taken  by  committees, 
&c.,  and  reported  to  either  of  the  Houses,  and  I  suppose  it  is  con 
tended  on  the  other  side  that  it  cannot  be.  Now  I  think  that  Judge 
MILLER'S  suggestion  covers  all  these  grounds,  and  I  suggest  to  my 
learned  friend  that  he  had  better  withdraw  his  amendment. 

Mr.  Commissioner  HOAR.  In  view  of  the  suggestions  made  by  the 
honorable  Senator,  I  will  withdraw  it.  I  do  not  think  there  is  much 
difference  practically  between  the  two. 

Mr.  Commissioner  FIELD.     I  renew  the  amendment. 

The  PRESIDENT.  Mr.  Justice  FIELD  renews  the  amendment  as  a 
substitute.  I  must  put  the  question  first  on  the  substitute.  Are  you 
ready  for  the  question  ? 

Mr.  Commissioner  BAYARD.    Please  let  it  be  stated  again. 

The  PRESIDENT.  The  amendment  offered  as  a  substitute  .reads 
as  follows : 

That  counsel  bo  now  hoard  for  two  hours  on  oach  side  on  the  effoot  of  the  mat 
ters  laid  before  the  two  Houses  by  the  President  of  the  Senate  and  of  the  offer  of 
testimony  made  by  Mr.  O'Conor  aud  objected  to  by  Mr.  Evarts. 

The  question  is  on  adopting  the  substitute.  • 

The  question  being  put,  it  was  determined  in  the  negative. 

The  PRESIDENT.  The  question  recurs  on  the  original  motion  of 
Mr.  Justice  Miller,  as  modified. 

The  motion  was  agreed  to. 

Mr.  EVARTS.  We  must  ask  the  instruction  of  the  Commission  as 
to  whether  there  is  also  an  allowance  of  the  division  of  this  labor 
between  two  counsel,  if  this  is  to  be  treated  as  interlocutory  argu 
ment. 

The  PRESIDENT.  Of  course  the  two  hours  can  be  divided  between 
counsel. 

Mr.  EVARTS.  Then,  if  you  will  allow  us  to  suggest  that  the  two 
hours  that  Mr.  Justice  MILLER'S  proposition  allowed  for  one  discussion 
is  now  extended  over  what  is  undoubtedly  very  much  additional  in 
area  and  consideration — I  speak  of  that  in  respect  to  time — so  that 
if  two  hours  was  thought  by  the  proposer  of  this  first  resolution  be 
fore  it  received  Mr.  Commissioner  THURMAN'S  modification  as  a  suit 
able  time  for  the  single  question 

The  PRESIDENT.  A  single  word,  Mr.  Evarts.  Notwithstanding 
the  resolution  is  adopted,  I  think  it  is  quite  in  order  for  you  to  ask 
for  additional  time. 

Mr.  EVARTS.  So  I  understand.  I  do  not  think  it  requires  any 
modification  for  that  purpose. 

The  PRESIDENT.  How  much  do  you  ask  in  addition  ?  Another 
hour? 

Mr.  EVARTS.     I  think  we  should  desire  another  hour  on  our  side. 

The  PRESIDENT.  The  usual  course  in  the  Supreme  Court  is,  if 
we  allow  it  on  one  side,  to  allow  it  to  both. 

Mr.  EVARTS.    Of  course. 

Mr.  Commissioner  EDMUNDS.  What  time  would  be  agreeable  to 
the  gentlemen  opposing  the  first  certificate? 

Mr.  O'CONOR.  We  shall  be  obliged  to  conform  to  the  view  of  the 
court,  as  a  matter  of  course. 

The  PRESIDENT.  Is  one  hour  additional  on  a  side  enough  ? 
[A  pause.]  Shall  an  additional  hour  be  allowed  on  each  side  ?  The 
Chair  will  submit  that  question  to  the  Commission. 

The  question,  being  put,  was  decided  affirmatively. 

The  PRESIDENT.  The  extension  of  time  is  allowed.  The  order 
of  speaking  will  be  that  indicated  yesterday,  unless  otherwise  in 
structed  by  the  Commission.  One  of  the  couusel  supporting  the  objec 
tions  to  certificate  No.  1  will  open.  Both  the  couusel  supporting  the 
objections  to  certificate  No.  2  will  follow.  Then  the  other  counsel 
supporting  the  objections  to  certificate  No.  1  will  close.  The  case  is 
before  you  under  the  motion  of  Mr.  Justice  MILLER  already  adopted 
by  the  Commission,  and,  if  the  counsel  are  ready,  the  Commission  is 
ready  to  hear  them. 

Mr.  O'CONOR.  As  this  view  has  been  presented  somewhat  sud 
denly,  we  are  a  little  embarrassed  about  the  array,  as  to  who  shall 
proceed  first. 

Mr.  Commissioner  BRADLEY.  I  have  no  doubt  the  court  will  take 
a  recess  of  half  an  hour,  if  you  desire  it,  before  commencing. 

The  PRESIDENT.     I  think  fifteen  minutes  would  be  sufficient. 

Mr.  EVARTS.  On  our  part,  if  the  Commission  please,  we  will  say 
that  this  introduces  a  very  important  and  principal  inquiry,  no  doubt, 
and  under  the  previous  intimations  that  these  questions  of  an  inter 
locutory  might  proceed  to  what  would  be  called  an  argument  on  the 
substantive  merits  of  the  case,  we  should,  if  it  is  at  all  conformable 
to  your  sense  of  duty,  prefer  not  to  go  on  until  a  day  is  given  us ;  but 
we  of  course  submit  that  simply  as  our  indication  of  what  we  regard 
our  duty. 

The  PRESIDENT.  Several  members  of  the  Commission  suggest  to 
me  that  we  take  a  recess  for  half  an  hour. 

Mr.  EVARTS.  Allow  me  to  ask  whether  any  hour  has  been  fixed 
as  the  purpose  or  habit  of  the  Commission  at  which  to  adjourn  daily. 

The  PRESIDENT.  Not  regularly.  I  am  still  under  the  direction 
of  the  Commission. 

Mr.  Commissioner  MILLER.  Allow  me  to  say,  Mr.  Evarts,  that  we 
seta  precedent  yesterday  by  refusing  to  the  objectors  themselves  half 
a  day  for  preparation.  This  Commission  is  of  opinion  that  it  cannot 
delay,  but  must  go  on  with  the  hearing  of  the  case.  It  is  willing, 
however,  to  take  a  short  recess  now. 

The  PRESIDENT.     It  seems  to  be  the  view  of  the  Commission  that 


it  will  now  take  a  recess  until  half  past  twelve  o'clock.    I  now  de 
clare  a  recess  till  that  time. 

The  Commission  (at  twelve  o'clock  noon)  accordingly  took  a  recess 
till  half  past  twelve  o'clock,  at  which  time  it  re-assembled  and  was 
again  called  to  order. 

The  PRESIDENT.  The  counsel  will  be  allowed  three  hours  on  each 
side  to  discuss  the  question  whether  any  evidence  will  be  considered 
by  the  Commission  that  was  not  submitted  to  the  two  Houses  by  the 
President  of  the  Senate,  and  if  so,  what  evidence  can  properly  be  con 
sidered;  and  also  the  question  what  is  the  evidence  now  before  the 
commission.  Counsel  representing  the  objectors  to  the  first  certificate 
will  now  be  heard. 

Mr.  EVARTS.  Mr.  President,  it  has  been  a  subject  of  consideration 
among  the  counsel,  aud  if  it  would  be  at  all  suitable  to  the  views  of 
the  Commission  that  one  counsel  on  each  side  should  be  heard  to-day, 
aud  that  we  should  have  until  Monday  for  the  replies  on  each  side,  or 
for  the  further  reply  on  our  side  and  the  final  reply  on  the  other,  we 
should  feel  that  we  were  able  to  present  the  matter  in  better  form. 

Mr.  Commissioner  BRADLEY.  Mr.  President,  I  move  that  that  be 
the  course  to  be  pursued. 

The  PRESIDENT.  Will  that  be  agreeable  to  the  other  side,  that 
one  counsel  on  each  side  only  be  heard  to-day  1 

Mr.  Commissioner  HOAR.  What  is  the  understanding  as  to  the 
length  of  time  that  one  counsel  on  each  side  will  occupy  ? 

The  PRESIDENT.  They  have  three  hours  on  a  side.  What  por 
tion  of  it  they  will  use  to-day,  I  do  not  know  ;  and  two  will  have  the 
right  to  reply  afterward. 

Mr.  Commissioner  IIUNTON.  Mr.  President,  would  not  that  allow 
the  counsel  who  address  the  Commission  to-day  to  address  them  for 
fifteen  minutes  each,  and  throw  the  whole  bulk  of  the  argument 
into  Monday? 

The  PRESIDENT.  They  are  to  occupy  half  the  time  to-day— make 
a  full  opening. 

Mr.  Commissioner  HUNTON.  It  is  satisfactory,  if  that  is  under 
stood. 

Mr.  Commissioner  TIIURMAN.  Let  it  be  understood  that  three 
hours  shall  be  consumed  in  the  argument  to-day ;  otherwise  there 
might  be  one  hour  or  half  an  hour  occupied  to-day  and  the  argument 
practically  put  off  until  Monday. 

The  PRESIDENT.  The  understanding  of  the  Chair  is  that  half  the 
time  is  to  be  occupied  to-day. 

Mr.  O'CONOR.  I  have  understood  from  the  beginning  of  this  case, 
aud  it  has  repeatedly  fallen  from  the  Chair,  that  the  two  counsel  as 
signed  to  speak  might  divide  the  time  between  themselves  as  they 
pleased. 

The  PRESIDENT.  That  is  subject  always  to  this  condition,  that 
there  shall  be  a  full  opening. 

Mr.  O'CONOR.  I  agree.  If  your  honors  please,  I  understand  that 
it  would  be  indecorous  and  unbecoming  and  unprofessional  not  to 
present  a  full  opening  in  the  commencing  argument ;  but  I  do  not 
perceive  that  it  would  be  expedient  to  lay  down  any  such  distinctive 
rule  as  that  the  counsel  speaking  must  speak  an  hour  and  a  half. 

The  PRESIDENT.  No;  that  is  not  it;  but  there  must  be  a  full 
opening. 

Mr.  O'CONOR.  It  is  as  fair  for  the  other  side  as  it  is  for  us.  I 
presume  it  is  very  possible  that  they  might  have  an  hour  apiece, 
about  as  much  as  was  necessary  for  the  opening  for  the  purposes  of 
the  argument ;  but  I  do  not  know  anything  about  it. 

Mr.  EVARTS.  We  understand  ourselves  to  be  subject  to  that  pro 
fessional  obligation,  here  as  well  as  elsewhere,  to  make  a  proper  di 
vision  of  the  matter  between  the  couusel ;  but  beyond  that  we  can 
hardly  agree. 

Mr.  Commissioner  EDMUNDS.    That  is  satisfactory. 

The  PRESIDENT.  That  is  entirely  satisfactory.  The  motion  is 
that  there  be  two  arguments  to-day,  one  on  each  side.  [Putting  the 
question.]  The  motion  is  carried. 

Mr.  BLACK.  Is  it  understood  that  three  counsel  may  speak,  pro 
vided  they  do  not  take  more  time  than  is  assigned  to  the  two  ? 

The  PRESIDENT.  There  has  been  no  request  of  that  sort,  and 
consequently  no  such  understanding.  Usually,  in  the  Supreme  Court, 
such  an  application  is  granted  on  the  condition  that  they  take  no 
more  time;  but  there  has  been  no  request  of  the  kind  offered. 

Mr.  EVARTS.     We  should  concur,  perhaps,  in  that  wish. 

Mr.  BLACK.  I  ask  the  court,  inasmuch  as  there  is  no  other  way 
under  the  heavens  by  which  we  can  do  what  your  honors  seem  to  re 
quire,  that  is,  make  a  full  opening  and  give  the  gentlemen  on  the 
other  side  full  notice  of  the  grounds  upon  which  we  sustain  our  side 
of  the  case,  to  permit  me  to  make  some  general  remarks  which  it  is 
desired  by  my  colleagues  that  I  should  make,  and  then  allow  Mr. 
Merrick  to  go  fully  into  the  details  of  the  case  by  way  of  opening  ; 
that  is,  let  us  splice  the  opening. 

Mr.  O'CONOR.  I  hope  I  may  be  allowed  to  say,  Mr.  President, 
that  your  direction  to  proceed  immediately  in  an  argument  which  ap 
pears  to  us  to  involve  essentially  the  whole  merits  has  rather  con 
fused  our  order  of  battle.  We  bow  to  it,  however,  most  respectfully  ; 
but  it  somewhat  embarrasses  us ;  aud  it  has  not  been  thought  that  it 
would  answer  any  useful  purpose  to  make  the  counsel  who  is  expected 
to  deliver  the  reply  to  also  deliver  an  opening.  It  would  be  clumsy 
and  inconvenient  in  a  great  many  respects  ;  and  we  have  had  some 
difficulty  in  arranging  so  as  to  present  a  fair  and  proper  argument 


ELECTORAL  COMMISSION. 


covering  the  whole  ground  to-day,  without  consuming  too  much  of 
our  three  hours.  It  appears  to  us  that  Judge  Black  and  Mr.  Merrick 
should  he  allowed  to  divide  the  time  that  we  consider  it  proper  to  oc 
cupy  to-day,  if  that  is  .agreeable  to  the  Commission. 

The  PRESIDENT.  I  will  submit  the  question  to  the  Commission  on 
the  condition  that  two  counsel  shall  speak  in  the  opening  and  that 
only  one  is  to  reply. 

Mr.  EVARTS.  Wo  shall  have  the  same  privilege  of  division,  I  pre 
sume. 

The  PRESIDENT.  Certainly.  [To  the  Commission.]  Shall  three 
counsel  he  allowed  to  speak  on  each  side  if  they  desire,  without  en 
larging  the  time  f  That  is  the  motion. 

The  motion  was  agreed  to. 

Mr.  MERRICK.  Mr.  President  and  gentlemen  of  the  Commission, 
the  order  passed  by  the  honorable  Commission  this  morning,  as  re 
marked  by  Mr.  O'Conor,  has  somewhat  changed  our  order  of  battle, 
and  we  are  compelled,  though  but  indifferently  prepared,  to  enter  upon 
the  discussion  of  the  grave  and  important  questions  which  you  have 
required  UH  to  argno.  We  came  into  court  expecting  to  proceed  regu 
larly  with  the  Florida  case  ;  and  believing  that  the  testimony  taken 
by  the  committees  of  the  Senate  and  House  of  Representatives  upon 
tliis  subject  was  regularly  before  the  Commission  as  testimony  in  the 
cast),  without  being  liable  to  any  objection  on  account  of  its  form 
ality,  supposed  that  its  effect  and  ultimate  admissibility  would  be 
considered  by  the  court  when  it  catne  finally  to  determine  the  main 
questions  involved  in  the  cause.  But  that  case  is  practically  sus 
pended  for  the  present,  and  the  counsel  are  required  to  argue  an  ab- 
Hlnict  proposition  of  law  submitted  by  the  Commission,  involving  an 
inquiry  into  the  general  powers  of  this  Commission  under  the  organic 
act,  and  as  to  what  evidence  is  now  before  you,  and  what  further 
evidence  it  may  be  competent  for  counsel  to  offer  and  introduce. 

First,  then,  may  it  please  your  honors,  as  to  the  powersof  the  Com 
mission.  The  law  of  the  United  States  under  which  this  Commis 
sion  has  been  established  and  organized  provides  as  follows,  in  regard 
to  electoral  certificates  from  States  which  have  sent  up  duplicate  or 
triplicate  certificates  and  to  any  of  which  objections  may  be  made  at 
the  time  such  certificates  are  opened  in  the  presence  of  the  two  Houses. 

When  all  such  objections  so  made  to  any  certificate,  vote,  or  paper  from  a  State 
shall  have  been  received  and  read,  all  such  certificates,  votes,  and  papers  so  ob- 
jected  to,  and  all  papers  accompanying  the  same,  together  with  such  objections, 
shall  be  forth  with  submitted  to  said  Commission,  which  shall  proceed  to  consider 
the  same,  witli  the  same  powers,  if  any,  now  possessed  for  that  purpose  by  the  two 
I  louse *s  :u-.tin<;  separately  or  together,  and,  by  a  majority  of  votes,  decide  whether 
any  and  what  votes  from  such  State-  are  the  votes  provided  for  by  the  Constitu 
tion  of  the  United  States,  and  how  many  and  what  persons  wore  duly  appointed 
elec.lors  in  such  State,  and  may  thereto  take  into  view  such  petitions,  depositions, 
and  other  papers,  if  any,  as  shall  by  the, Constitution  and  now  existing  law  bo 
competent  and  pertinent  ill  such  consideration. 

The  language  that  I  have  read  from  the  law  embraces  a  succinct 
and  clear  declaration  of  the  powers  of  this  Commission,  and  is  the 
only  part,  I  believe,  that  has  direct  reference  to  the  testimony  we  re 
gard  as  at  present  before  the  Commission.  As  to  the  formal  regularity 
of  the  evidence  that  is  already  before  you,  I  presume  there  can  be  no 
objection.  A  question  was  raised  in  each  of  the  two  Houses  of  Con 
gress  after  the  late  presidential  election,  early  in  their  session,  as  to 
what  votes,  if  any,  should  be  counted  from  the  States  of  Florida,  Lou 
isiana,  South  Carolina,  and  Oregon.  Upon  that  question  committees 
were  duly  appointed  under  the  authority  of  the  respective  Houses  to 
take  testimony.  In  reference  to  the  case  of  Florida,  the  committees 
from  the  two  Houses  respectively  proceeded  to  that  State  and  took  tes- 
timony  in  accordance  with  the  uniform  methods  and  custom  adopted 
by  committees  representing  Congress  and  discharging  duties  similar 
to  those  imposed  upon  these  committees.  That  testimony  having  been 
so  taken,  was  returned  to  the  two  Houses  of  Congress,  and  when  ob 
jection  was  made  to  the  counting  of  the  votes  from  that  State  at  the 
time  they  were  opened  by  the  President  of  the  Senate,  in  pursuance 
of  the  mandate  of  that  portion  of  the  law  to  which  I  have  referred, 
the  certificates  from  the  State  of  Florida,  being  three  in  number,  with 
the  papers  accompanying  those  certificates  and  the  objections  and  the 
evidence  that  had  been  taken  by  the  committees  of  the  House  in  ref 
erence  to  the  regularity  and  the  legality  of  the  vote  contained  in  1  heso 
certificates,  were  all  transmitted  to  this  Commission.  I  respectfully 
submit  that  this  evidence  so  transmitted  is  now  before  this  Commis 
sion  and  properly  in  the  cause.  Wherever  either  House  of  Congress 
has  assumed  to  exercise  the  power  of  instituting  an  inquiry  into  a  dis 
puted  fact,  it  has  uniformly  appointed  special  committees 'or  invested 
standing  committees  with  authority  to  summon  witnesses  and  take 
testimony  in  regard  to  that  fact ;  and  in  this  case  each  of  the  two 
Houses  appointed  its  committee  to  take  testimony  upon  the  issue 
raised  in  reference  to  the  electoral  vote  of  Florida.  That  testimony 
was  regularly  returned  to  the  two  Houses,  that  were  to  act  upon  that 
vote  under  the  Constitution  of  the  United  States,  and  such  as  was 
taken  by  the  committee  of  the  House  has  been  transmitted  by  the 
Houses  in  joint  session  to  this  Commission,  which  possesses  and  is  to 
exercise  all  the  power  of  the  two  Houses,  or  either  of  them,  in  the 
premises. 

I  therefore  presume,  may  it  please  your  honors,  that  there  can  be 
no  question  in  reference  to  the  regularity  of  that  testimony,  what 
ever  question  may  be  raised  in  reference  to  its  admissibility,  under 
the  issues  you  are  to  try  and  in  reference  to  its  effect  upon  those 
issues.  I  speak  now  of  the  mass  of  testimony  generally  that  was 


laid  upon  this  table,  and  respectfully  submit  that  it  is  now  before  the 
Commission,  and,  so  far  as  I  am  advised,  there  is  no  other  evidence, 
with  the  exception,  possibly,  of  some  relating  to  the  particular  hour 
of  the  day  at  which  the  writ  of  quo  warranto  was  served  upon  what 
have  been  called  the  Hayes  electors;  and  with  that  exception,  as 
stated  in  the  paper  read  by  Mr.  O'Conor  this  morning,  I  believe  there 
is  no  question  upon  which  the  counsel  for  the  objectors  propose  to 
offer  any  extrinsic  evidence  whatever. 

This  evidence  which  has  thus  been  sent  to  the  Commission  by  the 
two  Houses  is  of  two  separate  and  distinct  characters.  First,  there 
is  the  evidence  that  was  inclosed  in  the  certificates  returned  from 
the  State  of  Florida.  There  were,  as  I  have  stated,  three  certifi 
cates  ;  the  first  certificate  being  that  of  the  Hayes  electors,  accompa 
nied*  by  the  certificate  of  the  governor  of  Florida  given  to  those  elect 
ors.  The  second  certificate  was  accompanied  by  the  certificate  of  the 
attorney-general  of  Florida ;  and  the  third  was  accompanied  by  cer 
tain  judicial  records,  which,  under  the  express  language  of  the  organic 
act,  were  referred  to  this  body  for  their  consideration. 

The  other  testimony  to  which  I  have  already  referred  was  extrinsic 
evidence,  taken  by  the  committee  acting  under  the  authority  and  in 
obedience  to  the  mandate  of  the  House  of  Representatives. 

And  I  may  remark  that  when  the  House  committee  took  this  testi 
mony  there  was  full  opportunity  given  to  all  parties  interested  in 
the  result  of  the  inquiry  to  summon  whatever  witnesses  they  might 
desire  to  have  examined  and  to  cross-examine  all  that  were  brought 
forward.  The  examination-in-chief  was  taken  with  the  regularity  of 
all  the  rules  of  evidence,  and  cross-examination  was  permitted  with 
the  broadest  latitude  those  rulos  allow.  And  if  we  were  required 
to  repeat  the  experience  of  that  committee  under  the  authority  of 
this  Commission  and  retake  that  evidence,  there  could  probably  be  no 
witness  summoned  who  was  not  before  the  committee,  possibly  no 
question  propounded  that  was  not  propounded  by  some  of  the  mem 
bers  of  that  committee,  and  no  cross-interrogatory  propounded  that 
was  not  propounded  and  the  answer  to  which  is  not  now  before  this 
honorable  tribunal. 

But  as  this  Commission  is  invested  with  all  the  powers  of  Congress, 
under  the  law,  the  question  recurs  upon  the  materiality  and  admis 
sibility  of  the  evidence  without'regard  to  its  form,  and  this  brings 
me  to  the  inquiry  as  to  what  are  its  powers.  I  owe  your  honors  an 
apology  for  undertaking  to  argue  so  important  a  subject,  for  I  did 
not  come  into  court  prepared  to  perform  that  duty  and  in  assuming 
to  discharge  it  now  I  am  submitting  myself  to  that  subordination  that 
prevails- in  the  profession  find  obey  the  orders  of  my  senior  counsel. 

It  was  said  in  the  opening  statement  made  by  the  objectors  upon 
the  other  side  that  this  Commission  possessed  no  other  than  simply 
a  power  to  perform  a  ministerial  duty  ;  that  it  possessed  no  other 
than  a  power  to  enumerate  the  votes  ;  that  the  certificate  of  the  gov 
ernor  of  the  State  was  final  and  conclusive,  and  there  was  no  authority 
in  this  Commission,  whatever  might  be  the  proof,  to  correct  that  cer 
tificate  for  mistake  or  vacate  it  for  fraud.  They  told  you  that  it  im 
ported  absolute  verity  beyond  the  reach  of  any  evidence,  however 
strong  and  however  conclusive,  and  beyond  the  reach  of  the  power 
of  the  State  itself  either  to  correct,  modify,  or  annul  it ;  and  carrying 
out  the  position  assumed  by  the  objectors  on  the  other  side,  it  would 
follow  that  if,  in  reference  to  the  certificate  of  Governor  Stearns,  Gov 
ernor  Stearns  himself  had  subsequent  to  the  date  of  that  certificate 
come  before  the  two  Houses  of  Congress  in  sackcloth  and  ashes,  beg 
ging  on  behalf  of  his  State  to  have  some  error  in  that  certificate  cor 
rected,  it  could  not  be  done.  If  he  had  come  with  penitential  sorrow, 
confessing  himself  to  have  been  guilty  of  any  fraud,  however  enor 
mous — I  am  merely  supposing  a  case — and  made  it  patent  that  that 
certificate  was  the  representative  of  a  falsehood  and  a  fraud,  and  not 
of  truth,  yet  the  certificate  was  beyond  reach  of  the  truth  and  that 
it  was  necessary  to  crystallize  its  falsehood  into  a  practical  fact. 

May  it  please  your  honors,  in  view  of  that  position  upon  the  other 
side,  as  well  as  in  taking  appropriate  positions  in  the  opening  of  this 
argument,  it  becomes  necessary  to  look  at  that  paper  and  see  what  it 
is,  and  whence  it  derives  this  extraordinary  sanctity  ;  infinitely  holy, 
beyond  any  judicial  record,  and  beyond  any  record  that  can  be  made 
between  nations  in  their  most  solemn  compacts.  By  the  act  of  Con 
gress,  section  13(5  of  the  Revised  Statutes,  it  is  provided  as  follows  : 

It  shall  be  the  duty  of  the  executive  of  each  State  to  cause  three  lists  of  the 
names  of  the  electors  of  such  State  to  be  made  and  certified,  and  to  be  delivered  to 
the  electors  on  or  before  the  day  on  which  they  are  required  by  the  preceding  sec 
tion  to  meet. 

There  is  nothing  in  this  section  declaring  that  the  certificate  to 
which  it  refers  shall  be  conclusive  evidence  of  anything.  There  is 
nothing  in  this  section  declaring  in  words  as  to  what  particular  fact 
that  certificate  shall  be  directed.  There  is  nothing  in  this  section 
making  it  mandatory  upon  the  governor  to  issue  that  certificate  ;  and 
if  there  had  been  it  would  have  been  something  transcending  the 
powers  of  Congress  under  the  Constitution  to  put  there,  for  Congress 
could  not  reach  the  executive  of  a  State  by  any  enactment  as  to  his 
official  duty.  It  was  not  within  the  power  of  Congress  to  make  it 
mandatory  upon  the  governor  to  issue  that  certificate  ;  and  if  it  was 
not  within  the  power  of  Congress  to  make  it  mandatory  upon  the 
executive  of  a  State  to  issue  that  certificate,  can  it  be  possible  that  it 
was  within  the  power  of  Congress  to  say  that  the  certificate  if  issued 
should  be  conclusive,  or  that  if  the  certificate  should  be  necessary 
evidence  in  the  absence  of  which  the  electoral  vote  should  not  be 


ELECTORAL  COMMISSION. 


counted?  Congress  could  not  have  required  the  executive  to  issue 
the  certificate,  and  could  not  have  declared  that  the  certificate  should 
be  the  conclusive  and  only  evidence  of  the  election  of  the  electors  of 
the  several  States,  because  in  addition  to  what  I  have  already  sub 
mitted,  the  Constitution  of  the  United  States  itself  provides  for  the 
authentication  of  those  electors,  aud  that  requirement  is  for  an  authen 
tication  from  themselves  ;  and  if  Congress  superadds  to  that  authen 
tication  an  additional  authentication  which  it  makes  a  condition- 
precedent  to  counting  the  vote,  it  would  be  an  act  in  violation  of 
that  provision  of  the  Constitution,  as  well  as  in  contravention  of  the 
relations  of  the  Federal  to  the  State  government.  I  do  not  question 
the  power  of  Congress  to  require  authentication  and  to  specify  what 
ever  manner  of  authentication  it  desires  in  order  to  relieve  any  diffi 
culty  in  determining  who  are  the  agents  appointed  by  the  State  to 
cast  its  electoral  vote  ;  but  the  power  that  I  deny  to  exist  is  the  power 
to  specify  some  authentication  as  an  absolute  condition-precedent  to 
counting  the  vote,  and  to  declare  that  in  the  absence  of  that  authenti 
cation  so  required  by  Congress  the  electoral  vote  shall  not  be  counted 
at  all. 

Recurring  to  that  section  of  the  law  in  the  Revised  Statutes  which 
I  have  read,  I  respectfully  submit,  as  a  proposition  of  law,  that  where 
certificates  are  required  as  matters  of  evidence,  or  where  the  law  spe 
cifies  evidence  of  auy  kind  going  to  a  particular  fact  with  which  the 
law  so  specifying  the  evidence  is  dealing,  that  such  evidence  is  never 
regarded  in  any  court  of  law  as  conclusive  beyond  the  power  of  re 
buttal,  unless  the  law  specially -provides  that  it  shall  be  conclusive. 
Where  the  law  says  that  such  anil  such  a  paper  or  fact  shall  be  evi 
dence  of  a  certain  conclusion,  that  fact  and  that  paper  so  specified 
as  evidence  of  that  conclusion  are  never  beyond  the  power  of  rebuttal, 
unless  the  law  has  declared  in  specific  terms  that  it  shall  be  the  only 
evidence  and  shall  be  unimpeachable. 

I  have  referred  to  that  clause  of  the  Constitution  which  requires 
the  electors  to  certify  to  their  own  appointment,  aud  the  manner  in 
which  they  have  executed  their  office ;  and  I  submit  iu  this  connec 
tion  that  it  is  not  within  the  power  of  Congress  to  tie  its  hands  so 
that  it  can  never  inquire  into  the  truth  of  the  due  appointment  of 
the  electors  and  the  electoral  vote.  It  is  not  within  the  power  of 
Congress  to  estop  the  two  Houses  from  ascertaining  what  is  the  true 
vote.  The  language  of  the  article  referred  to  requires  the  return  of 
the  vote  by  the  electors,  requires  them  to  name  in  their  ballots  the 
persons  voted  for  as  President  aud  Vice-President,  to  make  distinct 
lists,  to  return  the  certificate  of  their  vote  to  the  President  of  the 
Senate,  and  then  it  proceeds  as  follows : 

The  President  of  the  Senate  shall,  in  the  presence  of  the  Senate  and  Honse  of 
.Representatives,  open  all  the  certificates,  and  the  votes  .shall  then  be  counted. 

The  learned  objectors  upon  the  other  side  stated  yesterday  that 
the  word  "  counted "  was  the  controlling  word  in  the  sentence,  and 
that  giving  that  word  its  proper  and  only  signification,  the  clause  that 
I  have  read  conferred  no  other  power  upon  the  two  Houses  of  Con 
gress  than  the  power  of  enumeration.  I  respectfully  submit  that  the 
controlling  word  in  that  sentence  is  "  rotes" — "  the  votes  shall  then  be 
counted" — and  that  the  word  "votes"  controls  the  word  "counted;" 
aud  when  you  refer  to  the  word  "counted"  you  have  to  go  back  and 
see  what  it  is  that  yon  are  required  to  count.  What  is  it,  may  it 
please  your  honors,  that  is  to  be  counted  I  It  is  "  the  votes,"  and  if 
those  votes  are  cast  by  persons  not  duly  appointed  electors  under  the 
law  of  the  State  they  are  not  votes,  and  when  you  count  them  you 
count  something  the  Constitution  did  not  authorize  you  to  count. 
Therefore  in  executing  your  duties  under  this  clause  you  must,  be 
fore  you  count,  ascertain  what  are  votes.  Having  ascertained  what 
are  votes,  yon  count  those  votes,  throwing  aside  whatever  ballots  you 
shall  find  that  are  not  votes.  Under  this  article  of  the  Constitution, 
and  this  particular  clause  of  the  article,  I  respectfully  submit  that 
tnere  is  in  the  two  Houses  of  Congress  a  power  to  determine  what 
are  votes. 

Then  the  question  arises  as  to  how  far  you  shall  go  in  taking  testi 
mony  to  determine  what  are  votes  ;  but  as  preliminary  to  that  ques 
tion  I  beg  leave  to  add  that  if  the  Constitution  has  devolved  upon 
the  two  Houses  of  Congress  the  duty  of  counting  the  votes,  the  true 
votes,  and  the  necessary  power  of  determining  what  are  the  true 
votes,  Congress  possesses  no  power  to  say  what  shall  be  conclusive 
and  unimpeachable  evidence  of  those  votes ;  but  in  the  performance 
of  their  high  function  the  two  Houses  must  ascertain  what  are  the 
true  votes,  without  any  limitation  placed  upon  them  by  Congress, 
and  without  being  so  restrained  that  they  cannot  go  into  the  inquiry 
as  to  the  truth.  Congress  may  prescribe  modes  of  authentication, 
but  merely  modes  of  authentication  as  aids  and  not  as  conclusive  evi 
dence  or  restraints  upon  the  Houses  in  their  action.  We  therefore 
submit  that  any  legitimate  evidence  going  to  determine  what  are  the 
true  votes  is  proper  and  competent  evidence  before  this  tribunal. 

And,  may  it  please  your  honors,  upon  the  question  of  whether  you  can 
go  behind  the  certificate  of  the  executive  of  the  State  and  whether 
the  certificate  is  conclusive  or  not  upon  Congress,  I  beg  to  refer  you 
to  a  high  and  most  responsible  authority,  an  authority  that  has  'the 
sanction  of  some  of  the  most  distinguished  names  that  now  adorn  the 
passing  history  of  the  Republic.  In  1873  the  question  came  before 
Congress  as  to  the  counting  of  the  Louisiana  vote.  The  electors  met ; 
they  voted ;  they  sent  up  to  the  President  of  the  Senate  the  certificate 
required  by  the  twelfth  article  of  amendments  to  the  Constitution, 
stating  for  whom  they  had  voted,  and  inclosed  in  that  certificate  so 


sent  up  the  certificate  of  the  recognized  governor  of  Louisiana  certi 
fying  to  their  due  appointment:  and  all  their  proceedings  were  re^- 
ular  on  their  face  from  beginning  to  end.  There  was  no  objection 
made,  and  none  intimated,  to  those  proceedings,  because  of  their  non 
conformity  to  the  statutes  of  the  United  States.  When  that  vote  was 
opened,  objection  was  made  to  it;  but  prior  to  the  time  when  the 
vote  was  opened,  it  was  understood  that  there  was  some  difficulty  in 
reference  to  that  vote,  of  some  kind  or  other.  The  Senate  of  the 
United  States  directed  its  Committee  on  Privileges  and  Elections  to 
inquire  into  the  circumstances  attending  the  election  of  the  electors 
of  that  State.  That  committee  went  into  the  inquiry;  it  examined 
witnesses,  and  they  were  also  cross-examined.  All  the  facts  that 
were  needed  and  desired  lying  behind  that  certificate  were  gone  into 
fully  by  that  committee.  Having  gone  into  all  those  facts,  they 
made  their  report  to  the  Senate.  In  that  report,  made  February  l(i, 
1873,  (which  is  to  be  found  on  page  1218  of  the  Congressional  Globe) 
part  2,  third  session  of  the  Forty-second  Congress,)  the  chairman  of 
the'  committee,  one  of  the  honorable  Commissioners  whom  I  have  now 
the  privilege  of  addressing,  states  as  follows : 

If  Congress  chooses  to  go  behind  the  governor's  certificate,  and  Inquire  who  had 
been  cho.sen  as  electors,  it  is  not  violating  any  principle  of  the  right  of  the  Status 


of  electors,  from  the  various  parishes  of  Louisiana,  had  never  been  counted  by 
anybody  having  authority  to  couut  them. 

In  the  conclusion  of  the  report  Senator  MORTON  says : 
"Whether  it  is  competent  for  the  two  Houses,  nnder  the  twenty  second  joint  rule, 
(in  regard  to  the  constitutionality  of  which  the  committee  here  give  no  opinion,) 
to  go  behind  the  certificate  of  the  governor  of  the  State,  to  inquire  whether  the 
votes  for  deeton  have  ever  been  counted  by  the  legal  returning  board  created 
by  the  law  of  the  State,  or  whether,  in  making  such  count,  the  board  had  before 
tin-in  the  oflicial  returns,  the  committee  ofier  no  suggestions,  but  present  only  a 
statement  of  the  facts  as  they  understand  Minn. 

Now  in  reference  to  the  power  of  the  joint  rule  of  the  two  Houses, 
it  is  proper  before  I  proceed  further  that  I  should  make  a  single  re 
mark.  That  joint  rule  could  give  to  the  two  Houses  no  power  they 
did  not  possess  under  the  Constitution.  It  could  neither  enlarge  nor 
abridge  their  constitutional  powers.  It  in  beyond  the  authority  of  Con 
gress  or  of  any  other  tribunal  to  enlarge  or  abridge  the  powers  with 
which  the  Constitution  has  vested  that  body.  A  joint  rule  might 
formulate  that  power;  a  joint  rule  might  indicate  the  manner  in 
which  that  power  should  be  exercised;  a  joint  rule  might  prescribe 
the  methods  of  proceeding  in  the  execution  of  the  power ;  but  it  could 
neither  give  power  or  diminish  power.  In  this  report  the  only  ob 
jection  made  to  the  vote  of  Louisiana  is  that  the  returns  for  electors 
in  that  State  had  never  been  canvassed  or  counted.  It  was  conceded 
that  the  certificate  of  the  governor  was  regular,  perfectly  regular  on 
its  face ;  and  the  honorable  chairman  of  the  committee  after  stating 
those  facts  says  that  he  declines  to  make  any  suggestion  to  Congress 
as  to  what  disposition  ought  to  be  made  of  the  vote. 

May  it  please  your  honors,  the  evidence  taken  by  that  committee 
was  before  the  two  Houses  of  Congress  when  they  met  to  count  the 
vote  four  years  ago.  The  intimation  of  the  objection  in  the  report 
was  before  those  two  Houses,  and  that  intimation  found  shape  and 
substance  and  form  in  a  motion  made-by  the  Senator  from  Wiscon 
sin,  that  the  vote  of  Louisiana  should  not  be  counted.  I  am  aware 
that  that  Senator  at  the  time  maintained  that  Louisiana  was  not  a 
State  bearing  such  relation  to  the  Federal  Union  as  authorized  her  to 
participate  in  the  election  of  a  Chief  Magistrate,  but  iu  that  position 
it  is  a  well-known  political  and  historical  fact  that  few  or  none  of  the 
Senators  sympathized.  He  made  his  motion,  stating  different  grounds 
for  the  motion,  but  the  only  ground  before  the  Senate,  conceding  that 
Louisiana  was  a  State  and  could  participate  in  that  election,  the  only 
ground  before  the  two  Houses  of  Congress  upon  which  her  vote  could 
be  excluded  by  any  possibility  or  under  the  process  of  any  sophistry 
or  logic,  was  that,  although  the  certificate  of  the  governor  to  the 
election  of  the  electors  was  regular  in  form,  yet  the  return  lying  be 
hind  that  certificate  and  upon  which  that  certificate  purported  to  be 
founded  had  never  been  canvassed.  The  question  came  up  for  deter 
mination  in  the  Senate  on  the  12th  day  of  February,  1873,  (as  will  be 
seen  by  reference  to  page  1293  of  the  same  volume,)  and  it  was  voted ' 
upon.  Mr.  Carpenter's  resolution  that  the  vote  should  not  be  counted 
was  determined  in  the  affirmative  and  the  vote  was  not  counted. 

Mr.  Commissioner  EDMUNDS.  Have  you  there,  and  will  you  read, 
the  resolution  adopted  by  the  Senate  on  that  occasion  ? 

Mr.  MERRICK.  The  only  one  I  have  been  able  to  find  is  Mr.  Car 
penter's  resolution  "that  the  votes  should  not  be  counted."  He  ob 
jected  to  the  vote  stating  various  grounds,  but  the  only  resolution  I 
have  been  able  to  find  is  a  simple  resolution  that  the  vote  of  Louisi 
ana  should  not  be  counted. 

Mr.  Commissioner  EDMUNDS.  Without  stating  in  terms  the  grounds 
on  which  it  proceeded  I 

Mr.  MERRICK.     Yes,  sir ;  I  indicated  that. 

Mr.  Commissioner  EDMUNDS.  I  was  only  inquiring  for  informa 
tion. 

Mr.  MERRICK.  But  I  supplemented  the  indication  by  this  further 
statement:  that  there  was  no  grouud  before  the  Senate  upon  which 
the  vote  could  have  been  excluded,  as  far  as  I  can  ascertain  from  the 
record,  except  that  the  vote  for  electors  had  not  been  canvassed.  If 
there  is  any  other  ground  stated  in  the  report  of  the  committee  I  have 


ELECTORAL  COMMISSION. 


been  unable  to  find  it.  Mr.  Carpenter  entertained  a  different  opinion 
from  nearly  every  Senator  as  to  the  peculiar  relations  of  Louisiana  to 
the  Federal  Union.  Ho  may  have  voted  upon  that  ground;  but  I 
believe  that  no  other  Senator  or  not  more  than  one  or  two  shared  his 
opinion.  I  believe  his  honor  who  made  the  inquiry  of  mo  voted  in 
the  affirmative  on  the  resolution  that  the  vote  should  not  be  counted. 

Now,  may  it  please  your  honors,  I  refer  to  this  precedent  as  au 
thority  for  two  propositions:  First,  that  the  testimony  taken  by  a 
committee  of  either  of  the  Houses  inquiring  into  the  regularity  and 
legality  of  an  electoral  vote  is  competent  testimony  to  be  consid 
ered  when  the  question  arises  as  to  what  disposition  you  shall  make 
of  that  vote ;  secondly,  that  it  is  competent  for  Congress,  under  the 
Constitution  of  the  United  States,  to  go  behind  the  certificate  of  the 
governor  and  throw  out  a  vote  where  the  testimony  proves  that  that 
certificate  does  not  properly  indicate  the  wishes  of  the  people  in  the 
individuals  that  certificate  designates  as  the  agents  of  the  State,  and 
(hose  facts  being  established,  it  is  competent  to  discard  the  vote. 

But,  may  it  please  your  honors,  in  the  case  of  the  State  of  Florida 
we  shall  not  ask  for  evidence  going  behind  the  certificate.  This  case 
presents  itself  to  the  court  in  a  peculiar  aspect.  The  evidence  which 
we  shall  offer  and  which  we  claim  to  bo  admissible  as  to  that  State 
is  evidence  furnished  by  the  State  herself  as  indicated  in  the  propo 
sition  read  by  the  distinguished  gentleman  with  whom  I  have  the 
honor  to  be  associated,  [Mr.  O'Conor.] 

Two  propositions  as  to  evidence,  then,  come  before  your  honors. 

First,  whether  the  United  States  through  its  Congress  or  either  or 
both  Ilouses  of  Congress  can,  in  reference  to  an  electoral  vote,  insti 
tute  an  original  inquiry  itself  and  by  a  committee  of  either  House 
take  testimony  going  behind  the  certificate  of  the  State  and  inval 
idate  that  certificate  on  its  own  motion,  when  the  State  still  adheres 
to  the  regularity  of  that  certificate.  That  is  one  question,  a  very  im 
portant  one;  but  there  is  another  totally  different  from  that. 

Second,  whether  when  the  Houses  of  the  Congress  of  the  United 
States  come  to  inquire  into  the  electoral  vote  and  ascertain  which 
vote  shall  be  counted,  it  is  competent  for  them  to  receive  evidence 
furnished  by  the  State  herself  in  reference  to  the  certificate  her  gov 
ernor  may  have  given. 

Your  honors  perceive  at  once  the  wide  difference  in  the  two  cases, 
and  I  respectfully  submit  in  connection  with  that  proposition  that  if 
the  power  does  not  exist  in  the  two  Houses  of  Congress  as  a  primary 
and  original  power  separately  to  take  testimony  going  behind  the 
certificate,  then  it  must  exist  in  the  State  to  correct  its  own  certificate 
or  impeach  it  for  fraud  or  falsehood;  or  else  we  may  be  inevitably 
tied  to  an  accident  or  mistake,  and  a  presidential  election  may 
turn  upon  a  certificate  which  is  known  to  all  the  world  to  be  an  acci 
dent,  a  falsehood,  or  a  fraud,  which  can  neither  be  impeached  by  the 
State  that  gave  it  because  of  fraud,  accident,  or  mistake  nor  inter 
fered  with  in  any  way  by  the  Federal  Government  to  which  it  is 
addressed,  but  must  be  a  substantial  and  perpetual  truth  iii  the 
presence  of  convincing  evidence  that  it  is  an  active  and  living  lie. 

In  the  case  of  the  State  of  Florida,  taking  up  the  second  proposi 
tion,  the  State  herself,  after  the  meeting  of  the  electors,  ascertaining 
that  this  certificate  given  by  Governor  Stearns  was  given  either  in 
mistake  or  fraud,  and  founded  upon  an  irregular  and  illegal  canvass 
of  the  votes  according  to  the  laws  of  Florida,  by  her  Legislature 
passed  a  law  directing  another  canvass  to  be  made.  But  she  did  not 
pass  that  law,  even,  until  she  had  appealed  to  her  judicial  tribunals  to 
interpret  the  laws  previously  existing  and  relating  to  the  subject. 
Having  appealed  to  those  tribunals  to  interpret  these  laws,  and  in 
the  mandamus  case  having  received  from  her  tribunal  of  last  resort 
an  opinion  giving  construction  to  those  previously  existing  laws,  by 
which  opinion  it  became  apparent  that  the  returning  board  had 
transcended  its  legal  duties  and  jurisdiction  and  made  a  return  which 
was  erroneous  under  the  law,  her  Legislature  then,  on  the  basis  of 
that  opinion,  directed  another  canvass  of  the  vote  to  be  made  in  ac 
cordance  with  the  judicial  construction  of  the  law.  When  that  can 
vass  was  made  and  returned  to  the  Legislature  her  Legislature  passed 
another  act  on  the  basis  of  that  canvass,  declaring  that  the  parties 
to  whom  the  certificate  had  been  issued  by  Governor  Stearns  had  not 
been  appointed,  and  designating  the  persons  who  had  boon  chosen  as 
the  agents  of  the  State  to  speak  her  voice  in  the  electoral  college. 
But  she  has  gone  further.  A  quo  warranto  was  issued  against  these 
parties  who  assumed  to  exercise  the  electoral  office  under  the  certifi 
cate  granted  by  Governor  Stearns,  and  that  quo  warranto  having  come 
before,  her  judicial  tribunals,  they,  in  the  exercise  of  a  jurisdiction 
given  to  them  by  the  State  laws  of  Florida,  decided  that  the  men 
who  had  received  that  certificate  were  not  elected,  but  that  other 
men  were  elected  ;  and  those  other  men  so  elected  received  a  certifi 
cate  from  the  governor  of  Florida,  and  in  the  execution  of  the  office 
/o  which  they  had  been  appointed  by  the  people  in  the  previous  No 
vember  discharged  their  duties  as  electors  and  voted  on  the  day  des 
ignated  by  the  law  of  the  United  States. 

Now,  then,  may  it  please  your  honors,  you  have  from  that  State 
this  evidence,  evidence  from  her  Legislature,  evidence  from  her  ex 
ecutive,  evidence  from  her  judicial  tribunals,  that  the  electors  to  whose 
vote  we  object  were  not  the  duly  appointed  electors  of  Florida ;  and 
through  all  the  departments  of  her  government  Florida  therefore 
comes  to  the  United  States  Congress  and  begs  that  you  (for  you  now 
exercise  that  power  and  it  is  vested  in  you)  will  protect  her  people 
from  the  enormity  of  having  their  voice  eimilated  by  parties  never 


appointed  to  speak  in  her  behalf.  Is  not  that  competent  evidence  to 
go  before  the  Houses  of  Congress  ?  If  it  is  not,  and  if  Congress  itself 
cannot  in  the  exercise  of  its  original  power  go  forward  and  inquire 
into  the  manner  and  due  election  of  these  electors,  then  you  have 
placed  the  whole  government  and  administration  of  the  United  States 
in  the  power  of  any  executive  who  may  issue  his  certificate  to  a  party 
never  voted  for  at  all,  while  the  unanimous  vote  of  the  State  may 
have  been  in  favor  of  another  party.  You  may  take  the  whole  popu 
lation  of  Florida,  and  although  they  may  never  have  voted  for  A  and 
B  at  all,  and  though  the  vote  may  have  been  unanimous  in  favor  of 
other  parties,  if  the  governor  chooses  to  issue  his  certificate  to  A  and 
B  that  certificate  becomes  binding  upon  Congress  and  may  cast  a 
presidential  election.  If  this  be  the  law,  may  it  please  your  honors, 
then  who  will  deliver  us  from  1he  body  of  this  death  f  It  is  beyond  the 
power  of  Congress  to  grant  relief;  it  is  beyond  the  power  of  this  tri 
bunal. 

J  find  that  I  have  consumed,  may  it  please  your  honors,  more  than 
the  time  allotted  rue. 

The  PRESIDENT.     Fifty  minutes  you  have  occupied. 

Mr.  BLACK.  Mr.  President  and  gentlemen  of  the  Commission,  the 
time  allowed  for  the  opening  of  this  argument  on  our  side  is  nearly 
consumed.  1  do  not  presume  to  do  more  than  merely  supplement  or 
enforce  by  a  few  general  propositions  Mr.  Merrick's  admirable  state 
ment  of  our  case,  which  is  as  well  calculated  to  impress  the  true 
nature  of  it  on  the  minds  of  this  court  and  to  give  a  full  notice  to 
the  gentlemen  on  the  other  side  of  what  we  intend  to  rely  upon  as 
anything  that  could  possibly  have  beeneaid.  I  am  only  "  gilding  re 
fined  gold"  when  I  attempt  to  add  anything  to  it. 

You  have  before  you  the  question  whether  this  case  is  to  be  decided 
by  you  upon  the  evidence  taken  for  the  purpose  of  enabling  the  Sen 
ate  and  House  of  Representatives  to  do  the  duty  which  the  Consti 
tution  cast  upon  them  of  counting  the  votes  and  of  seeing  that  votes 
only  were  counted.  For  all  the  reasons  that  I  gave  this  morning, 
and  for  many  other  reasons  which  I  might  add  if  I  had  time,  I  insist 
upon  it  that  the  evidence  being  once  reported  and  filed  in  the  cause 
is  to  be  treated  as  a  court  of  equity  treats  evidence  in  the  same  con 
dition.  You  may  throw  it  out ;  you  are  not  required  to  give  it,  be 
cause  you  have  admitted  it,  any  particular  amount  of  force  or  weight 
or  value  in  your  final  judgment ;  but  you  are  to  look  at  it  and  deter 
mine  the  case  upon  all  that  is  in  it.  And  I  can  give  you  an  assurance, 
founded  upon  some  little  experience,  that  a  judge  never  decides  upon 
any  subject  much  the  worse  for  knowing  a  little  about  it  before  he 
does  decide.  This  notion  of  determining  the  whole  case  upon  an  offer 
to  admit  evidence  is  a  thing  that  you  have  got  to  forget.  It  is  im 
pressed  upon  those  who  practice  the  common  law  very  strongly  by 
that  peculiar  and  anomalous  system  that  is  adopted  in  the  common  - 
law  courts  upon  jury  trials.  It  is  not  natural ;  it  does  not  belong  to 
any  other  kind  of  tribunal.  If  there'  be  any  evidence  here  which 
coines  through  illegal  channels,  or  if  it  comes  from  an  improper  source, 
let  them  move  to  suppress  it.  But  being  in  already  and  therefore 
part  of  the  case  now,  you  cannot  ask  us  to  offer  it  over  again. 

I  need  not  certainly  produce  Chitty's  Pleading,  and  Daniell's  Chan 
cery  Practice,  or  Starkie  on  Evidence,  or  any  of  the  rest  of  the  books 
in  which  these  rules  are  laid  down.  I  need  not  show  you  what  is  the 
code  of  procedure  in  courts  of  admiralty  and  courts  of  equity  ;  for  I 
take  it  for  granted  that  these  are  things  on  which  I  may  speak  as 
unto  wise  men.  One  of  the  gentlemen  who  spoke  yesterday  repeated 
what  had  been  said  by  Judge  Marshall,  and  which  I  am  glad  he  did. 
We  have  heard  it  before,  but  it  cannot  be  told  too  often,  for  it  con 
tains  a  very  wholesome  moral.  The  judge  said  to  a  counselor  who 
was  addressing  him,  that  a  judge  of  the  Supreme  Court  was  presumed 
to  know  something.  I  hope  that  no  decision  which  you  make  in  this 
case  will  repel  that  presumption.  Indeed,  I  think  it  will  be  extended 
and  enlarged,  and  that  the  presumption  after  this  will  be  not  only 
that  judges  of  the  Supreme  Court  know  something,  but  that  members 
of  the  Senate  and  House  of  Representatives  also  know  something. 

There  has  been  much  talk  here  about  getting  behind  the  action  of 
the  State.  I  do  believe  firmly  in  the  sovereign  power  of  the  State 
to  appoint  any  person  elector  that  she  pleases,  if  she  does  it  in  the 
manner  prescribed  by  the  Legislature  ;  and  after  she  has  made  the 
appointment  in  that  manner  no  man  has  aright  to  go  behind  her  act 
and  say  that  it  was  an  appointment  not  fit  to  be  made.  A  man, 
whether  he  be  an  officer  of  the  State  or  an  officer  of  the  Geueral  Gov 
ernment,  who  undertakes  to  set  aside  such  an  appointment  is  guilty 
of  a  usurpation  and  his  act  is  utterly  void.  Therefore,  if  the  gov 
ernor  of  the  State  of  Florida,  after  this  appointment  of  electors  was 
made  by  the  people,  undertook  to  certify  that  they  Avere  not  elected 
and  put  somebody  else  in  the  place  which  belonged  to  them,  his  act 
was  utterly  void  and  false  and  fraudulent.  We  are  not  going  behind 
the  action  of  the  State  :  we  are  going  behind  the  fraudulent  act  of 
an  officer  of  the  State  whose  act  had  no  validity  in  it  whatever. 

This  is  a  question  of  evidence.  Who  are  the  electors  ?  Two  sets  of 
persons  come  here,  each  of  them  pretending  to  be  the  agents  of  the 
State  of  Florida  for  the  purpose  of  performing  that  important  func 
tion  of  the  State,  the  election  of  a  President  and  Vice-President  of 
the  United  States.  It  is  the  business  of  the  two  Houses  to  count  the 
votes.  Now,  remember  the  argument  that  Mr.  Merrick  made  upon 
that  Constitution  ;  let  it  sink  into  your  hearts,  and  do  not  forget  it, 
because  it  is  the  God's  truth.  The  word  "  votes"  it  is  that  controls  the 
meaning  of  it.  "The  votes  shall  then  be  counted;"  the  votes,  mind 


ELECTORAL  COMMISSION. 


you ;  not  the  frauds,  not  the  forgeries.  Bat  they  on  the  other  side 
tell  us  that,  if  the  President  of  the  Senate  lays  before  the  two 
Houses  when  the  votes  are  to  be  counted  a  false  paper,  a  paper  which 
was  absolutely  counterfeited,  that  is  an  end  of  it;  you  cannot  pro 
duce  any  extrinsic  evidence  for  the  purpose  of  showing  that  it  was  a 
forgery  or  any  evidence  to  show  that  it  is  not  genuine.  The  doc 
trine  goes  that  far  if  it  is  to  be  adopted  at  all.  Carry  that  proposi 
tion  to  its  logical  consequences,  and  where  does  it  take  you  ?  That 
you  must  simply  receive  whatever  anybody  chooses  to  fabricate  and 
lay  before  Congress  through  the  President  of  the  Senate,  and  that 
neither  the  President  of  the  Senate,  nor  either  of  the  two  Houses,  nor 
both  of  them  together,  can  do  anything  but  just  take  what  is  given 
to  f  hem  without  inquiring  into  its  genuineness  at  all.  I  affirm,  every 
body  affirms,  and  I  hope  to  God  that  nobody  here,  even  on  the  other 
side,  \v  ill  attempt  to  deny,  that  the  Congress  of  the  United  States  has 
the  verifying  power,  the  power  that  enables  it  to  inquire  whether  this 
is  a  forgery  or  not;  and,  if  you  have  the  right  to  inquire  whether  it 
is  counterfeit,  you  have  a  right  to  inquire  whether  it  is  or  is  not  in 
validated  by  the  base  fraud  in  which  this  thing  was  concocted.  The 
work  of  the  counterfeiter  is  as  well  entitled  to  be  received  for  truth 
as  this  spawn  of  a  criminal  conspiracy,  got  up  to  cheat  the  State  and 
the  Union,  overturning  and  overthrowing  the  great  principle  that 
lies  at  the  foundation  of  all  our  security. 

Why,  this  doctrine  that  a  thing  which  is  false,  willfully  false,  is 
utterly  void  and  good  for  nothing,  has  been  by  this  court  (I  mean  by 
the  Supreme  Court)  asserted  a  thousand  times.  Nay,  I  undertake  to 
say  that  the  contrary  doctrine  has  never  yet  been  set  up  by  any  judge 
or  any  lawyer  whose  authority  is  worth  one  straw.  Suppose  you  have 
a  case  of  a  patent  issued  by  the  Secretary  of  the  Interior  or  the 
Commissioner  of  the  General  Land  Office,  the  validity  of  which  de 
pends  upon  a  confirmation  by  the  court,  and  he  falsely  recites  that 
the  court  delivered  a  judgment,  which  the  record  shows  it  never  did 
pronounce,  and  upon  that  basis  puts  the  patent.  Is  the  patent  worth 
anything?  AVhy  is  it  worthless  ?  Because  it  is  based  upon  a  fact 
which  is  untrue..  "False"  is  "fraudulent"  in  all  cases  of  this 
kind.  When  a  man  undertakes  to  say  "  I  certify  to  this  fact,"  and 
at  the  time  he  does  it  there  glares  upon  him  from  the  record  that  lies 
before  him  the  evidence  that  the  fact  is  the  other  way,  is  not  that  a 
fraudulent  certificate  ?  And  if  it  be  fraudulent,  is  it  not  as  void  in 
law  ;ind  as  corrupt  in  morals  as  if  it  were  a  simple  counterfeit  ? 

In  this  case  we  show  that  it  was  fraudulent.  How?  By  produc 
ing  the  evidence  which  the  governor  was  as  well  aware  of  as  we  are, 
which  every  man  and  woman  and  child  in  this  whole  nation  knew 
or  had  reason  to  believe  was  true,  namely,  that  the  other  set  of  elect 
ors  had  a  decisive  and  clear  majority  of  the  votes  that  were  received 
and  counted  at  the  polls.  He  knew  it  because  it  was  recorded  in 
e\  ei  \  county  of  his  State  ;  the  votes  were  collected  together  and  filed 
in  the  oi'lice  of  the  secretary  of  state.  That  is  one  way  in  which  we 
show  the  falsehood  and  the  fraud  ;  but  we  show  it  again  by  the  evi 
dence  of  an  act  of  the  Legislature  containing  the  solemn  protest  of 
the  State  against  the  cheat  which  her  de facto  governor  attempted  to 
palm  oft'  upon  her  and  upon  the  nation.  We  prove  it  again  by  show- 
inn  that  the  governor  himself — not  the  same  person  but  the  same 
officer — rebuked  this  fraud,  declaring  that  the  other  parties,  and  not 
those  whose  votes  are  now  offered,  were  elected  and  chosen  aud  au 
thorized  exclusively  to  cast  the  vote  of  the  State. 

Thus  acted  two  departments  of  the  State  government  of  the  State. 
But  the  State,  determined  not  to  be  cheated  out  of  her  vote  and  de 
termined  that  she  would  ascertain  it  in  some  undeniable  form  by  a 
proceeding  the  correctness  aud  truth  of  which  could  never  be  im 
peached,  took  these  usurpers  by  the  throat  and  dragged  them  into  a 
court  of  justice,  and  there  in  the  presence  of  a  competent  tribunal  she 
impleaded  them,  charged  them  with  the  offense,  brought  the  other 
parties  who  also  claimed  to  be  her  agents  for  this  purpose  and  set 
them  face  to  face.  The  proofs  were  given  upon  both  sides,  aud  it 
ended  in  a  solemn  adjudication  by  that  court  of  competent  jurisdic 
tion  that  the  persons  who  claimed  to  cast  these  votes  for  Hayes  and 
Wheeler  had  no  right,  nor  authority,  nor  power  whatever  to  do  that 
thing. 

Now  look  at  this.  Whenever  a  cause  has  been  decided  by  a  court 
of  competent  jurisdiction  the  determination  of  that  court,  as  a  pica 
is  a  liar,  ;is  evidence  is  conclusive  of  every  fact  and  every  matter  of 
hi ,w  which  was  or  could  have  been  adjudged  there,  and  neither  law 
nor  fact  there  determined  shall  ever  afterward  collaterally  or  directly 
be  drawn  into  controversy  again.  Is  not  that  the  rule?  It  was  so 
laid  down  in  the  Duchess  of  Kingston's  case,  which  has  been  followed 
in  every  court  in  Christendom  from  that  day  to  this.  There  is  not  in 
England  or  America  one  judge  or  one  lawyer  who  has  undertaken  to 
iisserd  that  the  law  is  otherwise  stated  nor  has  it  ever  been  attempted 
!<>  lie  clothed  in  any  other  words  than  the  clear  and  felicitous  lan- 
;;'nage  used  by  Chief -Justice  De  Grey  in  that  case. 

This  doctrine  has  been  applied  over  and  over  again  to  election  re 
turns  as  well  as  to  all  other  things.  It  would  be  perfectly  absurd  to 
say  t  hat,  when  the  title  to  a  horse  is  in  question  before  a  justice  of  the 
peace,  the  doctrine  that  makes  the  title  void  may  be  applied  so  as  to 
save  the  horse  to  the  honest  owner  of  it,  should  not  be  applied  to  a 
case  in  which  the  rights  of  a  whole  nation  are  involved. 

False  returns  have  been  made  many  times;  false  counts  have  been 
made  at  the  polls  ;  election  officers  have  altered  the  count  afterward. 
No  man  that  I  know  of  has  ever  said  that  an  election  fraud  ought  to 


be  held  to  be  successful  merely  because  it  was  put  into  the  forms  of 
law;  never  before  this  time,  except  on  two  occasions.  In  New  Jersey 
the  governor  of  that  State  stamped  the  broad  seal  upon  a  commission 
as  members  of  Congress  for  five  gentlemen  whom  he  knew  not  to  be 
elected.  Congress  said  that  certificate  was  void.  They,  the  House 
of  Representatives,  did  precisely  what  we  ask  the  two  Houses  of  Con 
gress  and  you,  their  substitute,  to  do  in  this  case.  It  was  contended 
then  as  now  that  the  certificate  of  the  governor  was  conclusive  evi 
dence  of  the  right  of  the  commissioned  men  to  take  their  seats  in  the 
first  place  and  participate  in  the  organization  of  the  House.  Do  not 
let  it  be  said  that  this  arose  out  of  the  right  of  a  legislative  body  to 
pass  upon  the  qualifications  of  its  own  members.  They  had  no  right 
to  pass  on  the  qualifications  of  their  own  members  until  they  were 
organized.  The  right  of  those  men  to  hold  their  seats  until  the  time 
when  their  seats  were  declared  vacant  upon  a  petition  of  their  adver 
saries  to  unseat  them  was  as  conclusive  as  anything  can  be,  suppos 
ing  it  to  be  honest.  But  it  was  not  honest,  and  that  made  it  all  void. 

Mr.  Commissioner  STRONG.  Were  those  Ipersons  who  held  the 
certificate  of  the  governor  of  New  Jersey  admitted  to  their  seats  at  all  ? 

Mr.  BLACK.    They  were  not. 

Mr.  Commissioner  STRONG.  Not  allowed  to  take  seats  and  par 
ticipate  in  the  organization? 

Mr.  BLACK.    Not  allowed  to  take  seats  at  all. 

Mr.  Commissioner  STRONG.  I  understood  you  to  say  that  they 
were. 

Mr.  BLACK.  I  do  not  know  but  that  your  honor  was  in  Congress 
at  that  time. 

Mr.  Commissioner  STRONG.    No,  sir. 

Mr.  BLACK.  I  supposed  you  were.  That  was  in  1839.  Yon  were 
not  in  Congress  then.  There  was  a  very  great  struggle  over  it  aud 
it  lasted  for  four  or  five  weeks,  one  set  of  men  pressing  the  fraud 
with  as  much  vigor  as  any  of  our  friends  can  press  this  one,  and  it 
being  resisted  at  the  same  time  with  perhaps  more  firmness  than  we 
are  resisting  now. 

There  is  another  case,  however,  that  one  of  the  judges  upon  this 
bench  will  recollect  more  distinctly.  I  do  not  say  that  there  was  any 
judicial  or  legislative  determination  of  that  question  which  makes  it 
authority  in  this  case,  but  it  is  an  illustration  of  the  condition  in 
which  we  are  to  be  thrown  if  a  mere  fraud,  a  counterfeit,  is  to  be  ac 
cepted  as  sufficient  to  carry  everything  before  it. 

In  1838  Mr.  Porter  was  elected  governor  of  Pennsylvania  by  a  ma 
jority  of  about  fourteen  thousand.  It  was  thought  desirable  that  the 
election  should  be  set  aside  and  treated  as  though  it  had  not  been 
held,  and,  in  order  to  do  that,  it  was  necessary  that  his  opponents 
should  have  possession  not  only  of  the  senate  and  executive,  which 
they  had  already,  but  of  the  other  house  of  the  Legislature,  the  lower 
house ;  and  in  order  to  effectuate  that  they  just  simply  manufactured, 
fabricated  impudently  and  boldly,  a  fraudulent  and  false  return  of 
eleven  members  from  the  county  of  Philadelphia.  The  law  was  that 
the  returns  were  to  be  made  to  the  secretary  of  the  Commonwealth 
aud  he  was  to  make  out  from  those  returns  a  list  of  the  persons  who 
were  entitled  to  be  members  of  the  house.  They  said  that  certificate 
was  conclusive  evidence,  aud  it  was  conclusive  evidence  if  the  fourth 
section  of  the  act  of  Congress  in  this  case  makes  the  governor's  cer 
tificate  conclusive  of  the  elector's  election,  because  it  is  very  nearly 
in  the  same  language.  You  know  what  became  of  it — the  Buckshot 
war.  They  intended  to  carry  that  out  at  the  expense  of  covering  the 
whole  CommouAvealth  with  blood  aud  ashes,  and  would  have  done  it 
only  they  could  not  get  General  Patterson  aud  his  men  to  fire  on  the 
people  who  were  there  assembled. 

Until  now,  except  in  those  two  cases,  nobody  in  this  country  has 
ever  had  the  portentous  impudence  to  offer  a  fraudulent  vote  and  in 
sist  that  the  fraud  could  not  be  inquired  into  because  forsooth  it 
came  wrapped  in  the  forms  of  law. 

I  believe  my  time  is  out,  aud  I  am  not  going  to  trespass  upon  your 
honors  any  further. 

Mr.  MERRICK.  May  it  please  the  Commission,  I  desire  to  file  a 
brief  prepared  by  Hon.  Ashbel  Green,  of  New  Jersey,  associated  with 
us  in  the  case,  which  is  a  clear,  full,  and  able  discussion  of  the  ques 
tion  now  before  the  commission  and  which  brief  counsel  have  unan 
imously  adopted. 

The  PRESIDENT.    It  will  be  received  and  filed. 

Mr.  BLACK.  There  is  one  thing  which  I  omitted  to  mention  and 
which  it  is  necessary  to  call  the  attention  of  the  court  to  ;  and  that 
is  the  evidence  which  we  have  produced  here  to  show  that  one  of  the 
Hayes  electors  was  ineligible  on  account  of  his  being  an  officer  of  the 
federal  Governmeut  on  the  day  the  election  took  place.  I  suppose 
that  makes  a  clear  case  as  agaiust  him. 

Mr.  E VARTS.  J  udge  Black,  will  you  allow  me  to  ask  a  single 
question  ?  A  certain  mass  of  evidence  not  otherwise  described  than 
generally  in  argument,  and  which  we  have  never  seen  and  inspected, 
is  argued  to  be  already  in,  upon  some  chancery  notion  that  it  has 
been  attached  to  something  that  has  brought  it  in.  What  is  it  con 
tended  that  it  is  attached  to  ? 

Mr.  BLACK.  O,  it  is  in  the  record,  a  part  of  the  record  in  this 
case  made  up  by  the  House  of  Representatives  before  the  case  was 
sent  over  here. 

Mr.  EVARTS.     What  is  it  attached  to  ? 

Mr.  BLACK.  "Attached  to."  Do  you  mean  to  ask  me  the  book 
binder's  question,  whether  it  is  stitched  ? 


ELECTORAL  COMMISSION. 


Mr.  EVARTS.    No.    What  is  it  ?    A  bill  in  chancery  ? 

Mr.  MERRICK.  It  was  attached  to  the  objection  made  when  the 
vote  was  offered  in  the  House,  and  is  recited  in  the  objection  as  being 
the  basis  upon  which  the  objection  rested. 

Mr.  EVARTS.    The  question  is  answered. 

Mr.  Commissioner  EDMUNDS.  Mr.  Evarts  will  find  it  on  page  3 
of  the  objection  signed  by  Charles  W.  Jones  and  others.  It  comes  in 
in  support  of  the  objection  and  is  referred  to  as  evidence  to  support  it. 

The  PRESIDENT.  The  side  that  has  been  opened  has  spoken  one 
hour  and  twenty  minutes.  We  will  now  hear  the  other  side. 

Mr.  MATTHEWS.  Mr.  President  and  gentlemen  of  the  Commis 
sion  :  Unused  as  I  am  to  appearing  before  tribunals  so  unprecedented 
and  august  as  this,  and  equally  unused  to  handling  such  high  themes 
as  form  the  subject  of  the  jurisdiction  of  this  Commission,  1  rise  with 
the  most  unaffected  diffidence  to  undertake  the  discharge  of  that  duty 
which  has  been  assigned  to  me  by  my  learned  associates ;  and  while 
I  hope  that  I  may  say  something  which  will  assist  the  Commission 
in  solvjng  the  questions  which  are  submitted  for  argument,  I  shall  be 
only  too  nappy  if,  after  I  take  my  seat,  I  shall  be  able  to  recollect 
that  I  have  said  nothing  which  may  injure  the  cause  I  represent. 

I  take  the  earliest  opportunity  to  correct  a  serious  misapprehension 
on  the  part  of  the  learned  gentlemen  who  have  argued  as  counsel  in 
the  opening  of  this  question  in  respect  to  the  position  which  they 
seem  to  assume  has  been  already  taken  upon  our  side.  I  refer  to  the 
conclusive  effect  that  they  suppose  we  attribute  to  the  certificate  of 
the  governor  of  a  State  accompanying  a  list  of  those  whom  he  certi 
fies  as  having  been  duly  appointed  electors  for  that  State.  I  am  au 
thorized  to  say,  by  the  gentlemen  who  are  objectors  to  the  second 
and  third  certificates,  that  that  statement  is  an  incorrect  representa 
tion  of  their  position,  and  I  respectfully  submit  that  when  I  have 
stated  ours  the  gentlemen  on  the  other  side  will  understand  our  case 
differently. 

I  think  I  may  also  take  this  immediate  opportunity  of  relieving 
the  apprehensions  of  my  very  learned  friend  [Judge  Black]  who 
spoke  last  and  has  spoken  so  often,  in  respect  to  the  possible  effect  of 
excluding  the  consideration  of  what  he  has  been  pleased  to  call  ex 
hibits  or  evidence,  upon  the  judgment  of  this  tribunal.  It  is,  Mr. 
President  and  gentlemen,  the  fortunate  feature  of  your  legal  consti 
tution  that  you  can  make  no  mistakes.  It  was  a  quaint  saying,  I 
believe,  of  Selden,  in  an  essay  on  papal  councils,  where  he  was  treat 
ing  of  the  doctrine  that  they  were  enlightened  by  the  presence  of  the 
Holy  Ghost,  that  he  had  generally  found  that  the  Spirit  dwelt  in  the 
odd  man.  So,  in  the  exercise  of  the  constitutional  function,  whatever 
that  may  be,  devolved  upon  Congress  in  its  participation  in  the  count 
of  the  electoral  votes,  effectual  provision  has  been  made  against  the 
defeat  of  the  transaction  by  referring  it  to  a  tribunal  that  cannot  be 
equally  divided. 

And  now,  Mr.  President  and  gentlemen,  allow  me  to  state  in  very 
general  terms  and  yet  as  precisely  as  I  have  been  able  to  accomplish 
it,  the  various  propositions  by  wh'ich  and  through  which  we  lead  our- . 
selves  and  hope  to  lead  you  to  the  conclusion  for  which  we  contend 
in  respect  to  the  point  to  which  you,  as  the  representatives  of  con 
gressional  jurisdiction,  may  go  in  this  inquiry,  and  that  point  where 
you  must  stop. 

What  is  the  transaction  that  is  the  subject  of  the  general  investi 
gation  ?  It  is  stated,  in  its  final  result,  as  the  election  of  a  President 
and  Vice-President  of  the  United  States.  In  what  does  that  consist? 
It  is  not  a  single  act ;  it  is  a  series  of  acts.  The  election  of  those 
two  high  officers  is  not  a  popular  election,  neither  according  to  the 
spirit  of  the  Constitution,  the  meaning  of  its  framers,  the  interpreta 
tion  of  the  generation  which  adopted  it,  or  the  practice  under  it. 
There  is  a  selected  body  of  men  in  each  State  who  compose  the  con 
stituent  body  which  is  to  make  that  election  ;  and  I  need  not  remind 
the  tribunal  that  they  have  a  right  to  make  a  selection  as  well  as  an 
election;  and  it  is  altogether  a  mistake,  in  my  judgment,  to  consider 
this  electoral  body  as  delegates  representing  a  State  or  the  people  of 
a  State,  as  agents  accomplishing  their  will.  They  not  only  have  power 
in  the  sense  of  miaht,\mi  they  have  power  in  the  sense  of  rigkt,tovote, 
on  the  day  named,  for  the  persons  who,  in  their  judgment,  ought  to 
be,  all  things  considered,  the  chief  executive  officers  of  the  nation. 

Each  State  under  the  Constitution  has  the  right  to  prescribe  the 
mode  in  which  these  electors  shall  be  appointed.  No  one  else  has  any 
right  or  authority  in  that  business.  They  may  elect  by  the  General 
Assembly  or  Legislature  ;  they  may  appoint  by  the  governor,  or  any 
other  officer  whom  they  may  choose  to  designate  ;  they  may  cause  that 
appointment  to  be  based  on  the  result  of  a  popular  election ;  and  that, 
in  the  case  of  Florida  and  now  in  all  the  States,  except  the  new  Stat* 
of  Colorado,  I  believe,  is  the  universal  practice  ;  so  that  the  appoint 
ment  of  electors  in  a  State  is  based  on  a  popular  election. 

Now,  what  is  that  election  ?  That  also  consists  not  of  one  act,  but 
of  a  series  of  acts  beginning  with  the  deposit  in  the  ballot-box,  if  it 
be  by  ballot,  as  we  may  assume  it  to  have  been,  in  each  locality  pre 
scribed  by  law,  called  a  parish,  or  a  precinct,  or  a  township,  or  a 
school  district,  or  whatever  small  division  of  territory  may  be  adopted. 
The  voter  deposits  his  written  or  printed  ballot  into  the  hands  of 
one,  or  two,  or  three  judges  of  election,  who  inscribe  his  name  in  a 
list  of  voters,  and  put  his  ballot  into  the  box,  and  then  at  the  con 
clusion  of  the  election  make  a  return  of  the  result,  showing  how  it 
has  been  attained.  That  is  carried  from  the  primary  voting-places 
to  the  county  Seat,  and  there  county  officers  compile  these  various  re 


turns,  acting  with  more  or  less  powers  according  to  the  statutes  of  tha 
State  from  which  they  derive  their  appointment ;  and  the  result  of 
that  choice  in  that  county  as  it  appears  to  them,  based  on  the  returns 
which  they  have  received  from  the  primary  officers,  is  reported  by 
them  again  to  a  third  and  highest  and  last  returning  officer  or  can 
vassing  board,  who,  receiving  these  returns  from  all  the  counties  in  the 
State,  exercise  the  powers  conferred  upon  them  by  law  and  make  that 
which  in  my  judgment  is  the  completion  and  the  consummation  of  this 
appointment.  That  board  sitting  upon  these  returns  make  their  final 
return  of  the  fact,  as  it  appears  to  them.  Sitting  under  their  re 
sponsibility  as  public  officers  and  in  the  exercise  and  discharge  of 
public  functions  and  public  duties ;  and  having  accomplished  their 
task,  they  deposit  the  record  of  their  finding  and  declaration  in  the 
public  archives  of  the  State  and  there  they  remain  in  perpetual 
memorial  of  the  fact  which  they  have  found. 

Up  to  that  point  the  State  alone  acts  in  the  appointment.  That 
last  act  completes  that  appointment,  and  that  appointment  completed 
and  finished  is  unchangeable  except  by  State  authority  exerted  upon 
that  act  within  an  interval  of  time ;  and  what  is  that  ?  Congress 
under  the  Constitution  of  the  United  States  has  had  reserved  to  it 
control  in  certain  particulars  over  this  appointment ;  that  is  to  say, 
it  may  designate  the  day  on  which  the  appointment  shall  be  made, 
and  it  shall  designate  the  day  on  which  the  electors  so  appointed 
shall  deposit  their  ballots  for  President  and  Vice-President.  In  that 
interval  I  do  not  know  and  I  do  not  care  to  discuss,  I  will  neither 
deny  nor  affirm,  but  I  am  willing  to  admit,  any  and  everything  that 
may  be  claimed  on  the  other  side  as  to  the  existence  of  State  authority 
to  inquire  into  and  affect  that  record.  But  when  the  day  has  passed, 
when  in  pursuance  of  the  authority  of  law  conferred  upon  them  by 
tha,t  appointment  under  the  statutes  of  the  State,  on  the  day  named 
by  Congress  the  body  which  has,  according  to  the  form  of  law,  been 
invested  with  the  apparent  title  to  act  as  the  constituents  of  that 
great  electoral  body,  and  when  they  are  required  by  Constitution  and 
law  to  accomplish  the  act  for  which  and  for  which  alone  they  have 
been  brought  into  being,  then  that  transaction,  so  far  as  State  au 
thority  is  concerned,  has  passed  beyond  the  limit  of  its  control.  It 
then  becomes  a  Federal  act.»  It  then  becomes  one  of  those  things 
which  pass  into  the  jurisdiction,  whatever  that  may  be,  of  Federal 
power.  It  is  the  deposit  of  the  vote  of  the  elector  in  the  ballot-box 
of  the  United  States,  and  the  nation  takes  charge  of  its  ballot-box. 
Whatever  power,  then,  may  be  exerted  after  that  must  be  exerted 
under  that  power  which  is  conferred  by  the  Constitution  upon  any 
constitutional  national  authority  which  is  invested  with  authority 
over  the  subject.  These  electoral  votes  so  given  are  to  be  sealed  and 
transmitted  to  the  seat  of  Government,  delivered  into  the  custody  of 
the  President  of  the  Senate,  the  Vice-President  of  the  United  States, 
who  is  ex  officio  President  of  the  Senate,  by  him  kept  unopened  until 
the  day  named  when  he  is  to  open  the  certificates,  and  then  the  votes 
shall  be  counted. 

What,  then,  are  we  engaged  in  doing?  What,  then,  is  this  Com 
mission  organized  to  effect  ?  It  is  to  assist  in  that  business  which  un 
der  the  Constitution  is  called  counting  the  electoral  vote.  This  is 
all  the  power  that  Congress  has  on  that  subject.  It  makes  no  differ 
ence  who  is  to  do  it.  The  debate  up  to  the  passage  of  this  act  was 
whether  the  President  of  the  Senate  should  do  it  or  whether  the  two 
Houses  of  Congress  should  participate  with  him  in  it;  and  a  variety 
of  opinions  from  the  year  1800  up  to  now  has  been  entertained  and 
expressed  by  distinguished  statesmen  on  both  sides  as  to  where  the 
power  was  lodged.  But  it  is  immaterial  now.  The  question  is  not 
who  does  it,  but  what  is  it  that  is  to  be  done. 

It  was  said  by  the  objectors  on  our  side — I  think  it  cannot  be  con 
troverted — that  counting  in  its  primary  meaning  is  merely  enumera* 
tion  and  is  limited  to  that,  in  all  cases  where  the  subjects  of  the 
count  are  definitely  ascertained.  To  be  sure,  it  is  an  important  ques 
tion  as  put  by  the  learned  counsel  on  the  other  side,  what  is  to  be 
counted  ?  There  is  no  dispute  on  that.  It  is  the  electoral  votes;  and 
the  cases  which  are  referred  to  this  tribunal  are  those  of  two  sets  of 
votes,  and  the  power,  therefore,  is  implied  to  distinguish  between 
these  several  sets  of  votes  and  ascertain  which  is  the  vote  lawfully 
to  be  counted. 

What  is  the  nature  and  extent  of  that  implied  power  incident  to 
this  right  to  separate  the  lawful  from  the  unlawful  electoral  votes  ? 
for  upon  the  question  of  the  limit  of  the  inquiry  which  this  body  is 
authorized  to  make  under  the  act  which  organizes  it  depends  the 
solution  of  the  question  as  to  what  evidence  it  may  look  to  for  the 
purpose  of  determining  the  fact  which  is  the  subject  of  its  inquiry. 
I  think  it  involves  undoubtedly  the  exercise  of  certain  discretion  and 
judgment.  It  may  involve  the  decision  of  some  questions  of  fact  not 
determinable  merely  by  inspection  of  the  paper  purporting  to  con 
tain  the  vote  or  to  constitute  the  vote ;  as,  for  example,  the  very  case 
put  by  one  of  the  learned  gentlemen  on  the  other  side,  its  genuine 
ness  or  whether  it  be  a  forgery  ;  whether,  if  it  be  proven  by  a  seal,  the 
seal  be  the  genuine  seal.  It  may  also  involve  the  decision  of  some 
question  of  law,  as  for  example  whether  the  paper  offered  is  one 
known  to  the  law  or  made  in  conformity  with  the  law. 

But  this  power,  however  described,  whether  as  ministerial,  admin 
istrative,  political,  or  otherwise,  must  be  carefully  distinguished  from 
that  judicial  power  which  is  exerted  by  judicial  courts  under  the 
jurisdiction  to  try  the  title  to  an  office  by  the  prerogative  writ  of  quo 
warranto.  In  the  exercise  of  that  jurisdiction  the  court,  armed  with 


ELECTORAL  COMMISSION. 


its  proper  process  and  the  machinery  of  trial  by  jury  and  for  the  en 
forcement  of  evidence,  goes  to  the  very  truth  and  right  of  the  matter 
without  regard  to  the  paper  title.  It  ascertains  by  a  scrutiny  and 
the  testimony  of  witnesses  who  in  fact  received  the  legal  number  of 
legal  votes  to  vest  him  with  actual  title  to  the  office.  Is  it  proposed 
here  to  do  that  ?  Why,  if  your  honors  please,  what  length  of  time 
would  be  required  to  investigate  by  recounting  and  recauvassiug  the 
popular  vote  that  lies  at  the  foundation  of  the  electoral  vote  in  every 
State  in  the  Union,  or  even  in  those  which  are  the  subjects  of  dispute 
in  this  count?  And  if  you  cannot  go  down  to  the  bottom,  if  you 
cannot  in  probing  and  searching  for  frauds  and  errors  and  mistakes 
go  through  the  long  and  black  catalogue  of  crime,  why  stop  at  the 
first  in  order  to  take  advantage  of  all  the  rest  ?  If  this  work  is  the 
work  of  this  tribunal,  then  it  is  to  be  made  thorough  and  searching; 
certainly  there  is  not  any  principle  of  law  or  good  morals  which,  if 
the  door  be  opened  to  that  inquiry,  requires  you  to  stop  before  you 
have  got  through.  ' 

I  think  it  is  plain  that  this  Commission  is  not  engaged  in  the  exer 
cise  of  that  jurisdiction.  It  is  not  invested  with  any  portion  of  that 
judicial  power  which  is  conferred  or  constituted  by  the  Constitution 
of  the  United  States;  and  Congress  not  possessing  it  itself,  could  not 
confer  it  upon  such  a  body  as  this,  which  is  created  for  the  mere  pur 
pose  of  assisting  in  the  count  of  the  votes,  because  it  is  not  such  a 
court  as  Congress  is  authorized  to  create  for  the  purpose  of  receiving 
a  grant  of  the  judicial  power  of  the  Constitution.  I  do  not  doubt 
that  the  jurisdiction  to  try  the  title  to  the  office  of  President  and  Vice- 
President,  being  judicial  and  properly  exercised  under  the  power  to 
issue  writs  of  quo  wa-rranto,  may  be  vested  by  law  in  the  Federal 
courts,  as  a  case  at  common  law  arising  under  the  Constitution  and 
laws  of  the  United  States;  but  until  vested  it  remains  dormant. 
Whether  in  point  of  fact  such  legislation  exists,  either  by  a  direct  act 
of  Congress  or  indirectly  by  the  adoption  of  the  Maryland  statutes 
in  the  District  of  Columbia  is  a  question  upon  which  I  am  not  ad 
vised  ;  but  the  fact  that  such  a  jurisdiction  either  has  been  or  may 
be  evoked  out  of  the  Constitution  is  an  unanswerable  reply  to  the 
doctrine  that  Congress  or  this  tribunal  sitting  in  its  stead  has  a  right 
to  make  judicial  inquiry  as  in  quo  warranto  into  the  title  of  any  office. 
I  claim,  provided  there  be  no  actual  legislation  such  as  I  have  sp  oken 
of  by  Congress,  in  respect  to  quo  warranto  in  regard  to  President  and 
Vice-President,  that  there  is  no  law,  either  State  or  Federal,  in  refer 
ence,  to  the  office  and  function  of  an  elector.  I  maintain  that  there 
is  no  law, either  State  or  Federal,  whereby  that  title  can  be  judicially 
investigated  and  determined  after  he  has  cast  his  vote. 

I  maintain  that  no  State  can  exercise  such  jurisdiction  after  that 
event,  because,  although  by  the  terms  of  the  Constitution  of  the 
United  States  each  State  by  its  Legislature  may  determine  the  mode 
of  the  appointment  and  in  fact  make  the  appointment  of  its  electors, 
yet  the  function  of  voting  for  President  and  Vice-Presideut  is  exer- 
•  •iseil  under  the  authority  of  the  Constitution  of  the  United  States; 
and  if  it  were  possible  that  such  jurisdiction  existed  in  State  tribu 
nals  under  the  authority  of  State  laws,  it  would  be  an  easy  matter  in 
the  great  strife  and  struggle  of  political  parties  in  the  various  States 
that  constitute  the  Union  after  the  election  to  interpose  by  judicial 
process  such  delays  in  respect  to  the  quieting  of  the  title  of  the  par 
ties  having  the  regular  and  formal  appearance  of  election  as  to  defeat 
by  an  injunction  as  well  as  a  quo  warranto  the  right  to  cast  the  vote  at 
the  time  when  by  the  Constitution  and  laws  of  the  United  States  it  is 
necessary  that  it  should  be  cast.  And  so  it  would  be  in  the  power  of 
party  and  faction  at  any  time  when  beaten  at  the  polls  by  the  popular 
vote  to  resort  to  these  extraordinary  writs  under  State  authority  and 
defeat  their  adversaries  by  the  interminable  delays  of  litigation. 
„  It  was  the  policy  of  our  fathers,  it  is  the  policy  of  the  Constitution 
to  provide  a  machinery  which,  let  it  work  as  it  will,  must  neverthe 
less  by  the  4th  day  of  March  after  the  election  necessarily  work  out 
the  result  of  having  some  President  and  some  Vice-President.  It  was 
of  far  more  consequence,  and  was  so  esteemed  by  the  framers  of  the 
Constitution,  as  it  will  be  by  every  lover  of  law  and  order,  that  we 
should  have  some  constituted  authority  ;  far  more  important  that  the 
line  of  continuous  authority  should  be  preserved,  than  that  either  A 
or  B  should  hold  the  place  and  receive  the  power  and  the  emoluments 
of  the  office. 

I  say,  therefore,  that  although  I  admit  that  the  State  may  provide 
as  it  pleases  any  mode  by  which  the  appointment  may  be  made  and 
by  which  the  fact  of  appointment  may  be  verified  so  as  to  furnish 
such  machinery  and  mode  of  proof  as  it  may  choose  to  verify  its  own 
appointment,  yet  nevertheless  it  must  take  effect,  if  it  have  any  power 
whatever,  prior  to  the  time  when  by  the  Constitution  of  the  United 
States  those  who  have  the  indicia  of  office  and  the  color  of  office  are 
called  upon  as  the  appointed  electors  of  a  particular  State  to  discharge 
the  constitutional  duty  of  depositing  their  vote  for  President  and 
Vice- President ;  so  that  when  the  person  appointed  or  whe  appears  to 
have  been  appointed,  having  in  his  possession  formal  evidences  of  his 
appointment,  in  fact  exercises  the  authority  conferred  upon  him  under 
the  Constitution  of  the  United  States,  actually  discharges  the  duty  of 
casting  the  vote  which  it  is  his  business  to  deliver,  the  transaction  to 
which  he  has  been  a  party  has  passed  beyond  the  control  of  State 
power  and  authority. 

Then,  Mr.  President,  if  I  be  right,  the  actual  question  before  this 
Commission  is  not  which  set  of  electors  in  Florida  received  a  majority 
of  popular  votes ;  it  is  not  which  set  appears  from  the  return,  of  the 


votes  made  at  the  primary  voting-places  to  ha.ve  had  a  majority  of 
votes  so  returned ;  it  is  not  which  set  by  looking  at  the  county  re 
turns  appears  to  have  had  a  majority  of  the  votes  so  compiled ;  but 
it  is  this :  which  set  by  the  actual  declaration  of  the  final  authority 
of  the  State  charged  with  that  duty  has  become  entitled  to  and 
clothed  by  the  forms  of  law  with  actual  incumbency  and  possession 
of  the  office.  That  body  of  electors  which,  with  an  apparent  right 
and  a  paper  title,  and  in  possession  of  the  function,  franchise,  or 
office,  actually  exercises  it,  is  for  the  purposes  of  this  tribunal  the 
lawful  body  whose  votes  must  be  counted.  It  is  not  necessarily  the 
body  which  upon  subsequent  proceedings  may  be  ascertained  to  have 
had  de  jure  title  ;  but  it  is  that  body  which  by  color  of  office,  having 
the  formal  external  proofs  of  authority,  was  in  point  of  fact  inducted 
into  possession  of  the  power  to  cast  that  vote  and  who  did  it ;  in  other 
words,  who  under  the  law  of  Florida  were  on  the  6th  day  of  Decem 
ber,  1876,  de  facto  electors  for  that  State. 

The  gentlemen  say  there  were  two  sets.  Why,  Mr.  President  and 
gentlemen,  it  is  as  absurd  to  say  that  there  are  or  can  be  two  sets  of  de 
facto  officers  in  the  same  office  as  it  is  to  say  that  there  are  or  can  be 
two  sets  of  de  jure  officers.  It  is  as  absurd  in  law  as  it  would  be  in 
physics  to  say  that  two  bodies  can  occupy  the  same  space  in  the  same 
moment  of  time.  The  man  who  is  in  the  office,  who  has  possession  of 
it,  who  has  been  inducted  into  it,  who  exercises  its  authority,  who 
does  the  thing  which  that  office  authorizes  whomsoever  is  in  it  to  do, 
is  the  man  for  whom  we  are  inquiring,  for  he  is  the  man  that  votes. 
Nobody  else  votes.  Everybody  else  is  a  mere  volunteer,  unorganized, 
illegal,  without  authority,  no  matter  although  his  ultimate  and  final 
right  be  better  than  that  of  the  man  who  has  intruded.  ^ 

There  is  no  safety  and  there  is  no  sense — I  speak  it  with  great  re 
spect  to  this  tribunal  and  to  the  gentlemen  who  differ  with  me;  I  am 
bound  to  say  it — there  is  neither  safety  nor  sense  in  any  other  doc 
trine.  You  may  talk  as  eloquently  as  may  be  on  questions  of  fraud. 
Tt  is  said  "  fraud  vitiates  everything."  No,  it  does  not.  It  makes 
things  voidable,  but  it  does  not  vitiate  everything.  If  my  friend,  [Mr. 
Black,]  by  the  arts  and  stratagems  of  other  people,  (which  I  know  his 
guileless  soul  does  not  possess,)  should  hoodwink  me  by  fraudulent 
misrepresentation  into  voting  for  his  candidate — if  that  be  a  possible 
supposition — I  cannot  retract  my  ballot  nor  can  the  scrutiny  set  aside 
the  result,  because  fraud  upon  private  persons  is  sometimes  insignifi 
cant  when  compared  with  public  interests.  Frauds  by  trustees  or 
persons  in  fiduciary  capacities  do  not  make  void  their  fraudulent 
transactions.  They  may  be  avoided,  but  only  by  judicial  process,  and 
the  defense  of  laches  is  always  a  sufficient  answer ;  and  lapse  of  time 
may  be  an  element  in  a  matter  of  such  transcendent  public  interest  as 
this  that  no  man,  after  the  time  had  elapsed,  can  be  heard  to  allege  it. 

And,  Mr.  President,  the  only  alternative,  as  I  think  I  have  already 
once  said,  is,  upon  the  doctrine  of  our  learned  friends  on  the  other 
side,  that  if  the  inquiry  is  opened  it  must  be  opened  to  all  intents  and 
purposes;  it  must  be  opened  for  all  inquiries  and  investigations  ;  it 
must  be  opened  for  all  possible  proofs.  It  will  not  do  to  stop  at  the 
first  stage  in  the  descent ;  but  you  must  go  clean  to  the  bottom.  And, 
although  it  be  not  pertinent  to  a  forensic  discnssion,  perhaps  the 
example  set  to  me  by  the  learned  gentlemen  on  the  other  side  will 
warrant  the  expression,  on  my  part,  of  my  personal  confidence  that,  if 
that  true  result,  setting  aside  all  the  forms  and  the  fictions  of  the  law, 
could  be  ascertained,  there  would  be  no  question  here  as  to  who  ought 
to  be  entitled  to  have  counted  in  his  favor  the  vote  of  Florida. 

Mr.  President  and  gentlemen,  an  argument  has  been  made  upon  the 
effect  of  the  act  of  Congress  of  1792,  which  provides  for  the  certifica 
tion  by  the  governor  of  a  State  of  those  who  have  been  duly  appointed 
electors  in  that  State.  I  have  already  corrected  the  misapprehension 
of  the  learned  gentlemen  on  the  other  side  that  we  regard  that  as  so 
conclusive  as  that  inquiry  might  not  be  made  into  its  falsity,  whether  a 
forgery  or  genuine ;  but  nevertheless  it  is  evidence ;  it  is  evidence 
provided  by  existing  law  ;  it  is  the  evidence  which  Congress,  of  which 
you  are  the  advisers  and  constituent  parts  in  this  matter,  has  made 
and  declared  to  be  regular,  ordinary,  usual,  formal  evidence  of  the 
facts  which  it  contains,  and  if  it  be  not  conclusive,  yet  it  is  sufficient. 

I  admit  that  the  mere  certifying  act  is  not  conclusive.  It  may  be 
dispensed  with.  Congress,  who  provided  It,  furnished  it,  made  it  a 
part  of  the  transaction,  may  disregard  it.  They  need  not  tie  them 
selves  hand  and  foot ;  they  need  not  estop  themselves ;  but  they  have 
directed  this  Commission  only  to  receive  that  which  is  competent  and 
pertinent  by  existing  law.  and  the  existing  law  makes  the  governor's 
certificate  pertinent  and  competent  and  sufficient. 

But,  Mr.  President  and  gentlemen,  if  yon  go  behind  the  certificate 
what  are  you  limited  to  by  the  necessity  of  the  thing  f  In  my  judg 
ment,  you  are  limited  to  this:  to  an  inquiry  into  what  are  the  facts 
to  which  he  should  have  certified  and  did  not ;  not  what  are  or  may  be  the 
ultimate  and  final  facts  and  right  of  the  case.  The  facts  to  be  certi 
fied  by  the  governor  in  this  or  in  any  case  are  the  public  facts  which 
by  law  remain  and  constitute  a  part  of  the  record  in  the  public  offices 
and  archives  of  the  State,  and  of  which,  being  governor  for  the  time 
being,  he  has  official  knowledge.  So,  then,  the  case  stands,  that  on 
the  day  and  at  the  time  when,  if  ever,  the  title  and  right  to  the  pos 
session  and  incumbency  of  this  function  became  complete,  Governor 
Stearns  was  the  lawful  governor  of  Florida,  and  the  fact  to  be  certi 
fied  was  just  what  appeared  at  that  time  in  his  office  or  in  the  office 
of  the  secretary  of  state,  to  wit,  that  by  the  judgment  and  finding  of 
the  final  authority  of  the  State  canvassing  that  election  the  gentle- 


ELECTORAL  COMMISSION. 


men  whom  he  certified  to  be  electors  had  in  fact  and  according  to 
law  been  appointed. 

How  shall  I  treat  the  pretense  that  a  subsequent  governor,  coming 
in  at  an  after  time,  or  that  a  court,  acting  upon  the  status  of  the  par 
ties  subsequently  when  it  rendered  its  judgment — if  it  rendered  any 
at  all — could  by  relation  change  the  de  facto  situation,  or  the  pretense, 
more  groundless  still,  that  an  act  of  legislation  could  unsettle  and 
otherwise  determine  that  which  had  already  passed  beyond  the  con 
trol  of  mortal  power  ?  For,  Mr.  President  and  gentlemen,  I  believe 
it  is  a  saying  of  one  of  the  sages  of  the  common  law  that  though  Par 
liament  be  omnipotent,  it  cannot  alter  a  fact,  and  facts  are  rights.  All 
our  rights  are  founded  on  facts.  All  the  theory  and  practice  of  our 
law  and  of  judicial  tribunals  and  all  that  system  of  government  and 
society  under  which  we  live  depend  not  upon  abstractions,  however 
beautifully  they  may  be  defined,  but  upon  the  facts  of  human  nature 
and  of  human  life.  Stare  decisis  !  where  does  that,  come  from  ?  You 
perpetuate  an  error  because  if  you  do  not,  you  will  commitaivrong. 

Will  the  President  inform  me  how  much  time  I  have  consumed  ? 

The  PRESIDENT.  You  have  spoken  forty-five  minutes.  I  will 
notify  you  when  the  hour  is  up.  • 

Mr.  MATTHEWS.  The  qitowarranlo  proceedings  in  Florida  which 
seem  to  be  relied  upon  in  this  matter,  in  my  judgment,  cannot  be 
alleged  against  the  truth  of  the  facts  recited  in  Governor  Stearus's 
certificate,  mainly  for  the  reason  which  I  have  already  given,  because 
all  State  power  had  passed  away.  But  the  record  of  that  proceeding 
does  not  in  anywise  correspond  with  the  description  of  what  consti 
tutes  an  estoppel  by  judgment  according  to  the  decision  of  Chief- 
Justice  De  Grey  in  the  Duchess  of  Kingston's  case.  In  the  quo  war- 
ranto  in  Florida  the  inquiry  was  not  what  it  is  here.  The  inquiry 
there  was  what  was  the  actual,  real,  final  right,  not  who  in  fact  ac 
cording  to  law  on  the  day  exercised  the  power  and  was  entitled  to 
possession.  One  man  may  be  entitled  to  possession,  another  man  may 
have  the  right.  Nothing  is  more  common  than  that.  Gentlemen  have 
sat  in  both  Houses  of  Congress  upon  a  certificate  of  election  and  they 
had  the  right  of  possession,  when  perhaps  some  unnamed  person  out 
side  the  area  and  not  entitled  to  the  privileges  of  the  floor  may  have 
had  residing  within  him  all  the  time  the  real  right. 

That  leads  me  to  say  that  the  analogy  drawn  between  this  case 
and  the  celebrated  New  Jersey  case  by  my  distinguished  friend  from 
Pennsylvania  [Mr.  Black]  fails  utterly,  because  by  the  express  terms 
of  the  Federal  Constitution  the  House  of  Representatives  was  the 
judge  not  only  of  the  qualification  and  return  of  the  members  but 
of  their  election.  Therefore  it  could  set  aside  the  broad  seal  of  the 
State  of  New  Jersey  and  the  prima  facie  right  to  inquire  into  the  real 
right.  I  have  already  undertaken  to  show  to  this  Commission  that 
they  are  not  sitting  here  with  any  such  jurisdiction  as  that. 

But  so  far  from  availing  anything  as  proof  against  the  position 
which  I  deem  to  be  the  right  and  constitutional  one  here,  that  record 
establishes  for  us  by  the  very  verity  which  is  claimed  for  it  on 
the  other  side  the  essential  fact  on  which  in  my  judgment  rest  all 
the  rights  involved  in  this  discussion  ;  and  that  is  that  on  that  day, 
011  the  6th  of  December,  the  day  appointed  by  law,  the  respondents 
in  that  proceeding  who  are  certified  in  certificate  No.  1  were  in  posses 
sion  of  and  exercising  and  discharging  the  functions  and  duties  of  that 
office  of  elector,  and  that  the  complainants  or  relators  were  not,  be 
cause,  they  said,  we  kept  them  out,  we  were  unlawfully  intruding 
and  had  ousted  them  and  thereupon  they  asked  to  have  themselves 
reinstated.  But  the  fact  is  that  on  that  day,  the  critical  day,  the  day 
of  days,  the  respondents  in  that  record  are  shown  by  the  gentlemen 
to  have  been  in  the  undisturbed  exercise  of  the  actual  franchise  of 
electors  for  the  State  of  Florida,  and  hence  they  cast  their  votes  and 
hence  their  votes  are  entitled  to  be  counted  ;  and  inasmuch  as  the 
relators  appear  by  the  record  not  to  hare  been  in  posseiwioH,  not  to  have 
been  situated  so  that  by  law  they  could  exercise  that  function,  they 
complain  and  admit  that  the  form  of  their  vote  was  mere  dumb-show 
without  meaning  or  significance  and  without  the  least  particle  of 
legality  or  constitutional  force. 

Mr.  President,  I  am  exceedingly  obliged  to  yourself  and  the  gentle 
men  of  the  Commission,  and  will  now  suspend  the  argument  so  far  as 
I  am  concerned. 

The  PRESIDENT.  You  have  occupied  fifty-five  minutes.  Is  there 
another  gentleman  to  be  heard  on  the  same  "side  this  afternoon  ? 

Mr.  EVARTS.  It  is  expected  that  Mr.  Stoughton  and  myself  will 
divide  the  remaining  two  hours  and  five  minutes,  but  we  were  not 
expecting  to  proceed  to-day. 

The  PRESIDENT.  The^understanding  of  the  Chair  was  that  dur 
ing  this  day  two  would  speak  on  each  side,  if  three  were  to  speak 
altogether. 

Mr.  Commissioner  ABBOTT.  There  is  to  be  but  one  closing  argu 
ment  on  each  side  on  Monday,  as  I  understood  the  arrangement. 

The  PRESIDENT.  There  is  only  one  person  to  close  on  each  side 
on  Monday.  That  was  my  understanding. 

Mr.  EVARTS.  That  was  the  arrangement  when  there  were  but  two 
on  each  side  to  speak ;  but  then  when  there  were  three  introduced 
it  was  required  that  two  should  open. 

The  PRESIDENT.    On  each  side,  I  meant. 

Mr.  EVARTS.    We  all  three  speak,  one  after  the  other. 

The  PRESIDENT.    I  think  two  had  better  speak  to-night. 

Mr.  EVARTS.    If  it  is  your  honor's  instruction,  we  will  submit. 

Mr.  STOUGtHTON.    Mr.  President  and  gentlemen  of  the  Commis 


sion,  although  my  brother  Evarts  and  myself  propose  to  divide  be 
tween  us  the  remainder  of  our  time,  I  shall  occupy  I  thiuk  but  a  very 
small  portion  of  it. 

The  question  which  the  court  or  rather  this  tribunal  has  directed 
us  to  argue,  as  I  understand  it,  is  whether  any,  and  if  any  what,  tes 
timony  can  be  received  in  this  case  of  any  nature,  independent  of  the 
documents  which  were  transmitted  to  the  President  of  the  Senate, 
and  opened  in  the  presence  of  the  two  Houses. 

In  the  first  place  it  seems  to  mo  appropriate  to  ask  what  is  the  ju 
risdiction  of  this  tribunal  and  what  are  its  powers  ?  Upon  it  is  de 
volved  by  legislation  of  Congress  such  power,  if  any,  to  count  the 
electoral  vote,  in  the  special  cases  referred  to  it,  as  is  possessed  by 
the  twro  Houses  of  Congress  acting  separately  or  together.  The  ju 
risdiction  as  conferred  is,  therefore,  an  unknown  quantity  until  it 
shall  be  ascertained  what  are  the  powers  of  the  two  Houses  acting 
separately  or  together  ;  and  the  purpose  of  this  Commission  is — assum 
ing  the  power  of  the  two  Houses  or  of  either  to  be  to  count  the  elect 
oral  vote — to  ascertain  what  duties,  what  powers  are  involved  in  the 
exercise  of  that  function.  The  purpose  to  be  attained  is  the  count 
of  the  electoral  vote.  The  power  devolved  upon  this  tribunal  is  to 
count  that  vote  in  special  cases.  It  is  to  count  the  electoral  vote,  and 
not  to  count  the  votes  by  which  the  electors  were  elected.  That  is  a 
discrimination  which  I  think  hardly  need  be  enforced  by  argument. 
The  electoral  vote  is  to  be  counted,  and  this  tribunal  has  no  power, 
it  has  no  duty  to  count  the  vote  by  which  the  electors  were  elected. 
If  it  has  it  will  be  compelled  to  descend  into  an  unfathomable  depth 
and  to  grope  its  way  in  paths  hitherto  untrodden  by  judicial  feet  and 
amid  voting-polls  and  places  whence  it  cannot  emerge  in  many  days. 

Now,  what  is  proposed  by  the  testimony  in  question  ?  The  general 
inquiry  which  counsel  are  to  answer  is,  what,  if  any,  testimony  is 
admissible  in  this  case  ;  and,  for  the  purpose  of  ascertaining  this,  it 
is  well  to  learn  precisely  what  this  case  is  and  what  is  the  purpose  of 
the  testimony  proposed.  There  are  some  facts  of  which  this  tribu 
nal  can  take  judicial  notice.  One  is  the  laws  of  the  State  of  Florida. 
What  are  they  in  reference  to  this  subject,  and  what  was  done  in  pur 
suance  of  them,  and  what  is  proposed  to  be  done  by  testimony — as  it 
is  called — for  the  purpose  of  overthrowing  what  was  done  in  pursu 
ance  of  the  laws  of  that  State  ?  • 

In  the  first  place,  its  statute  by  a  clause  a  part  of  which  I  will 
take  the  liberty  of  reading,  for  the  creation  of  an  ultimate  returning 
board  having  capacity  to  certify  the  number  of  votes  cast  for  electors 
and  who  were  elected ;  and,  if  that  board  performed  its  duty,  how 
ever  mistaken,  however  crowded  with  error,  however,  if  you  please, 
tainted  by  fraud,  if  that  board  discharged  the  duty  cast  upon  it  by 
law,  and  did  ascertain  and  did  declare  how  many  votes  for  particular 
sets  of  electors  were  cast,  and  did  certify  and  declare  who  were  the 
persons  elected  electors,  that  ends  all  inquiry  here,  assuming  that 
you  may  go  behind  the  governor's  certificate,  unless,  indeed,  you  may 
retreat  behind  the  action  of  the  returning  board,  the  final  tribunal  for 
that  purpose  created  by  the  laws  of  the  State,  and  ascertain  whether 
it  did  or  did  not,  according  to  your  judgment,  faithfully  return 
the  votes  cast  and  faithfully  declare  who  were  the  persons  elected. 
I  read  as  to  the  constitution  of  the  returning  board,  may  it  please 
this  tribunal,  from  the  fourth  section  of  the  act  of  1872,  which  will 
be  found  on  page  2  of  the  report  made  by  Mr.  Sargent  of  the  Senate. 
It  provides  that: 

On  the  thirty-fifth  day  after  the  holding  of  any  general  or  special  election  for  any 
State  officer,  member  of  the  Legislature,  or  Kepre.sentative  in  Congress,  or  sooner, 


if  the  returns  shall  have  been  received  from  the  several  counties  wherein  elections 
shall  have  been  held,  the  secretary  of  state,  attorney-general,  and  the  comptroller 
of  public  accounts,  or  any  two  of  them,  together  with  any  other  member  of  the 
cabinet  who  may  bo  designated  by  them,  shall  meet  at  the  office  of  the  secretary  of 
state,  pursuant  to  notice  to  be  given  by  the  secretary  of  state,  and  form  a  board  of 
State  canvassers,  and  proceed  to  canvass  the  returns  of  said  election — 

Will  your  honors  mark  the  language — 

and  determine  and  declare  who  shall  have  been  elected  to  any  such  office  or  as 
such  member,  as  shown  by  such  returns.  If  any  such  returns  shall  be  shown  or 
shall  appear  to  be  so  irregular,  false,  or  fraudulent  that  the  board  shall  be  unable 
to  determine  the  true  vote  for  any  such  officer  or  member,  they  shall  so  certify,  and 
shall  not  include  such  return  in  their  determination  and  declaration. 

There  was  committed  to  this  board  by  that  statute  a  capacity  to 
determine  and  decide — finally  and  conclusively — how  many  lawful 
votes  were  cast  and  who  were  elected  electors.  A  majority  of  that 
board  were  authorized  to  perform  that  duty ;  and  it  appears  here,  be 
fore  this  tribunal,  that  in  the  discharge  of  that  duty,  a  majority  of 
its  members — omitting  the  attorney-general — did,  in  the  exercise  of 
the  discretion  thus  confided  to  them,  certify  and  declare  that  the 
Hayes  electors,  so  called,  were  duly  elected  by  the  lawful  voters  of 
that  State.  If  we  go  behind  that  finding  we  disregard  the  determi 
nation  of  a  tribunal  which  the  State  of  Florida  has  declared  by  her 
Legislature  to  be  empowered  to  determine  what  persons  she  has  con 
stituted  to  declare  her  will  in  the  electoral  college  ;  for  it  is  her  will 
as  a  sovereign  State — wise  or  foolish — which  is  to  be  thus  expressed. 

Now,  it  seems  to  me  that  if  this  Commission  shall  go  behind  the  find 
ing  of  that  board  it  will  go  behind  it  upon  the  theory  that  it  may  exer 
cise  its  will,  irrespective  of  judicial  power,  upon  some  theory  that  it 
has  the  capacity  of  both  Houses  or  of  either  House  to  do  as  it  pleases, 
not  in  subjection  to  the  Constitution  of  the  country,  but  in  obedience 
to  an  unlicensed  will  and  purpose ;  and  I  expect,  as  my  brother  Black 
did,  a  conclusion  which  will  rescue  this  tribunal  from  falling  into  so 
fatal  an  error  as  that  of  undertaking  to  interfere  with  the  final  decla- 


ELECTORAL  COMMISSION. 


ration  of  the  tribunal  which  the  Legislature  of  a  State  has  declared 
shall  finally  and  at  last  certify  who  may  deposit  the  expression  of  its 
will  in  the  national  ballot-box,  as  it  has  been  called. 

I  suppose  it  will  not  be  denied — I  presume  no  one  will  deny — that 
a  State  of  this  Union,  by  its  Legislature,  may  in  any  mode  it  pleases 
declare  who  shall  be  its  instrument  for  selecting  electors.  I  suppose 
that,  if  the  State  of  Florida  had  declared  that  one  of  its  sheriff's 
should  select  the  electors,  that  would  be  final  when  done.  Peradven- 
ture  some  theorist,  upon  the  notion  that  you  should  go  to  the  people 
as  the  source  of  power  to  elect  judges  as  well  as  all  other  officers, 
might  say  such  a  mode  of  selection  aud  appointment  would  hardly 
be  in  harmony  with  republican  institutions ;  but  I  think  he  who 
would  venture  to  go  behind  the  expressed  will  of  the  State  as  to  the 
method  in  which  the  electors  should  be  appointed  would  find  himself 
engaged  in  an  effort  to  invade  its  sovereignty  and  interfere  with  the 
supremacy  of  a  State. 

I  am  perfectly  aware  that,  if  this  tribunal  were  empowered  to  ap 
point  committees  by  which  it  could  through  them  proceed  to  differ 
ent  States  and,  irrespective  of  the  rules  of  evidence  or  of  law,  gather 
together  testimony,  and  then  if  it  had  the  capacity  upon  that  to  do 
as  it  should  please,  it  might  go  behind  and  overset  any  final  lawful 
declaration  of  any  returning  board  in  any  State  in  the  country.  But 
Congress,  while  it  conferred  in  the  shape  of  an  unknown  quantity  a 
jurisdiction  upon  this  tribunal — declaring  it  should  possess  the  powers, 
if  any,  possessed  by  the  two  Houses,  or  either,  for  the  purpose  of  per 
forming  the  duty  of  counting  the  vote — took  care  not  to  permit  it  to 
found  its  conclusion  upon  testimony  inadmissible  in  a  court  of  jus 
tice.  The  distinction  between  the  uncertainty  of  language  which 
conferred  jurisdiction  and  the  certainty  and  precision  of  language 
which  conferred  power  to  receive  testimony  is  marked  and  apparent, 
and  I  will,  with  your  honors'  permission,  refer  to  it. 

All  such  certificates,  votes,  and  papers  so  objected  to,  and  all  papers  accompany 
ing  the  same,  together  with  such  objections,  shall  be  forthwith  submitted  to  said 
Commission,  which  shall  proceed  to  consider  the  same,  with  the  same  powers,  if  any, 
now  possessed  for  that  purpose  by  the  two  Houses  acting  separately  or  together,  and, 
by  a  majority  of  votes,  decide  whether  any  and  what  votes  from  such  State  are  the 
votes  provided  for  by  the  Constitution  of  the  United  States,  aud  how  many  and 
what  persons  were  duly  appointed  electors  in  such  State,  and  may  therein  take  into 
view  such  petitions,  depositions,  and  other  papers,  if  any,  as  shall,  by  the  Consti 
tution  and  now  existing  law,  be  competent  and  pertinent  in  such  consideration. 

"  Competent  and  pertinent "  in  view  of  what  ?  In  view  of  the  action 
of  Congress  through  its  committees?  I  mean  no  disrespect  when  I 
say  that  such  mode  permits  the  breath  of  calumny  to  be  blown  in  a 
way  which,  thank  God,  courts  of  justice  take  care  to  prevent ;  and 
your  honors  being  endowed  with  power  to  hear  depositions,  papers, 
and  petitions  competent  and  pertinent  within  the  meaning  of  the 
Constitution  and  existing  laws — it  being  not  expressed  precisely  what 
they  are — will  look  at  those  rules  of  law  which  guide  in  administer 
ing  justice  upon  the  bench,  and  will  determine  what  are  the  deposi 
tions  and  papers  which  you  may  thus  receive.  Turning  over  the  pages 
of  the  law,  ycutind,  printed  in  characters  unmistakable,  your  utter  in 
capacity  to  receive  other  proof  than  that  which  the  common  law  has 
sanctified  by  usage  and  through  the  lips  of  its  judges  as  fit  to  be  em 
ployed  to  affect  the  rights  of  men,  to  say  nothing  of  the  rights  of 
States  and  nations.  Here  we  have  a  tribunal  of  special  and  limited 
jurisdiction,  incapable  of  moving  out  of  the  narrow  orbit  in  which  it 
is  placed,  proceeding  for  a  particular  purpose,  liable  in  the  language 
of  the  act,  theoretically  but  not  practically,  to  have  its  decision  over 
turned  by  a  concurrent  order  of  the  two  Houses  acting  finally,  and 
therefore  a  tribunal  thus  created  exerts  no  powers  not  specially  con 
ferred  and  can  receive  no  testimony  not  in  harmony  with  principles 
of  law  long  since  settled. 

Then,  may  it  please  your  honors,  your  jurisdiction  is  to  count  the 
electoral  votes ;  your  power  is  in  counting  to  resort  to  such  proof,  if 
any,  as  the  Constitution  and  laws  permit.  You  are  dealing  with  a 
delicate  subject  when  the  question  of  jurisdiction  is  reached.  You 
are  dealing  with  the  supremacy  of  a  State  when  you  undertake  to 
touch  its  final  tribunal  for  the  purpose  of  overhauling  and  upsetting 
its  action. 

Now  I  have  in  a  general  way,  perhaps  very  imperfectly,  presented 
my  view  of  the  jurisdiction  and  the  power  and  the  purpose  of  this 
tribunal.  I  propose  to  say  a  very  few  words  in  addition. 

I  have  said  that  the  purpose  of  the  testimony  offered  is  to  go  be 
hind,  not  merely  the  governor's  certificate— for  that  undoubtedly, 
upon  questions  of  forgery,  upon  questions  of  mistake,  upon  many 
questions,  this  tribunal  could  deal  with — but,  designing  to  get  behind 
that,  the  purpose  is  to  get  behind  the  action  of  that  tribunal  which 
the  State  has  set  up,  and  to  cancel  its  finding,  or  else  the  testimony 
offered  is  senseless  and  worthless.  What  is  specially  offered  ?  To 
maintain  the  right  to  have  the  votes  counted  for  Mr.  Tilden,  we  have 
before  us  the  certificate  of  the  attorney -general  of  Florida,  who  dis 
sented  from  th«  majority  of  the  returning  board,  stating  in  that  cer 
tificate — with  frankness,  as  he  does — that  there  is  no  method  of  au 
thenticating  their  title  beyond  his  mere  certificate,  by  obtaining  the 
certificate  of  the  governor,  because  it  wduld  be  in  violation  of  the  laws 
of  Florida  for  him  to  certify  to  the  election  of  electors  who  had  been 
returned  as  such  by  but  a  minority  of  the  board  empowered  to  perform 
that  duty. 

What  next  do  we  find  ?  We  find  a  statute  of  the  State  of  Florida 
thrust  upon  us,  passed  on  the  17th  of  January— long  after  these  elect 
ors  had  voted — authorizing  a  new  canvass — of  what  ?  In.  harmony 


with  the  authority  to  canvass  previously  authorized  ?  No,  but  a  can 
vass  of  the  votes — precisely  indicating  them — then  in  the  office  of  the 
secretary  of  state  ;  and  we  find  under  that  act  a  board  of  canvassers 
meeting ;  a  canvass  made  and  certified,  stating  the  Tildeu  electors  to 
have  been  found  by  that  board  on  the  25th  of  January  to  have  been 
elected  in  the  November  previous.  That  is  the  authority  for  going 
behind  the  certification  of  the  electors  by  the  lawful  returning  board. 
Coupled  with  this  is  a  proceeding  by  quo  warranto,  ultimating  in  a 
judgment  on  the  25th  of  January  declaring  that  these  persons  who 
performed  all  their  duties  on  the  6th  of  December  were  not  then 
electors,  but  that  all  their  acts  were  illegal  and  invalid ;  and  the 
learned  gentleman  from  Virginia  [Mr.  Tucker]  who  yesterday  ad 
dressed  this  tribunal  said  that  decision  swept  away  all  prior  acts  of 
these  officers  de  facto  ;  but  for  this  he  gave  us  no  authority.  My  mem 
ory  immediately  carried  me  to  case  after  case  in  which  it  had  been 
held  that  where  an  officer  de  facto  is  ousted  by  such  a  proceeding,  all 
his  prior  acts  are  necessarily  considered  as  valid  and  binding.  Society 
could  not  exist  without  the  application  of  such  a  rule.  Judges  go 
upon  the  bench,  property  passes  under  their  decrees,  men  are  hung 
by  their  judgments,  and  finally  some  one  after  a  litigation  of  years 
obtains  possession  of  the  office.  Is  the  virtue  of  that  decree  to  sweep 
away  the  past,  restore  to  life,  yield  back  property  I  No.  So  here  the 
act  of  the  electors  lawfully  appointed,  declared  to  be  such  in  the 
mode  prescribed  by  the  Legislature  of  Florida,  doing  what  they  were 
commanded  to  perform,  is  valid  and  irreversible. 

Not  content  with  this  effort  to  succeed  by  quo  watranto  through  the 
aid  of  an  active  and  willing  court,  or  with  the  finding  of  the  new 
returning  board,  the  Legislature  passed  another  act  declaring  the  can 
vass  of  the  latter  board  valid  and  binding,  aud  the  Tilden  electors  by 
it  declared  elected  to  be  duly  qualified  electors  of  the  State.  These 
judicial  and  statutory  contrivances  are  unavailing  and  cannot  dis 
turb  the  electoral  votes  duly  cast. 

The  alleged  fault  of  the  lawful  returning  board  was  not  fraud — 
at  which  my  friends  are  so  shocked — but  mistake.  After  electors  are 
thus  appointed  lawfully,  but  possibly  by  a  mistaken  view  of  the  law 
by  the  board  declaring  their  election,  its  conclusion  must  forever 
stand.  The  electors  who  by  virtue  of  such  an  appointment  have  cast 
their  votes  are  not  to  allow  the  day  prescribed  by  Federal  law  to  cast 
the  vote  of  the  State  to  pass,  and  the  vote  of  the  State  to  be  lost  upon 
the  theory  that  possibly  their  work  may  be  undone  by  subsequent 
judicial  action  or  ex  post  facto  legislation. 

It  seems  to  me,  may  it  please  your  honors,  in  view  of  the  jurisdic 
tion  and  capacity  of  this  tribunal,  in  view  of  its  powers  to  take  tes 
timony,  in  view  of  the  purpose  of  introducing  this  testimony,  which 
I  have  undertaken  to  state,  that  the  application  to  introduce  testi 
mony  should  be  overruled. 

The  PRESIDENT.  One  hour  aud  thirty-two  minutes  are  left,  Mr. 
Evarts,  of  the  time  allotted  to  your  side. 

On  motion  of  Mr.  Justice  STRONG,  the  Commission  adjourned  until 
eleven  o'clock  on  Monday  morning  the  5th  instant. 


MONDAY,  February  5,  1877. 

The  Commission  met  at  eleven  o'clock  a.  m.,  pursuant  to  adjourn 
ment,  all  the  members  being  present. 

The  following  counsel  also  appeared : 
Hon.  Charles  O'Conor,  of  New  York,  ^ 

Hon.  Jeremiah  S.  Black,  of  Pennsylvania,  j  Of  counsel  in  opposi- 
RichardT.  Merrick,  esq.,  of  Washington,  D.  C.,  $•  tion  to  certificate 
Ashbel  Green,  esq.,  of  New  Jersey,  No.  1. 

William  C.  Whitney,  esq.,  of  New  York, 
Hon.  \Villiani  M.  Evarts,  of  New  York,  ^  Of  , 

Hon.  E.  W.  Stoughton,  of  New  York, 

Hon.  Stanley  Matthews,  of  Ohio,  5°°  , 

Hon.  Samuel  Shellabarger,  of  Ohio. 

The  Journal  of  Saturday's  proceedings  was  read  and  approved. 

The  PRESIDENT.  The  concluding  counsel  on  the  part  of  the  ob 
jectors  to  the  first  certificate  is  entitled  to  an  hour  and  forty  minutes. 
Mr.  Evarts,  on  the  other  side,  who  will  speak  first,  is  entitled  to  an 
hour  and  thirty-two  minutes. 

Mr.  EVARTS.  Mr.  President  and  gentlemen  of  the  Commission, 
the  order  of  the  Commission  inviting  the  attention  of  counsel  lays 
out  for  their  consideration  three  topics: 

First,  whether  under  the  powers  possessed  by  the  Commission  any 
evidence  beyond  that  disclosed  in  the  three  certificates  from  the  State 
of  Florida  which  were  opened  by  the  President  of  the  Senate  in  the 
presence  of  the  two  Houses  of  Congress  and  under  the  authority  of 
the  recent  act  of  Congress  are  transmitted  to  this  Commission,  can  be 
received; 

Second,  if  any  can  be  received,  what  that  evidence  is ;  and 

Third,  what  evidence  other  than  these  certificates,  if  any,  is  now 
before  the  Commission. 

I  will  dispose  of  the  last  question  in  the  order  of  the  Commission  first- 
It  requires  but  brief  attention  to  express  pur  views  sufficiently,  and 
will,  I  think,  require  but  little  consideration,  in  point  of  time,  how 
ever  important  it  may  be  in  substance,  from  the  Commiseion. 


30 


ELECTORAL  COMMISSION. 


It  is  suggested  that  certain  packages  of  papers  which  were  borne 
into  the  presence  of  the  Commission  by  the  messenger  that  brought 
the  certificates  and  the  objections  are  already  evidence  in  the  pos 
session  of  the  Commission.  What  those  packages  contain,  what  de 
gree  of  authenticity,  or  what  scope  of  efficacy  is  to  be  imputed  to  or 
claimed  for  them  as  particular  matters  of  evidence  and  particular 
forms  of  proof  is  unknown  to  us  and  unknown  to  the  Commission. 
The  proposition  upon  which  it  is  claimed  that  this  evidence,  what 
ever  it  may  be — subject  undoubtedly  to  discussion  and  to  rejection  by 
the  Commission  as  not  pertinent  and  not  important  and  not  authen 
tic — the  proposition  is  that,  being  mentioned  in  one  of  the  objections 
interposed  against  the  first  certificate  as  matter  on  which  the  objec 
tion  was  founded,  instead  of  being  a  warrant  as  it  were  to  the  ob 
jector  which  he  vouches,  he,  the  objector,  thereby  makes  it  a  part  of 
the  evidence  before  the  Commission  ;  and  our  learned  friend  Judge 
Black  has  proposed  that,  except  as  against  objectors  who  prevail  in 
their  arts  and  efforts  in  common-law  courts  and  whom  he  has  been 
polite  enough  to  designate  as  "  mapperadoes,"  this  evidence  is,  by  au 
thentic  principles  of  jurisprudence,  made  evidence  by  this  attachment 
to  this  objection.  He  instances  the  case  of  a  bill  in  equity  which  may 
append  exhibits  and  which,  of  course,  brings  the  exhibits  as  a  part  of 
itself  into  the  possession  of  the  court.  But  that,  thereby,  they  were 
made  evidence  any  more  than  his  bill,  except  upon  such  weight  as 
should  be  imputed  to  them  by  the  answer  of  the  defendant  admitting, 
or  not  denying,  or  establishing  a  rule  of  necessary  contradiction  by 
two  witnesses,  instead  of  one,  I  have  never  heard  that  the  plaintiff 
made  the  exhibits  evidence  in  the  cause  by  appending  them  to  his 
bill. 

Now,  the  provisions  of  the  recent  act  that  at  all  touch  this  matter 
are  very  few.  In  the  first  place,  the  objections  are  not  conclusive  of 
anything.  They  bind  nobody.  They  are  merely  the  action  upon  which 
the  reference  to  this  Commission  arises.  If  there  be  no  objection,  the 
case  provided  for  the  exercise  of  your  authority  is  not  produced.  If 
the  objection  is  made,  however  inartificial  or  imperfect,  the  case  has 
arisen;  but  that. the  objection  narrows  and  limits  and  provides  the 
issue  or  affects  the  controversy  upon  which  your  jurisdiction  attaches, 
is  a  pure  fabrication  out  of  utterly  unsubstantial  and  immaterial  sug 
gestions  in  the  law.  Certainly  if  volunteer  objectors  on  one  side  and 
the  other  were  permitted  to  lay  down  the  issues  aud  adduce  the  evi 
dence  and  make  up  the  packages  of  the  evidjeuce,  it  would  be  a  strange 
commitment  of  your  great  authority  to  casual,  to  rash,  to  disingenu 
ous  suggestion. 

So  much,  I  think,  entirely  disposes  of  the  question  of  whether  there 
is  any  evidence  here.  The  other  question,  as  to  whether  evidence  in 
tho  possession  of  either  or  both  of  the  Houses  of  Congress,  in  the 
shape  of  committees'  reports  or  conclusions  of  either  of  those  great 
bodies,  in  any  form,  is  transmissible,  and  may  be  proposed  to  this 
Commission  and  may  be  accepted  and  received  by  it  after  it  is  un 
folded,  after  it  is  understood,  after  the  paper  is  scrutinized  and  is 
opposed,  is  a  question  that  is  but  a  subordinate  part  of  the  main 
question,  whether  any  evidence  beyond  the  certificates  can  be  re 
ceived. 

I  wish  to  preclude,  at  the  outset,  anything  that  should  carry  for  a 
moment  the  impression  that  there  has  been  overpassed  by  some  stroke 
of  astuteness  or  of  diligence  fflie  question  of  what  you  can  receive 
and  what  you  must  reject.  I  find  myself  then  unimpeded  in  the  in 
quiry,  as  open  to  me  as  it  is  open  to  you,  whether  any  evidence  can 
be  received,  and  if  any  what,  beyond  the  certificates  opened  by  the 
President  of  the  Senate.  On  that  question  I  shall  think  it  quite  at 
tentive  to  the  instruction  of  the  Commission  and  much  more  suitable 
to  a  practical  and  definite  discussion  and  a  practical  and  definite  de 
termination  by  this  Commission,  that  whatever  of  general  principles, 
and  however  far-reaching  the  decision  on  those  general  principles  in 
this  matter  of  evidence  may  be,  the  evidence  that  is  now  actually 
proposed  should  be  taken  as  the  apparent  limit  of  the  inquiry  whether 
evidence  should  be  received,  not  from  any  particular  defect  as  to  form 
or  manner  of  proffer,  but  as  to  whether 'it  falls  within  evidence  that 
may  be  received  extraneous  to,  in  addition  to,  the  certificates  opened 
by  the  President  of  the  Senate.  I  am  enabled  by  the  memorandum 
presented  by  the  learned  counsel,  Mr.  O'Conor,  which  is  found  on  the 
forty-second  page  of  the  CONGRESSIONAL  RECORD  of  yesterday,  to 
present  the  quality  and  character,  the  office  aud  effort,  of  extraneous 
evidence  that,  it  is  supposed  might  be,  within  the  powers  of  this  Com 
mission,  received  and  entertained  by  it. 

In  the  first  place,  he  excludes  from  the  area  of  consideration  one 
of  the  certificates,  to  wit,  that  which  contains  the  vote  of  the  Tilden 
electors  ;  for  that  they  need  no  extrinsic  proof,  and  it  is  mentioned 
only  that  it  may  be  excluded.  Then,  secondly,  there  are  statements 
concerning  the  quo  warranto  smt  of  Florida,  commenced  on  the  6th  of 
December  and  ending  on  the  25th  of 'January.  In  regard  to  that  the 
record  is  supposed  to  contain  in  itself  the  particular  means  of  its  use 
according  to  established  rules  of  jurisprudence  as  a  record  or  as  an 
authority.  It  is  suggested  in  respect  to  that,  therefore,  that  ex 
traneous  proof  only  would  need  to  reach  the  point  of  the  precise  hour 
of  the  day  on  the  Gth  of  December  on  which  the  writ  commencing 
that  action  was  served,  and  on  our  part  perhaps  proof  that  an  appeal 
had  been  taken  from  that  judgment  and  is  still  pending. 

Then  are  enumerated  some  other  matters  that  require  no  proof  as 
it  is  supposed.  Again,  the  acts  of  the  Legislature  mentioned  are  pub 
lic  acts  and  matters  of  record ;  and  it  is  supposed  that  they  are  regu 


larly  before  the  Commission,  so  far  at  least  as  they  appear  in  the  third 
certificate,  by  virtue  of  that  transmission,  and  besides  I  suppose  that 
they  are  matters  of  public  record  as  the  action  of  the  Legislature  of 
the  State. 
We  come  now  to  the  following : 

Fifthly.  The  only  matters  which  the  Tihlen  electors  desire  to  lay  before  the 
Commission  by  evidence  actually  intrinsic  will  now  be  stated. 

1.  The  board  of  State  canvassers,  acting  on  certain  erroneous  views  when  making 
their  canvass,  by  which  the  Hayes  electors  appeared  to  be  chosen,  rejected  wholly 
the  returns  from  the  county  of  Manatee  and  parts  of  returns  from  each  of  the  fol 
lowing  counties — 

Naming  them — 

In  so  doing  the  said  State  board  acted  without  jurisdiction,  as  the  circuit  and 
supreme  courts  in  Florida  decided. 

That  is,  by  their  recent  judgments  in  mandamus  and  quo  warranto. 

It  was  by  overruling  and  setting  aside  as  not  warranted  by  law  these  rejections, 
that  the  courts  of  Florida  reached  their  respective  conclusions  that  Mr.  Drew  was 
elected  governor,  that  the  Hayes  electors  were  usurpers,  and  that  the  Tildeu  elect 
ors  were  duly  chosen.  No  evidence  that  in  any  view  could  be  called  extrinsic  is  be 
lieved  to  be  needful  in  order  to  establish  the  conclusions  relied  upon  by  the  Tilden 
electors,  except  duly  authenticated  copies  of  the  State  canvass.  That  is — 

Mr.  O'Conor  adds — 

the  erroneous  canvass  as  we  consider  it,  "  and  of  the  returns  from  the  above-named 
four  counties,  one  wholly  and  others  in  part  rejected  by  said  State  canvassers." 

Mr.  O'CONOR.    That  is  your  canvass  that  you  rely  on. 

Mr.  EVARTS.     So  I  understand.    I  was  reading  your  language. 

And  of  the  returns  from  the  above-named  four  counties,  one  wholly  and  others 
in  part  rejected  by  said  State  canvassers. 

It  is  proposed,  therefore,  as  the  matter  extraneous  that  it  is  desired 
to  introduce,  and  that  it  is  claimed  is  open  to  your  consideration, 
not  that  the  certificate  of  Governor  Stearns  falsifies  the  fact  he  was 
to  certify  ;  not  that  it  falsifies  the  record  that  makes  the  basis  of 
the  fact  which  he  was  to  certify  to ;  but  that  the  record  at  the  time 
on  which  by  law  he  was  to  base  his  certificate,  departing  from  which 
his  certificate  would  be  false,  is  itself  to  be  penetrated  or  surmounted 
by  extraneous  proof,  showing  that  by  matters  of  substance  occurring 
in  the  progress  of  the  election  itself  errors  or  fraiids  intervened.  This 
means,  that  somewhere  in  the  steps  of  the  election  between  the  de 
posit  of  the  ballots  in  the  boxes  at  the  precincts  and  the  original 
computation  of  the  contents  of  those  boxes  there,  aud  the  submission 
to  a  correct  canvass  in  a  county  of  the  precincts  thus  canvassed  at 
their  own  ballot-boxes,  or  between  the  returns  of  the  county  can 
vass  to  the  State  canvassers,  or  in  the  action  of  the  State  canvassers 
in  the  final  computation  of  the  aggregates  to  ascertain  the  plurality 
of  votes  as  for  one  or  the  other  candidate,  and  so  declare  the  result 
of  the  election,  frauds  or  mistakes  occurred.  In  other  words,  where 
in  the  process  of  the  election  itself,  from  stage  to  stage,  on  the  very 
matter  of  right  and  on  the  question  of  title  dejitre  there  has  occurred 
matter  of  judicial  consideration  which  should  be  inquired  into  here. 
For  I  need  not  say  that,  however  simple  and  however  limited  the  step 
to  be  taken  behind  the  record  of  the  final  State  canvass,  to  serve  the 
needs  and  to  accomplish  the  justice  as  proposed  by  the  learned  coun 
sel  for  the  objectors  against  the  Hayes  certificate,  the  principle  upon 
which  this  evidence  is  offered,  if  their  occasions  required  it,  if  justice 
required  it,  if  the  powers  of  this  Commission  tolerated  it,  would  carry 
the  scrutiny  and  the  evidence  to  whatever  point  this  complete  cor 
rection  or  evisceration  of  the  final  canvass  would  demand. 

I  am  at  once,  therefore,  relieved  from  any  discussion  as  practical 
in  this  case,  except  so  far  as  illustration  or  argument  may  make  it 
useful  pro  or  con  of  any  consideration  whether  a  governor's  certificate 
could  be  attacked  as  itself  being  not  a  governor's  certificate,  but  a 
forgery.  That  is  not  going  behind  the  governor's  certificate.  That  is 
going  in  front  of  the  governor's  certificate  and  breaking  it  down  as 
no  governor's  certificate.  That  is  not  the  question  you  are  to  con 
sider  here.  There  is  certainly  no  reason,  on  principle,  that  when  a 
governor's  certificate  is  required  for  any  solemnity  or  collusiveness 
of  authentication,  a  forged  paper  should  be  protected  because  it  is 
called  a  governor's  certificate.  Neither  does  their  offer  of  proof  sug 
gest  any  debate  as  to  whether  the,  fact  to  l>c  certified  by  the  governor,  the 
substance  that  his  certificate  is  to  authenticate,  can  be  made  the  sub 
ject  of  extraneous  evidence  with  a  view  to  show  that  the  fact  to  be 
certified  is  discordant  with  the  certificate,  and  that  the  fact  must 
prevail  over  the  interpolated  false  certificate  of  the  fact. 

There  can  be  no  escape  from  this  criticism  on  their  offer  of  proof, 
unless  our  learned  opponents  ask  your  assent  to  a  claim  that  when 
the  act  of  Congress  requires  the  governor's  certificate  as  to  the  list  of 
persons  that  have  been  appointed  electors  it  requires  from  the  gover 
nor  a  certificate  that  every  stage  and  step  of  the  process  of  the  elec 
tion  has  been  honest  and  true  and  clear  and  lawful  and  effectual,  and 
free  from  all  exception  of  fraud.  Unless  you  make  that  the  fact  to  be 
certified  by  the  governor  you  lay  no  basis  for  introducing  evidence  of 
discord  between  the  fact  to  be  certified  and  the  fact  that  has  been  cer 
tified.  Without  disguise,  therefore,  the  proposition  is  that,  whether 
or  no  there  might  be  occasion  for  extraneous  proof  to  falsify  a  gov 
ernor's  certificate  on  the  grourfd  of  its  own  spurious  character,  or  on 
the  ground  of  its  falsely  setting  forth  the  fact  professed  to  be  stated, 
and  admitting  the  governor's  certificate  to  be  genuine,  and  admitting 
the  final  canvass,  duly  filed  and  recorded,  to  be  in  accord  with  the 
certificate,  this  Commission  stands  at  the  same  stage  of  inquiry  and 
with  the  same  right  to  investigate  the  election  itself  to  the  bottom 
as  a  judicial  court  exercising  the  familiar  jurisdiction  of  quo  warranto. 


ELECTORAL  COMMISSION. 


i  ALl — - 


31 


There  is  also  a  suggestion  that  extraneous  proofs  may  be  necessary 
on  the  point  "  that  Mr.  Humphreys,  one  of  the  Hayes  electors,  held 
office  under  the  United  States ;"  and,  in  our  behalf,  it  is  then  sug 
gested  by  the  learned  counsel  that  we  might  need  to  introduce  evi 
dence  that  he  had  resigned.  The  interposition  of  this  objection  was 
a  surprise  to  us ;  for  it  was  a  matter  of  inquiry  before  the  Florida 
State  canvassing  board  on  the  4th  day  of  December,  1876,  antecedent 
to  the  completion  of  the  final  and  conclusive  canvass.  The  evidence 
thus  taken  I  am  able  to  read  from  page  32  of  the  CONGRESSIONAL 
RECORD  of  Saturday,  in  the  report  of  the  minority  of  the  House  com 
mittee. 

Extract  from  testimony  before  the  Florida  State  canvassing  board,  Monday,  De 
cember  4,  1876. 
FREDEBJCK  C.  HUMPHREYS  sworn  for  the  republicans. 

Examined  by  the  CHAIRMAN  : 

Question.  Are  you  shipping  commissioner  for  the  port  of  Pentsacola  ? 

Answer.  I  am  not.  , 

Q.  "Were  you  at  one  time  1 

A.  I  was. 

Q.  At  what  time  ? 

A.  Previous  to  the  7th  of  November. 

Q.  "What  time  did  you  resign  ? 

A.  The  acceptance  of  my  resignation  was  received  by  me  from  Judge  "Woods 
about  a  week  or  ten  days  before  the  day  of  election,  which  I  have  on  file  in  my 
office.  I  did  not  think  of  its  being  questioned,  or  I  would  have  had  it  here.  He 
stated  in  his  letter  to  me  that  the  collector  of  customs  would  perform  the  duties  of 
the  office,  and  the  collector  of  customs  has  since  done  so. 

On  the  nature  of  an  objection  for  disqualification  as  a  subject  of 
proof  before  the  two  Houses  or  the  President  of  the  Senate,  in  their 
attribution  of  authority  under  the  clause  of  the  Constitution  govern 
ing  their  joint  meeting,  a  word  needs  to  be  said  ;  and  I  will  attempt 
at  the  same  time  to  answer  the  inquiry  made  very  pertinently  and 
forcibly  by  Mr.  Commissioner  THURMAN  the  other  day. 

There  is,  as  I  understand  the  matter,  (and  I  will  not  anticipate  a 
discussion  that  must  come  later  in  this  argument, )  a  consideration  in 
the  first  place  of  whether  the  Houses  of  Congress  in  the  matter  of  the 
count  at  the  time  of  the  meeting  for  the  constitutional  duty  of  open 
ing  and  counting  the  votes  have  any  power  by  law  for  any  interven 
tion  or  any  methods  of  extraneous  proof.  Whatever  may  be  thought 
as  to  whether  disqualifications  of  this  nature  were  proper  for  the 
scrutiny  of  the  votes  to  be  counted,  and  however  proper  it  might  have 
been  for  Congress  to  provide  by  law  for  the  production  of  extraneous 
proof  in  that  transaction,  and  for  the  manner  in  which  it  might  be 
adduced  and  considered,  there  is  no  act  of  Congress  on  the  subject. 
Our  proposition  is  that  at  that  stage  of  the  transaction  of  the  elec 
tion  the  two  Houses  cannot  entertain  any  subject  of  extraneous  proof. 
The  process  of  counting  must  go  on.  If  a  disqualified  elector  has 
passed  the  observation  of  the  voters  in  the  State,  passed  the  observa 
tion  of  any  sentinels  or  safeguards  that  may  have  been  provided  in 
the  State  law,  that  when  these  are  all  overpassed  and  the  vote  stands 
on  the  presentation  and  authentication  of  the  Constitution — that  is 
upon  the  certificate  of  the  electors  themselves  and  of  the  governor — 
it  must  stand  unchallengeable  and  unimpeachable  in  the  count.  Of 
course  the  provision  of  means  of  inquiry  at  that  stage  by  Congress,  if 
they  had  thought  fit  to  provide  means,  would  have  involved  the  de 
lays  of  such  inquiry,  the  proof  of  the  alleged  infirmity  in  the  elector, 
and  the  counter-proof  of  its  removal,  all  matters  ordinarily  manage 
able  perhaps  in  point  of  time  not  leading  to  much  prolixity,  but 
still,  in  supposable  cases,  involving  contradiction  of  witnesses  and  dis 
cussion  as  to  the  effect  of  testimony  which  would  involve  delay. 

Mr.  Commissioner  THURMAN  asked  this  question :  "Suppose  that 
the  electoral  vote,  when  opened,  disclosed  the  fact  that  the  four  elect 
ors  were  then  present  members  of  Congress  and  had  been  such  mem 
bers  at  the  time  of  appointment  as  electors,  what  then?"  That  in 
volves  an  element,  you  will  perceive,  that  is  not  touched  by  the  con 
siderations  that  belong  to  proof.  That  impeachment  of  qualification 
in  the  electors  supposed  is  of  ocular  and  personal  observation  at  all 
times  by  the  President  of  the  Senate,  and  by  the  two  Houses  of  Con 
gress,  and  is  of  the  record  at  the  Capitol.  But  if  the  instance  is 
merely  that  of  a  member  of  Congress  not  presently  a  member  and 
thus  involving  extraneous  proof  of  his  retirement  from  the  office  in 
season  to  qualify  him  for  appointment  as  elector,  then  the  case  falls 
back  into  the  class  of  cases  which  I  have  just  considered,  where  there 
has  been  no  provision  for  extraneous  proof  and  where  the  office  ac 
corded  to  the  governor's  certificate  cannot  be  overpassed  without  ex 
traneous  proof.  There  is,  as  we  suppose,  no  safe  rule  except  to  say 
that  this  injunction  laid  upon  the  States  that  they  shall  not  appoint 
the  excluded  persons  does  not  execute  itself  under  the  Constitution, 
and  if  unexecuted  in  the  laws  of  the  State  is  only  to  be  executed  by 
laws  of  Congress  providing  the  means  and  time  and  place  for  proof 
and  determination  on  the  fact  of  disqualification.  This  is  all  that  I 
need  to  say  on  the  question  of  personal  disqualification. 

I  have  said  that  this  Commission  cannot  receive  evidence  in  addi 
tion  to  the  certificates  of  the  nature  of  that  which  is  offered ;  that  is, 
evidence  that  goes  behind  the  State's  record  of  its  election,  which 
has  been  certified  by  the  governor  as  resulting  in  the  appointment  of 
these  electors.  One  reason  of  this  proposition,  and  on  which  suffi 
ciently  it  rests,  is  that  that  is  a  judicial  inquiry  into  the  very  matter 
of  right,  the  title  to  office.  This  inquiry  accepts  the  prevalence  of 
the  formal,  the  certificated,  the  recorded  title  of  the  electors,  and 
proposes  then  to  investigate  as  inter  paries,  as  a  matter  of  right,  which 


of  two  competing  lists  of  electors  is  really  elected  on  an  honest  and 
searching  canvass  and  scrutiny  of  the  State  election.  It  undertakes 
a  function  that  is  judicial ;  and  the  powers  for  its  exercise  are  at 
tempted  to  be  evoked  by  their  necessity  for  the  exercise  of  the  func 
tion  assumed.  What  are  adequate  means  I  Adequate  means  for  that 
judicial  investigation  are  plenary  means.  No  means  are  adequate 
for  that  inquiry  that  are  not  plenary.  But  no  plenary  judicial  powers, 
no  plenary  powers  for  inquiry  into  fact  and  determination  of  law, 
judicially,  can  be  communicated  by  Congress  except  to  tribunals  that 
are  courts  inferior  to  the  Supreme  Court,  and  that  are  filled  by  judges 
appointed  by  the  President  of  the  United  States  and  confirmed  by  the 
Senate.  Will  any  lawyer,  expert  or  inexpert,  mention  a  topic  or 
method  of  judicature,  of  jurisprudence,  that  involves  the  possession 
of  means  of  larger  reach  and  a  more  complete  control  of  powers  than 
the  trial  of  a  quo  warranto  for  an  office  that  is  to  search  an  election  ? 
But  not  only  is  it  beyond  the  power  of  Congress  to  transfer  to  this 
Commission  the  powers  of  a  court  of  this  plenary  reach  and  efficiency, 
but  on  the  topic  of  quo  ivarranto  to  try  the  title  of  an  office  they 
would  find"  a  subject  of  jurisdiction  in  regard  to  which  the  Constitu 
tion  had  interposed  an  insurmountable  barrier  to  its  devolution  on  a 
court  like  this.  The  quo  warranto  is  a  matter  and  an  action  of  the 
common  law.  It  involves  as  matter  of  right  the  introduction  of  a 
jury  into  its  methods  of  trial.  No  title  to  office  on  a  contested  elec 
tion  was  ever  tried  without  a  jury.  The  seventh  article  of  the  Con 
stitution  requires  that  in  suits  at  common  law  the  right  of  trial  by 
jury  shall  be  preserved,  and  their  verdict  shall  never  be  re-examined 
in  any  court  of  the  United  States  except  by  the  rules  of  the  common 
law. 

I  may  ask  your  attention,  in  connection  with  the  topic  that  I  last 
discussed,  and  in  pertinent  relation  to  the  present,  to  the  case  of 
Groome  vs.  Gwynne,  in  43  Maryland  Reports,  572,  especially  at  page 
624.  This  case  shows  that  this  argument  that  a  duty  attributed  by 
law  or  the  Constitution  must  carry  to  itself,  in  the  f unctionary  charged 
with  its  exercise,  all  the  powers  necessary,  upon  the  ground  that  the 
duty  must  involve  the  powers,  finds  no  place  in  our  jurisprudence ;  the 
argument  is  the  other  way.  If  the  functionary,  if  the'Coinmission  has 
not  been  clothed  with  the  necessary  faculties,  then  the  duty  is  not 
accorded  or,  the  means  of  its  exercise  not  being  furnished,  it  cannot 
be  discharged.  There  the  governor  had,  by  the  State  constitution, 
the  power  to  determine  a  contest  for  the  elective  office  of  attorney- 
general  of  the  State  of  Maryland.  The  governor,  finding  by  his  own 
inspection  of  the  constitution  that  he  lacked  the  means  of  carrying 
out  the  scrutiny  that  must  decide,  held  that  he  could  not  exercise  it 
and  he  would  not  exercise  it  unless  compelled  by  judicial  authority. 
The  court  of  appeals,  on  an  application  for  a  mandamus  to  compel  the 
governor  to  give  the  certificate  to  the  candidate  appearing  to  be  elected 
by  the  canvass,  held  that  he  was  vested  by  the  constitution  with  an 
authority  to  decide  the  contest,  but  that  the  laws  of  Maryland  had 
not  executed  the  constitution  by  furnishing  him  with  powers  to  per 
form  the  duty  assigned  to  him,  and  that  the  mandamus  must  go  against 
him  to  compel  him  to  deliver  the  certificate  to  the  candidate  that,  on 
the  fraudulent  election,  was  returned  as  having  the  plurality  of  votes. 
Thus  the  preliminary  contest  before  the  governor  that  might  have 
been  effectual  to  redress  the  frauds  of  the  election  was  defeated  for 
want  of  necessary  legislation.  The  contest  could  only  be  had  under 
the  judicial  powers  of  the  State  lodged  in  the  courts,  and  in  the  shape 
of  quo  warranto  on  a  suit  against  the  inducted  candidate  that  the  gov 
ernor  might  or  would  have  decided  not  to  be  entitled  to  take  the  office. 

I  find  in  this  act  of  1877  no  such  purpose  in  the  arrangement  of  this 
Commission  or  its  endowment  with  powers  as  to  make  it  a  court  under 
the  Constitution.  I  find  no  appointment  of  these  judges  to  this  court 
under  the  powers  of  the  Constitution.  I  find  no  means  provided  for 
writs  and  their  enforcement,  nor  for  the  methods  of  trial  that  must 
belong  to  a  discussion  on  a  quo  warranto.  Now,  I  understand  that  the 
proponents  of  this  proof  lay  out  as  the  nature  and  the  limits  of  your 
inquiries  of  your  duties  and  your  powers,  that  of  judicial  investiga 
tion  upon  quo  warranto.  Mr.  Representative  Field  assigned  to  you 
what  he  described  as  "  powers  at  least  as  great  as  of  a  court  on  quo 
icarranto,"  and  of  course  in  that  nature.  Mr.  Merrick  claimed  the 
same.  Judge  Black  did  not  in  terms,  yet  in  assigning  the  nature  and 
the  searching  character  of  the  transaction  that  you  are  to  enter  upon, 
gave  it  that  character  and  implied  that  demand.  The  brief  handed 
in  by  Mr.  Green,  in  the  praise  of  which  I  am  happy  to  join  with  his 
learned  associates,  makes  the  claim  distinctly  that  you  are  not  ade 
quate  as  a  revising  canvassing  board,  but  you  must  have  the  powers 
of  a  court  on  quo  warranto.  And  why  this  claim  if  anything  less  mag 
nificent  and  anything  less  intolerable  could  have  been  found  sufficient 
area  for  your  action  as  desired  ?  It  is  because  in  the  methods  and 
machinery  of  elections,  as  they  insist,  the  steps  are  onward,  from  one 
canvass  to  the  next,  and  if  you  are  made  only  a  superior  canvassing 
board  to  determine  whether  Governor  Stearns's  certificate  that  these 
electors  were  appointed  is  valid,  and  you  are  nothing  but  a  returning 
board,  surmounting  the  final  returning  board  to  see  whether  their  re 
turns  justified  that  certificate,  that,  at  once,  you  must  find  that  it 
does,  that  the  de  facto  title  and  possession  is  complete,  and  that  noth 
ing  but  a  jurisdiction  that  concedes  the  de  facto  title  and  possession 
can  begin  can  find  the  case  for  beginning,  the  consideration  of  the 
question  of  right.  This  quo  warranto  suit  in  the  Florida  court,  if  it 
becomes  a  subject  of  evidence,  declares  absolutely,  on  the  petition  of 
the  Tilden  electors,  that  the  Hayes  electors  are  in  possession  of  the 


ELECTORAL  COMMISSION, 


faculty,  the  office,  or  whatever  it  may  be,  and  are  exercising  it,  and 
they  ask  that  an  inquiry  may  then  proceed  in  due  course  of  law,  to 
inquire  whether  that  possession  and  that  exercise,  as  matter  of  right, 
between  them  and  the  Hayes  electors,  are  or  are  not  according  to  law 
and  truth. 

And  the  Commission  will  be  good  enough  to  look  at  an  act,  not  re 
printed  in  the  little  collection  of  the  acts  so  usefully  laid  before  us, 
of  February  2, 1872,  in  the  laws  of  Florida,  in  relation  to  the  proceed 
ing  upon  writs  of  quo  warranto.  The  general  statute  of  procedure 
excludes  any  possible  writ  of  quo  warranto  except  by  the  State  through 
the  action  of  the  attorney-general,  and  this  quo  warranto  suit  begins 
by  evidence  that  the  attorney-general  refused  to  bring  the  writ  for 
the  State,  and  that  led  to  an  inquiry  how  it  happened  that  it  was 
brought  at  all,  and  to  the  discovery  of  this  law  of  1872,  providing 
that  when  the  attorney-general  refuses  then  claimants  may  make 
themselves  relators  and  use  the  name  of  the  State  ;  but  in  such  case 
the  snit  is  a  mere  private  suit  that  is  good  between  the  parties  but 
does  not  affect  the  State.  It  is  in  terms  so  provided,  and  it  is  pro 
vided  that  the  judgment  shall  not  be  a  bar  to  a  subsequent  suit  by 
'the  attorney-general  in  the  public  right.  So  much  to  explain  that 
situation. 

Mr.  Commissioner  BRADLEY.  Is  that  act  printed  here  ?  Will  you 
give  us  the  page  of  the  session  laws? 

Mr.  EVARTS.    Page  28  of  the  session  laws  of  1872. 

There  is  but  one  other  point  that  I  wish  to  call  to  the  attention  of 
the  Commission  in  the  legislation  of  Florida,  for  I  can  spend  no  time 
to  rehearse  the  statutes.  On  page  53  of  the  pamphlet  that  has  been 
printed  for  the  use  of  the  Commission  there  are  found  sections  31  and 
32.  One  is  a  provision  that — 

The  secretary  of  state  shall  make  and  transmit  to  each  person  chosen  to  any 
State  office  immediately  after  the  canvass — 

Showing  that  the  canvass  as  completed  is  the  basis  of  the  State's 
authentication  of  the  right  of  every  State  officer — 
a  certificate  showing  the  number  of  votes  cast  for  each  person,  which  certificate 
shall  be  prima  facie  evidence  of  his  election  to  such  office. 

That  gives  him  the  office.  Subsequent  inquiry  is  as  to  the  final 
right.  Then  section  32 : 

When  any  person  shall  be  elected  to  the  office  of  elector  of  President  and  Vice- 
President,  or  Representative  in  Congress,  the  governor  shall  make  out,  sign,  and 
cause  to  bo  sealed  with  the  seal  of  the  State,  and  transmit  to  such  person  a  certifi 
cate  of  his  election. 

That  is  the  State's  final  designation  of  the  person  that  has  been 
appointed  an  elector  under  the  Constitution  of  the  United  States. 
Had  these  contestants  any  such  authentication  of  their  right,  and 
have  they  proposed  any  such  evidence  of  right  as  in  existence  on  the 
6th  day  of  December  if  Have  they  questioned  the  completeness  of 
the  Hayes  electors'  warrant  to  attend  and  discharge  their  duty  that 
clothes  the  vote  when  cast  with  the  complete  qualification  under  the 
State  laws  and  the  State's  action  ?  We  have  the  governor's  certifi 
cate,  and  he  is  the  very  person  that  passed  officially  upon  that  ques 
tion  which  furnishes  the  authority  to  the  electors  to  meet  and  act, 
that  this  is  the  list  of  the  electors  appointed.  Omnia  pratsumuntm- 
rite  acta  ;  but  there  is  no  presumption  needed  here.  These  certificates 
under  the  State  law  form  no  part  of  the  return  to  the  President  of 
the  Senate ;  but  when  the  same  governor  executes  under  Federal  law 
the  same  duty  and  upon  the  same  evidence  as  under  State  law,  we 
have  in  his  certificate,  now  here,  adequate  authentication  of  the  com 
pletion  of  the  transaction  by  which  the  State  appointed  the  Hayes 
electors. 

Now  we  come  to  consider  the  general  doctrine  as  to  what  the  pow 
ers  are,  and  what  the  arrangement  and  disposition  of  those  powers  are, 
under  the  Constitution  of  the  United  States  in  the  transaction  of 
choosing  a  President.  In  the  first  place,  the  only  transaction  of  choos 
ing  a  President  begins  with  the  deposit,  so  to  speak,  in  the  Federal 
urn  of  the  votes  of  certain  persons  named  and  described  in  the  Con 
stitution  as  electors.  From  the  moment  of  that  deposit  the  sealed 
vote  lies  protected  against  destruction  or  corruption  in  the  deposit 
provided  for  it,  the  possession  of  Federal  officers  in  Federal  offices. 
The  only  other  step,  after  that,  is  the  opening  of  those  votes  and  their 
counting.  All  that  precedes  the  deposit  of  the  votes  by  electors  re 
lates  to  their  acquisition  of  the  qualifications  which  the  Constitution 
prescribes.  Those  qualifications  are  nothing  but  appointment  by  the 
State,  and  with  that  the  act  of  Congress  and  the  Federal  Constitution, 
with  due  reverence  to  State  authority,  do  not  interfere.  It  has  been 
provided  under  a  rule  of  prudence  that  the  electors  shall  all  be  ap 
pointed  on  the  same  day  in  all  the  States.  It  has  been  provided  that 
they  shall  meet  and  cast  their  votes  on  the  same  day.  The  latter 
provision  fixes  a  duty  in  the  transaction  of  voting  for  President  The 
other  is  the  only  intrusion  upon  State  authority  in  the  absolute  choice 
of  the  time  and  manner  of  appointment ;  Congress  may  prescribe 
that  the  time  of  voting  shall  be  the  same  in  all  the  States,  and  Con 
gress  has  so  prescribed. 

What  are  we  to  gather  in  respect  to  the  stage  of  this  transaction 
which  is  the  deposit  of  the  Federal  vote  for  President  by  the  quali 
fied  electors  ?  It  is  their  own  vote.  They  are  not  delegates  to  cast 
a  vote  according  to  the  instruction  of  their  State.  They  are  not  dep 
utized  to  perform  the  will  of  another.  They  are  voters  that  exorcise 
a  free  choice  and  authority  to  vote,  or  refrain  from  voting,  and  to 
vote  for  whom  they  please  ;  and  from  the  moment  that  their  vote  is 
eealed  and  sent  forward  toward  the  seat  of  Government  no  power  in 


a  State  can  touch  it,  arrest  it,  reverse  it,  corrupt  it,  retract  it;  Nothing 
remains  to  be  done  except  count  it,  and  count  it  as  it  was  deposited. 
The  wisdom  of  the  secret  ballot  and  of  its  repose  in  the  possession  of 
the  President  of  the  Senate  secures  the  object,  ut  nihil  innovetur.  The 
vote  is  to  be  opened  and  counted,  in  contemplation  of  law,  as  freshly 
as  if  it  had  been  counted  on  the  day  it  was  cast,  in  the  State. 

These  electors  at  our  present  election,  three  hundred  and  sixty-nine 
citizens  in  number,  not  being  marked  and  designated  by  any  but  po 
litical  methods,  are  by  the  Constitution  made  dependent  for  their 
qualification  upon  the  action  of  the  State.  It'  the  State  does  not  act 
there  are  no  qualified  electors.  If  the  State  does  act,  whatever  is  the 
be-all  and  the  end-all  of  the  State's  action  up  to  the  time  that  the  vote 
is  cast  is  the  be-all  and  the  end-all  of  the  qualification  of  the  elector, 
and  he  is  then  a  qualified  elector  depositing  his  vote  to  accomplish 
its  purpose,  and  to  be  counted  when  the  votes  are  collected. 

Our  ancestors,  whom  we  revere — let  us  not  at  the  same  time  despoil 
them  of  their  right  to  our  reverence — were  not  wanting  either  in 
forecast  or  in  circumspection  in  this  provision.  Every  solicitude, 
every  safeguard  that  a  not  very  credulous  view  of  human  nature 
could  exact  for  the  supremacy  of  the  Constitution  in  this  supreme 
transaction  under  it  was  provided.  At  the  bottom  of  every  thing  was 
a  determination  that  this  business  should  proceed  to  fill  the  office ; 
that  that  terror  of  monarchies  and  of  republics  alike,  a  vacant  or  a 
disputed  succession  to  the  occupancy  of  the  Chief  Magistracy,  should 
not  possibly  exist. 

Let  me  find  for  you  those  constitutional  limitations  upon  the  sup 
posed  quo  warranto  procedures  that  were  to  cover  investigations  into 
thirteen  or  thirty-eight  States  before  the  votes  could  be  counted. 
Why,  the  second  "substituted  election,  on  the  .failure  of  the  first,  must 
end  by  the  4th  of  March.  What  room  is  there  to  interpolate  quo  war 
ranto  proceeding  in  any  stage  from  the  deposit  in  the  primary  ballot- 
box  in  the  State  up  to  the  counting  of  the  votes  which  declares  a 
President  elected,  or  the  failure  to  elect,  upon  which  the  States  re 
sume  their  control  through  their  delegates  in  the  lower  House  of  Con 
gress  upon  the  basis  of  State  equality  ?  The  substituted  election  must 
come  to  an  end  by  the  4th  of  March ;  and  whoever  introducesjudicial 
quo  warranto  anywhere  in  the  transaction  introduces  a  process  of  re 
tardation,  of  baffling,  of  obscuring,  of  defrauding,  of  defeating  the 
election,  and  gives  to  the  Senate,  by  mere  delay,  the  present  filling  of 
the  Presidency  with  an  acting  officer  and  compels  a  new  election. 
That  much  for  delay.  Now  it  is  an  absolutely  novel  proposition  that 
judicial  power  can  put  its  little  finger  into  the  political  transaction 
of  choosing  anybody  to  an  elective  office. 

The  bringing  into  office  a  President,  bringing  into  office  a  gov 
ernor,  bringing  into  office  any  of  the  necessary  agents  of  the-  frame 
and  structure  of  the  State,  without  which  in  present  action  it  will 
be  enfeebled  and  may  fall,  is  a  political  action  from  beginning  to  end. 
It  comes  to  furnish  a  subject  of  judicial  post  hac  investigation  only 
after  it  has  been  completed.  If  judges  are  to  intrude  and  courts  with 
their  proceedings  at  the  various  stages  that  are  to  be  passed  in  the 
business  of  filling  the  offices,  so  that  there  shall  be  no  vacant  and  no 
disputed  succession  de  facto,  who  does  not  see  that  you  introduce  the 
means  of  defrauding  and  defeating  the  political  action  entirely,  and 
turning  it  into  a  discussion  of  the  mere  right  that  shall  leave  the  office 
vacant  till  the  mere  right  is  determined  ? 

It  is  an  absolute  novelty,  unknown  in  the  States,  unknown  in  the 
nation,  that  judicial  inquiries  can  be  interposed  to  stop  the  political 
action  that  leads  up  to  the  filling  of  offices.  The  interest  of  the  State 
is  that  the  office  shall  be  filled.  Filling  it  is  the  exercise  of  a  politi 
cal  right,  the  discharge  of  a  political  duty.  Such  safeguards  can  be 
thrown  about  the  ballot-box,  about  the  first  canvass,  the  second 
canvass,  the  third  canvass,  the  final  canvass  in  the  States,  about  the 
final  counting  before  the  two  Houses,  and  that  shall  not  retard  or  de 
feat  the  progress  to  the  necessary  end,  are  provided.  These  are  pro 
vided  ;  these  are  useful;  but  you  do  not  step  with  a  judicial  investi 
gation  into  a  ballot-box  upon  a  suggestion  that  it  has  been  stuffed, 
and  stop  the  election  till  that  quo  tvarranto  is  taken  ;  and  then  when 
you  get  to  the  first  canvasser  stop  his  count  from  going  on,  because 
it  is  a  false  count,  and  have  a  court  decide,  and  so  with  the  county 
canvassers,  stop  their  transaction  in  the  rapid  progress  to  the  result 
aimed  at,  to  wit,  tilling  the  office,  with  a  quo  warranto  there,  and  then 
in  the  State  canvass,  and  then  here.  It  is  an  absolute  novelty.  No 
judicial  action  has  ever  been  accepted  and  followed  except  the  man 
damus  to  compel  officers  to  act,  nothing  else.  That  was  not  retarding ; 
that  was  ascertaining ;  that  was  compelling ;  that  was  discarding 
delays  on  the  question  of  right. 

In  our  supreme  court  in  New  York  not  very  many  years  ago  an 
attempt  was  made  to  obtain  an  injunction  against  inspectors  can 
vassing  votes,  the  primary  deposit  in  the  ballot-box  of  their  election 
district,  because  they  had  been  sworn  on  the  directory  and  not  on 
the  Bible.  They  had  no  right  to  discharge  their  function  without 
taking  an  official  oath,  the  preliminary  oath.  The  court  refused  it 
necessarily.  However  much  this  irregularity  might  find  play  and  place 
in  a  quo  warranto  investigation  of  the  whole  transaction,  piecemeal 
inquiry  cannot  be  made  and  no  injunction  of  a  court  can  intrude  into 
the  course,  of  the  political  action  of  an  election. 

The  position  that  I  have  assigned  to  the  States  is  the  appointment 
as  they  please.  Now,  let  me  call  your  attention  to  a.  provision  in  the 
act  of  Congress  the  application  of  which  may  not  have  occurred  to 
your  observation,  It  is  provided  in  the  act  tliat  if  the  State  shall 


ELECTORAL  COMMISSION. 


33 


have  failed  to  appoint  on  the  clay  for  appointment  it  may  make  a 
subsequent  appointment  as  the  Legislature  nuiy  please.  It  was  not 
intended,  then,  that  the  process  of  finding  out  whether  there  had  been 
an  election  or  not  should,  by  its  method  and  its  regular  action,  be 
exposed  to  frustration.  Even  the  failure  itself,  disclosed  by  the-  politi 
cal  canvass,  was  the  basis  on  which  the  State  was  reuewedly  to  exor 
cise  its  right  in  time  for  transmission  here.  Now,  you  have  in  this  act 
of  Congress  a  provision  which  shows  that  they  recognize  that  the 
method  of  progress  and  result  was  to  be  cherished  above  all  others 
that  its  success  might  end  in  time  to  confer  the  qualifications  or  its 
failure  in  time  that  the  substituted  appointment  reserved  to  the  States 
should  be  accomplished. 

But  now  it  is  said  that  a  failure  of  election  maybe  retarded  in  its 
declaration  so  as  to  deprive  the  State  of  its  power  to  act  on  that  fail 
ure,  and  it  is  said  that  by  the  act  of  Congress  the  contemplated  ascer 
tainment  may  involve  judicial  proceedings  in  the  State.  Why,  if 
there  be  anything  that  in  election  laws  is  provided  in  every  State,  it 
is  that  there  shall  be  no  reconsideration,  no  steps  backward,  no  de 
lays  except  of  ministerial  and  apparently  easy  duty ;  and  if  discretion 
is  given,  by  departures  from  that  general  policy  in  particular  States, 
it  is  always  found  to  have  its  origin  in  a  motive  of  correcting  a  spe 
cial  mischief  for  which  it  is  framed,  some  abnormal  coudiiion  of  the 
body-politic,  that  requires  a  departure  from  the  general  method  of 
absolute  ministerial  transaction.  Our  proposition,  as  has  been  laid 
down  so  well  by  my  learned  associates,  is  that  under  Ihc  State  law 
of  Florida  that  is  the  method,  that  is  the  purpose,  that  is  the  action, 
and  that  every  step  and  stage  of  that  action,  rightly  oj:  wrongly,  hon 
estly  or  dishonestly,  purely  or  fraudulently,  has  conferred  qualifica 
tions  such  as  the  Federal  Constitution  requires  in  the  appointment 
by  the  State  through  the  methods  that  it  had  provided. 

One  word  on  the  point  that  the  line  of  demarkation  between  the 
inception  of  the  Federal  authority  and  the  culmination  and  consum 
mation  of  the  State's  action  precludes  an  inquiry,  at  the  furthest,  be 
yond  the  facts  certified  as  of  record  and  the  accuracy  of  the  certifi 
cate,  is  to  be  found  in  the  legislation  proposed  in  the  Congress  of  1800, 
when  the  wisdom  was  still  of  the  fathers,  enlightened  by  their  expe 
rience  of  the  working  of  the  great  scheme  they  had  framed,  that  the 
demarkation  should  be  observed,  and  that  the  powers  should  not  in 
clude  nor  be  deemed  to  include  any  inquiry  into  the  votes  as  cast  in.  the 
States. 

The  novelty,  as  I  have  said,  of  the  situation  produces  strange  re 
sults.  Never  before  has  there  been  the  retardation  of  the  political 
transaction  of  counting  an  election,  and  to  accomplish  that  almost  a 
miracle  has  been  needed,  for  the  sun  and  the  moon  have  been  made 
to  stand  still  much  longer  than  they  did  for  Joshua  in  the  conflict 
in  Judea.  You  will  find  that  an  attempt  to  bring  judges — I  do  not 
BOW  speak  of  judges  in  the  official  capacity  that  some  portion  of  this 
bench  occupy  in  the  Supreme  Court,  but  I  mean  judges  in  the  nature 
of  judicial  function  and  its  exercise — into  the  working  of  this  scheme 
of  popular  sovereignty  in  its  political  action,  will  make  it  as  intol 
erable  in  its  working,  will  so  defraud  and  defeat  the  popular  will, 
by  the  nature  and  necessary  consequences  of  the  judicial  interven 
tion,  that,  at  last,  the  government  of  the  judges  will  have  superseded 
the  sovereignty  of  the  people,  and  there  will  be  no  cure,  no  recourse 
but  that  which  the  childn-irof  Israel  had,  to  pray  for  a  king. 

The  PRESIDENT.    Mr.  O'Conor,the  Commission  will  now  hear  you. 

Mr.  EVARTS.  1  ask  your  honors  to  take  a  reference  to  very  recent 
cases  in  the  seventy-eighth  volume  of  Illinois  Reports,  Dickey  rs. 
Reed.  It  is  a  long  case  and  an  important  case.  Ou  pages  2;>7,  xJGS- 
2b'9,  the  matter  pertinent  to  this  inquiry  is  to  be  found.  I  refer  also  to 
25  Maine  Reports,  page  5(5(5,  an  opinion  of  the  supreme  judicial  court  of 
that  State  on  the  powers  that  are  included  in  the  authority  to  open 
and  count  votes.  In  33  Maine  Reports,  page  59d,  is  a  similar  judicial 
instruction  ;  and  in  53  New  Hampshire  Reports,  page  640,  there  is  a 
similar  judicial  action  under  the  constitution  of  that  State.  I  ref«T 
also  to  a  recent  case  called  Ca3sar  Griffin's  case  in  the  district  of  Vir 
ginia,  in  Johnston's  Reports,  page  364,  a  decision  of  Chief- Justice 
Chase  on  the  authority  of  da  facto  officers  proved  not  to  have  been  de 
jure  in  all  the  efficacy  of  their  conduct  of  affairs. 

Mr.  O'CONOR.  Mr.  President  and  gentlemen  of  the  Commission  : 
I  will  not  say  probably  because  it  may  be  said  certainly  that  the  most 
important  case  that  has  ever  been  presented  to  any  official  authority 
within  these  United  States  is  now  brought  before  this  honorable  Com 
mission  for  its  investigation  and  decision.  It  is  brought  here  under 
circumstances  that  give  absolute  assurance,  as  far  as  absolute  assur 
ance  can  exist  in  human  things,  of  a  sound,  upright,  intelligble  decis 
ion  that  will  receive  the  approval  of  all  just  and  reasonable  men. 
The  great  occasion  which  has  given  rise  to  the  construction  of  this 
tribunal  has  attracted  the  attention  of  every  enlightened  and  observ 
ing  individual  in  the  civilized  world.  This  Commission  acts  under 
that  observation.  The  conclusion  at  which  it  may  arrive  must  neces 
sarily  pass  into  history,  and,  from  the  deeply  interesting  character  in 
all  their  aspects  of  the  proceedings  had  and  the  judgment  to  be  pro 
nounced,  that  history  will  attract  the  attention  of  students  and  men 
of  culture  and  intelligence  as  long  as  our  country  shall  be  remembered; 
for.it  cannot  be  supposed  that  a  question  will  ever  arise  and  be  deter 
mined  in  a  similar  manner  which  by  its  superior  magnitude,  impor 
tance,  delicacy,  and  interest  will  obscure  this  one  or  cause  it  to  be 
overlooked. 

The  selection  of  members  to  this  Commission  was  made  by  a  choice 


of  five  individuals  equal,  assumed  to  be  equal,  pronounced  to  be  equal, 
if  not  superior  to,  any  others  to  be  found  in  the  House  of  Representa 
tives,  and  a  similar  choice  of  similar  individuals  taken  from  the 
Senate,  thus  placing  the  entire  legislative  representation  of  our  whole 
country  under  the  observation  of  present  and  future  times  in  respect  to 
whatever  shall  here  be  done.  To  that  has  been  added  a  selection  of 
five  other  members  from  the  highest  judicial  tribunal  known  under 
our  Constitution  and  laws,  and  certainly  a  tribunal  equal  in  official 
majesty  and  dignity,  as  well  as  in  intellectual  power,  to  any  that  has 
ever  existed.  Evidently  from  the  whole  frame  of  the  procedure 
these  appointments  were  made  with  an  earnest  intent  and  indeed  a 
fixed  resolution  to  have  here  represented  in  this  tribunal  whatever  of 
perfect  impartiality  and  fairness,  whatever  of  purity  and  integrity, 
whatever  of  learning  and  dignity  of  position  our  country  could  afford. 
This  too  is  a  public  act  of  the  highest  authority  that  could  be  invoked 
to  express  the  sovereign  will  of  the  whole  people. 

The  questions  to  be  considered  are  of  a  public  character  and  of  a 
judicial  nature.  Every  member  of  the  Commission  has  been  a  jurist 
by  profession  during  his  life,  and  has  devoted  his  time  and  his  study 
to  the  apprehension  and  comprehension  of  legal  questions. 

It  was  said  by  a  great  English  judge,  and  an  eminent  writer  and 
historian,  in  the  highest  court  of  that  country,  in  a  conspicuous  case, 
that  "jurisprudence  is  the  department  of  human  knowledge  to  which 
our  brethren  of  the  United  States  of  America  have  chiefly  devoted 
themselves,  and  in  which  they  have  chiefly  excelled." 

With  all  these  elements  affording  guarantees  in  respect  to  the  re 
sult,  I  think  it  may  be  confidently  asserted  that  such  result  cannot, 
be  other  than  the  intelligent  judgment  of  mankind  in  present  and 
future  times  will  approve.  With  that  assurance,  and  with  a  deep 
sense  of  my  own  incapacity  to  fulfill  the  part  assigned  me  in  arguing 
the  great  question  presented,  but  a  conviction  that  .all  deficiencies  of 
this  kind  will  be  supplemented  by  the  learning  and  ability  of  the 
tribunal,  I  proceed  to  lay  before  your  honors  what  may  seem  proper 
to  be  now  said  on  our  part  in  relation  to  the  issues  that  have  been 
raised  for  consideration  by  the  commission's  resolve  adopted  on  Satur 
day. 

The  questions,  in  short,  without  repeating  details,  are  expressed  by 
the  inquiry,  what  powers  have  been  vested  in  this  Commission  for  the 
purpose  of  enabling  its  members  to  guide  through  its  determination 
the  action  of  the  political  authorities  as  to  the  election  of  President 
and  Vice-President  ?  And  here  let  me  observe  on  a  mistake  which  the 
other  side  has  made  in  relation  to  a  paper  presented  to  the  court  on 
our  part  on  Saturday.  It  has  been  construed  as  in  some  sense  pre 
scribing  limits  or  giving  our  view  of  some  limit  proper  to  be  assigned 
to  the  power  and  authority  of  this  Commission.  This  is  a  mistake. 
That  paper  was  designed  for  no  such  purpose,  and  expresses  no  such 
idea.  With  a  view  to  facilitate  the  action  of  the  courfc  we  presented  in 
that  paper  a  statement  which  we  believe  to  be  correct,  and  true  in 
point  of  fact,  showing  the  very  narrow  range  of  inquiry  into  matters 
of  fact  that  would  actually  become  necessary. 

In  reference  to  the  question,  what  elements  of  inquiry  are  within 
the  competency  of  this  court,  we  stand  in  direct  conflict  with  the 
other  side,  and  the  issue  formed  between  us  is  this: 

We  maintain,  as  representing  what  are  called  the  Tilden  electors, 
that  this  tribunal  has  full  authority  to  investigate  by  all  just  and 
legitimate  means  of  proof  the  very  fact,  and  thereby  to  ascertain  what 
was  the  electoral  vote  of  Florida. 

On  the  other  hand,  it  is  claimed  that  this  learned  Commission  is 
greatly  trammeled  by  technical  impediments  and  has  no  power  except 
merely  to  determine  what  may  be  the  just  inferences  from  the  docu 
ments  returned  to  the  President  of  the  Senate  from  the  State  of  Flor 
ida.  While  thus  contending,  however,  the  Hayes  electors  mainly  repose 
themselves  on  the  proposition  that  they  are  officers  de  facto.  Admit 
ting  for  the  sake  of  argument  that  their  claim  to  be  electors  is  with 
out  right,  and  is  simply  clothed  with  a  false  and  fabricated  color  of 
title,  the  Hayes  electors  claim  through  their  counsel  that  inasmuch 
as  they  cast  their  vote  while  possessed  of  some  documents  which 
gave  to  them  the  mere  color  of  a  right  to  perform  that  duty,  the  fact 
that  they  acted  upon  this  color,  and  did,  of  their  own  motion,  of  their 
own  personal  will,  through  their  own  right  of  selection,  cast  the 
votes  for  Mr.  Hayes  that  are  sent  here  as  the  vote  of  Florida,  all  iu- 
quiry  is  completely  precluded,  and  that  it  is  impossible  for  any  earthly 
tribunal  or  any  individual  to  investigate  or  to  declare  the  invalidity 
of  their  claim. 

This  issue,  thus  I  trust  not  too  narrowly  stated,  raises  the  question, 
What  are  the  powers  of  this  Commission  ?  I  proceed  tostateour  views 
on  the  subject. 

Those  powers  are  distinctly  and  briefly  expressed  in  the  electoral 
bill  under  which  you  are  acting — that  admirable  act  of  legislation, 
destined  to  the  immortal  honor  of  those  concerned  in  its  preparation, 
to  pass  into  history  with  your  action.  The  language  defining  your 
powers  declares  that  you  shall  possess — 

The  same  powers,  if  any,  now  possessed — 

For  the  purpose  in  hand — 
by  the  two  Houses  acting  separately  or  together. 

You  have  then  (and  this  is  the  test)  all  the  powers  of  those  two 
Houses  which  they  could  possibly  exercise  under  the  Constitution 
and  by  the  pre-existing  statutes,  for  the  purpose  of  enabling  you  to 
determine  the  inquiries  submitted  to  you.  Let  us  see  then  what 


34 


ELECTORAL  COMMISSION". 


powers  are  possessed  by  the  two  Houses  separately  or  together  iu  de 
ciding  as  to  the  electoral  vote  upon  the  facts  that  exist  or  that  might 
exist  and  may  be  proven.  And  this  calls  upon  us  to  say  what  those 
powers  are,  and  requires  us  to  answer  whether,  in  relation  to  the  ac 
tion  which  has  here  been  called  counting,  any  powers  under  the  laws 
existing  when  this  electoral  bill  was  passed  and  which  were  need 
ful  to  a  proper  ascertainment  of  the  vote  were  vested  in  the  Presi 
dent  of  the  Senate. 

Now  that  no  power  of  any  description  deserving  the  name  of  a 
power  to  investigate  and  decide  resided  in  the  President  of  the  Sen 
ate  is  most  plain  from  the  very  words  of  the  Constitution.  He  is 
authorized  to  receive  certain  packets,  and  he  has  no  authority  what 
ever  by  the  Constitution  save  and  except  only  to  present  himself  to 
the  two  Houses  of  Congress  and  iu  their  presence  to  open  these  pack 
ets.  The  phrase  is  "  open  the  certificates,"  but  this  evidently  means 
open  the  packets.  He  has  no  right  to  open  them  at  any  previous 
time ;  he  has  no  power  whatever  to  investigate  what  is  contained  in 
the  packets  before  thus  opening  them.  He  has  no  means  of  taking 
testimony;  he  has  no  right  to  judge  of  anything;  and  he  is  posi 
tively  precluded,  not  only  by  the  Constitution  itself  but  by  the  physi 
cal  laws  of  nature,  from  knowing  what  may  be  within  any  packet 
thus  received  by  him  uutil  the  moment  at  which  he  opens  that  packet 
in  the  presence  of  the  two  Houses;  of  course  the  packets  which  he 
is  thus  authorized  to  open  are  to  present  the  basis  of  subsequent 
action. 

Nothing  further  is  prescribed  to  him,  and  I  humbly  submit  that  it  is 
most  manifest  that  he  has  none  but  the  merest  of  clerical  powers  nor 
any  ability  to  do  anything  except  to  open  the  packets  at  that  time 
and  at  that  place  and  in  that  presence.  He  cannot  even  know  what 
is  in  the  packets  until  he  opens  the  packets.  But  it  is  manifest  that 
the  packets  which  he  thus  opens  may  raise  a  decision  by  some  au 
thority  of  a  preliminary  question,  that  is  to  say,  what  are  the  votes 
in  respect  to  which  a  count  may  take  place  ?  No  person  or  function 
ary  or  body  being  specially  pointed  out  as  having  power  to  make  that 
count.  Now,  a  great  deal  has  been  said  which  I  consider  not  very 
applicable  or  very  instructive  in  reference  to  this  word  "  count,"  as 
if  it  were  the  operative  and  principal  word  here  and  were  used  to  de 
termine  the  faculty  and  point  out  the  power  of  those  who  have  author 
ity  to  count.  Now,  I  humbly  insist  that  the  count  itself  is  so  purely 
a  simple  arithmetical  process  that  in  reference  to  it  there  never  could 
be  a  possible  difference  of  opinion  anywhere  or  among  any  persons. 

1  apprehend  that  there  is  a  word  in  this  constitutional  provision 
that  ought  not  to  be  overlooked.  The  President  of  the  Senate  is  to 
receive  these  packets.  They  are  not  required  to  have  any  note  or 
ear-mark  of  any  description  to  indicate  to  him  what  they  are,  and  he 
can  only  learn  by  external  inquiry  or  report  that  they  are  sent  him 
by  persons  pretending  to  be  electors  of  President  and  Vice-President ; 
and  the  Constitution,  proceeding  to  declare  his  duty,  says  that  he  shall 
"open  all  the  certificates."  The  word  "  all "  would  perform  no  func 
tion,  and  it  would  be  entirely  useless,  if  it  were  to  be  confined  to  in 
dicating  the  certificates  before  spoken  of.  The  simple  phrase  "  shall 
open  the  certificates "  would  suffice;  but  he  is  to  " open  all  the  cer 
tificates  ;"  and  this  provision  of  the  Constitution,  not  granting  powers 
of  investigation  but  dealing  with  visible  facts,  declares  that  he  shall 
"  open  all  the  certificates."  This  I  apprehend  means  all  packets  that 
may  have  come  to  him  under  color  of  being  such  packets  as  the  Con 
stitution  refers  to ;  that  is,  packets  containing  electoral  votes  or  ap 
pearing  to  be  of  that  character.  He  is  bound  to  open  all  such  pack 
ets  in  the  presence  of  the  Houses  and  there  ends  his  duty.  But  when 
we  come  to  the  prescription  that  there  shall  be  a  count,  we  are  not 
told  that  there  shall  be  a  count  of  all  the  certificates  presented,  or  of 
the  certificates,  or  of  anything  in  the  certificates,  but  that  there  shall 
be  a  count  of  "  the  votes."  This,  I  humbly  submit,  introduces  a  nec 
essary  implication  that  somehow  and  by  some  authority  there  shall 
be  made,  if  necessary,  a  selection  of  the  actual  votes  from  the  mass 
of  papers  produced  and  physically  present  before  the  Houses.  Any 
investigation  that  this  nature  of  the  case  may  happen  to  require  in 
order  to  determine  what  are  "  the  votes  "  must  be  made  by  some  func 
tionaries  having  competency  to  make  it.  This  is  a  preliminary  in 
quiry,  and  whether  you  denominate  it  judicial  or  ministerial  or  ex 
ecutive,  it  is  to  be  an  Inquiry,  and  the  power  to  institute  or  carry  it 
on  is  neither  granted  in  terms  nor  are  there  any  possible  means  of  its 
exercise  so  far  as  the  President  of  the  Senate  is  concerned.  This  is 
left  to  an  implication  that  it  is  to  be  exercised  by  those  who  may 
have  occasion  to  act  officially  on  the  result  of  the  electoral  vote. 

Who  are  they  that  are  to  act  officially  by  the  terms  of  the  Consti 
tution  in  performance  of  duty  resulting  from  the  count  of  the  votes  ? 
The  Constitution  is  plain.  The  votes— meaning  of  course  the  legal 
votes— are  to  be  counted.  The  count  is  the  merest  ceremony  in  itself ; 
but  the  ascertainment  of  what  are  legal  votes  presented  necessarily 
devolves  upon  that  body  or  those  bodies  that  must  act  on  that  which 
is  produced  as  a  result  by  the  count.  The  authorities  compelled  by 
duty  to  see  that  the  count  is  justly  and  truly  made  and  to  act  on  the 
result  are  the  two  Houses. 

Unquestionably  the  first  and  primary  duty  of  the  Houses,  if  there 
is  a  count  showing  the  election  of  a  person  to  the  Presidency  and 
another  to  the  Vice-Presidency,  is  to  recognize  them  as  constituting 
that  co-ordinate  department  of  the  Government  called  the  execu 
tive.  As  to  a  mere  count,  all  the  world  may  make  it ;  no  mortal  man 
can  doubt  about  the  effect  of  a  count ;  but  I  presume  the  "-eneral 


world  is  not  called  npon  to  act  in  reference  to  the  count  until  that 
count  has  been  officially  recognized  by  some  lawful  authority.  But 
what  is  more  certain  is  this:  It  is  the  duty  of  the  House  of  Repre 
sentatives  at  that  point  in  the  process  to  determine  whether  an  exi 
gency  has  arisen  which  renders  it  their  duty  to  recognize  that  a  per 
son  has  been  elected  as  President  by  a  majority  of  votes,  of  the  legal 
votes,  or  whether  there  has  been  a  failure  to  elect  by  reason  of  a  tie; 
and  iu  that  event,  if  it  should  occur,  that  House  is  bound  to  act  upon 
the  result,  and  iu  this  exigency  itself  is  to  elect  a  President.  The 
same  observations  .apply  to  the  Senate  with  reference  to  the  Vice- 
President  ;  that  body  is  bound  in  like  manner  to  1'ecognize  the  fact 
of  an  election,  to  allow  it,  admit  it,  and  accept  it  as  a  fact,  or  to  deny 
it  and  say  that  it  is  not  so  and  themselves  to  proceed  in  the  election 
of  a  Vice-President. 

I  attach  no  importance  to  the  word  "  count ;"  but  I  claim  from  the 
very  nature  of  the  thing,  from  the  laws  inwrought  into  the  constitu 
tion  of  human  beings  and  governing  human  transactions,  that  those 
who  have  thus  to  act  officially  on  the  count  are  the  persons  who  must 
do  whatever  may  be  needful  for  the  purpose  of  enabling  a  count  to 
be  made.  Those  who  are  bound  to  act  in  the  one  direction  or  in  the 
other  as  the  case  may  require  must  possess  the  power  of  making  any 
preliminary  investigation  that  may  become  necessary. 

The  result  of  this  construction  is  that  that  officer  who  has  no  power 
but  to  open  them  is  set  aside  from  the  moment  he  opens  the  packets, 
and  the  duty  of  exercising  the  higher  function,  preliminarily,  of  in 
quiring  what  are  the  votes,  prior  to  this  mere  formal  act,  "  counting," 
must  devolve  npon  those  who  must  take  notice  what  are  the  legal 
votes  and  act  npon  the  count  of  them.  This  no  one  is  authorized  to 
make  or  to  declare  unless  it  be  themselves.  This  implied  power  is 
not  introduced  by  any  forced  construction,  but  from  the  absolute  ne 
cessity  of  the  case.  And,  consequently,  we  claim  that  the  needful 
powers  of  preliminary  investigation  wroro  in  the  Houses.  It  cannot 
fairly  be  disputed  that  Congress  by  united  action  might  have  consti 
tuted  some  public  body  to  conduct  the  investigation  ;  and  how  far 
they  might  have  gone  toward  making  the  result  absolutely  obligatory 
on  the  Houses  themselves  respectively,  we  need  not  inquire. 

They  did  not  exercise  such  a  power  prior  to  the  election  of  1876, 
and  they  have  not  otherwise  exercised  it  subsequently,  except  by  the 
constitution  of  this  tribunal,  and  they  have  reserved  to  themselves 
the  privilege  of  establishing  a  different  determination  by  a  concur 
rent  vote. 

The  competency  of  each  House  to  ascertain  the  truth  is  unquestion 
able.  Each  has  complete  powers  of  investigation  ;  they  can  take 
proof  through  their  committees  or  otherwise  as  to  any  matter  on 
which  they  may  be  obliged  to  decide,  and,  either  before  or  after  the 
opening  of  all  the  votes,  they  can  thus  investigate,  though  not,  it 
must  be  admitted,  with  the  aid  of  a  jury,  nor  in  the  precise  forms  of  a 
judicial  proceeding.  They  can  investigate,  as  political  and  legislative 
bodies  may,  all  the  facts  and  circumstances  that  are  necessary  to  be 
known  in  order  to  enlighten  their  judgment  and  guide  them  to  a  just 
and  righteous  decision. 

Our  construction  thus  recognizes  in  those  two  bodies  on  such  a  con 
tingency  as  is  here  presented  full  power  to  do  whatever  may  be  need 
ful  to  the  accomplishment  of  justice. 

What  is  the  objection  to  this  construction  ?  The  whole  argument 
against  it  resolves  itself  simply  into  the  argument  ab  inconvcnienti. 
Those  who  would  seek  to  grasp  a  high  office  by  illegal,  irregular,  and 
fraudulent  means  claim  that  i  t  would  be  inconvenient  to  take  so  much 
trouble  as  might  become  necessary  in  order  to  investigate  rightly  and 
rightly  to  determine,  on  proofs,  the  question  of  their  delinquency  and 
the  falsehood  of  their  claim.  This  is  a  common  plea  among  persons 
who  set  up  a  falsely  and  fraudulently  contrived  title.  When  an  effort 
is  made  to  strip  them  of  their  pretended  authority  by  demonstrating 
before  a  court  or  other  appropriate  tribunal  the  fallacy  of  their  claims 
and  the  necessity  to  the  ends  of  justice  of  having  that  fallacy  declared 
and  their  pretensions  set  aside  they  point  out  the  trouble  involved  in 
the  task.  But  let  us  see  how  stands  that  argument.  Let  us  test  it 
by  ordinary  and  familiar  principles. 

It  is  suggested  that  it  might  lead,  and  if  entered  upon  must  neces 
sarily  lead,  if  the  parties  think  fit,  to  an  investigation  of  the  personal 
qualifications  of  every  one  among  the  millions  of  electors,  and  that  if 
you  lay  down  the  rule  or  adopt  the  principle  that  you  have  a  right  to 
investigate  at  all,  you  open  the  door  to  that  inconvenient  and  bound 
less  sea  of  litigation.  The  mischief  of  this,  they  say,  would  be  so  great 
that  it  is  better  to  let  injustice  triumph  and  permit  a  usurper  to 
enter  the  executive  office  by  the  most  unholy  of  avenues,  that  which 
is  paved  with  falsehood,  fraud,  and  corruption.  They  say  it  is  better 
to  submit  to  all  that  or  any  other  more  enormous  evil,  if  a  more 
enormous  one  can  be  imagined,  than  to  submit  to  the  shocking  and 
monstrous  inconvenience  that  is  thus  to  result  from  any  attempt  to 
inquire  into  the  validity  of  the  election  ! 

There  is  really  nothing  in  this  broadly  presented  picture  of  over 
whelming  inconvenience.  They  say  no  matter  how  we  should  limit 
our  inquiries  to  a  very  narrow  range,  for  if  you  allow  any  investiga 
tion  you  will  establish  the  doctrine,  you  will  open  the  door  to  intol 
erably  protracted  litigation.  This  suggestion  is  not  warranted  by  law 
or  the  practice  of  courts  in  such  investigations.  True  it  is  that  iu  a 
writ  of  quo  warranto  to  inquire  into  the  title  of  an  individual  to  an 
office  it  is  competent  to  investigate  all  the  particulars  down  to  the 
qualifications  of  each  individual  voter  and  on  a  point  of  identity 


ELECTORAL  COMMISSION. 


35 


similar  to  that  which  occurred  in  the  Tichborno  case  one  trial  might 
take  many  years.  This  is  presenting  a  "raw  head  and  bloody  bones  " 
to  frighten  this  Commission  and  the  whole  country  from  its  propriety. 

The  answer  to  all  that  is  as  simple  as  can  possibly  be  imagined. 
The  objection  you  perceive  applies  as  much  to  ordinary  writs  of  quo 
warranto  in  reference  to  ordinary  offices  as  it  does  to  this  inquiry  if 
it  should  take  place  before  Congress.  But  this  argument  ab  incon- 
venienti  is  as  fatal  to  the  general  procedure  of  courts  of  justice  in 
actions  of  quo  warranto  as  it  is  to  the  proceeding  here  suggested. 

But,  if  the  learned  Commission  please,  the  investigation  which 
might  be  allowed  to  take  place  before  either  House  of  Congress  or  any 
commission  appointed  by  them,  would  be  governed  by  the  same  prin 
ciples  of  general  jurisprudence  which  apply  to  the  determination  of 
proceeding  by  quo  warranto ;  and  one  of  those  principles  is  that  no 
man  has  a  right  to  the  writ  of  quo  warranto  as  of  course  or  merely  be 
cause  he  makes  out  an  apparent  title.  It  has  always  been  a  matter 
of  discretion.  Numerous  cases  are  cited  here  for  that  purpose  on  the 
other  side.  It  has  always  been  treated  as  a  matter  of  discretion  in 
the  power  of  the  supreme  tribunal  which,  acting  in  the  name  and 
majesty  of  the  sovereign  power,  when  applied  to  for  a  writ  of  quo  war 
ranto,  to  allow  it  or  not  as  under  all  the  circumstances  may  be  thought 
most  consistent  with  the  public  interest  and  the  ends  of  justice  and 
the  convenience  of  society;  and,  by  consequence,  this  expanded  in 
quiry  could  never  take  place  in  the  writ  of  quo  warranto ;  it  never 
would  be  allowed ;  no  court  would  ever  permit  the  writ  to  issue  with 
out  a  statement  of  the  points  intended  to  be  made;  and,  if  it  were 
necessary  in  allowing  the  writ  the  court  would  lay  their  restraint  on 
the  party  as  to  what  points  or  questions  he  might  make. 

So  it  appears  that  in  all  investigations,  judicial  or  otherwise,  as  to 
the  right  of  a  particular  individual  to  hold  and  exercise  a  public  of 
fice,  it  is  in  the  discretion  of  the  tribunals  how  far  they  will  go,  and 
it  is  in  your  discretion,  as  it  would  be  in  the  discretion  of  either  House 
of  Congress  investigating  for  its  own  advice  and  direction,  as  to  the 
election  of  President  or  the  Vice-President,  to  determine  whether 
they  would  permit  any  of  these  intolerably  prolix  investigations. 

So  much  for  the  argument  ab  inconvarienti.  It  has  no  application. 
Standing  upon  the  ancient  practices  of  the  law,  the  authority  that 
might  be  called  upon  to  institute  an  investigation  would  look  at  the 
difficulty  presented  and  say  under  the  influence  of  a  due  regard  to  the 
argument  ab  inconvenienti,  u  thus  far  you  may  go  ;  no  farther  shall 
you  go." 

Now  in  reference  to  the  legal  question  presented,  as  to  what  powers 
each  House  of  Congress  has,  under  existing  laws,  and  what  powers 
consequently  you  can  exercise,  we  say,  as  the  learned  manager  from 
the  House  said  in  opening  this  case,  that  there  is  no  technical  legal 
limit  or  barrier,  but  that  you  exercise  the  same  high  power  of  the 
Government  which  has  always  been  exercised  in  such  questions  even 
in  the  courts  of  the  common  law  to  which  application  must  be  made 
to  obtain  the  writ  of  quo  warranto.  You  exercise  the  same  discretion, 
but  you  can  limit  the  inquiry,  when  the  point  arises,  within  those 
limits  that  are  prescribed  by  necessity  and  convenience. 

Now  this  is  our  view  stated  as  fully  as  it  is  in  my  power  to  state 
it  in  the  brief  time  I  am  permitted  to  occupy  the  attention  of  your 
honors.  We  say  that  there  is  no  limit  to  the  power  of  investigation 
for  the  purpose  of  reaching  the  ends  of  justice,  except  such  as  a  due 
regard  for  public  convenience  and  the  interests  of  public  justice  and 
society  at  large  may  impose  in  the  exercise  of  this  discretionary  au 
thority. 

Well,  what  is  our  condition  and  the  condition  of  all  cases  of  this 
kind  ?  There  is  no  judicial  court  of  the  United  States  clothed  with 
authority  to  deal  with  the  premises.  We  assert  that  without  stop 
ping  to  cite  books  and  to  prove  it  to  you  negatively.  It  seems  to  be 
conceded  that,  if  such  a  power  might  have  been  created,  it  has  re 
mained  dormant  and  has  not  been  exercised.  And  consequently  we 
are  told  that  here  we  stand  in  the  second  century  of  this  Republic's 
existence  in  such  a  condition  that  there  is  no  possible  remedy  against 
the  most  palpable  fraud  and  forgery  that  could  be  perpetrated  or 
against  any  outrageous  acts  in  violation  of  the  rights  of  the  people 
of  the  respective  States  and  of  the  whole  nation;  that  Congress  must 
sit  by  blind  and  silent  and  permit  an  alien  to  be  counted  into  office 
as  President  of  the  United  States;  they  must  sit  by  and  permit  a  set 
of  votes  plainly  and  palpably  fraudulent,  votes  given  by  individuals 
not  only  disqualified  for  want  of  having  been  chosen  by  the  States 
but  being  themselves  absolutely  disqualified  by  the  Constitution  from 
acting  in  the  office  or  casting  the  vote,  and  must  permit  the  usurpa 
tion  contemplated  to  take  place  merely  because  our  wise  fathers — 
one  would  think  that  the  compliment  was  intended  as  a  sarcasm — 
had  sochosen  tocoustitute  the  Government  they  created  that  injustice, 
however  flagitious,  might  be  perpetrated  in  open  day  without  the 
possibility  of  having  any  remedy  or  even  uttering  decorously  a  com 
plaint. 

This,  we  humbly  submit,  cannot  be  the  Constitution  and  the  law. 
Reason  forbids.  All  acts,  however  solemn,  however  sacred,  from  what 
ever  quarter  coming,  by  whatever  body  perpetrated,  are  liable  to  re 
view  in  some  manner,  in  some  judicial  or  other  tribunal,  so  that  fraud 
and  falsehood  may  shrink  abashed  and  defeated  and  may  fail  in  the 
attempt  to  trample  upon  the  right. 

It  seems  to  be  virtually  conceded  here  that  the  governor's  certifi 
cate  is  not  conclusive.  I  have  not  time  to  say  much  about  that.  It 
is  not  required  by  the  Constitution.  It  is  only  required  by  an  act  of 


Congress.  The  governor  could  not  have  been  compelled  to  give  it. 
Many  circumstances  might  prevent  his  giving  it ;  and  he  might  have 
given  it  under  circumstances  of  plainly  flagitious  falsehood,  without 
any  election,  without  any  proceeding  had  to  sanction  it.  He  might 
have  given  his  certificate  to  his  own  four  little  boys  and  constituted 
them  an  electoral  college,  and  the  vote  which  they  gave  pursuant  to 
his  bidding,  by  force  of  his  certificate,  would  be  absolutely  conclusive, 
forsooth,  and  binding  upon  all  the  authorities  of  the  United  States 
that  had  any  power  to  act  in  the  premises! 

I  submit  to  your  honors  that  this  is  not  so,  and  I  beg  you  to  turn, 
when  you  come  to  consider  this  matter,  to  the  citation's  of  the  Ar- 
mistad  case  in  Mr.  Green's  brief,  15  Peters,  5(J4,  where  the  Supreme 
Court,  speaking  by  the  voice  of  Judge  Story,  pronounced  all  decisions 
of  every  description,  however  solemn,  impeachablo  for  fraud  and  capa 
ble  of  being  reversed.  In  the  case  of  the  State  of  Michigan  vs.  Phoenix 
Bank,  in  33  New  York — I  will  refer  to  the  particular  page,  though  I 
will  not  stop  to  read  it — page  27,  your  honors  will  find  that  the  most 
solemn  judgments  of  any  court  may  be  overhauled  and  reviewed  and 
be  shown  to  have  been  procured  by  a  trick,  a  deception,  or  a  false 
hood,  and  may  be  completely  reversed  and  defeated. 

The  inquiry  then  is,  How  far  are  we  to  go  in  this  case?  The  Flor 
ida  laws  to  which  you  have  been  referred  show  that  it  may  not  be 
necessary  to  go  further,  and  we  have  not  asserted  that  it  will  be  nec 
essary  to  go  further,  than  to  make  a  correction  of  the  unlawful 
extrajudicial  acts  of  the  canvassing  board.  When  you  come  to  look 
at  the  law  which  is  contained  in  the  little  document  placed  before 
you,  at  page  55,  you  will  find  that  there  is  no  such  sanctity  attending 
the  action  of  this  State  board  as  is  supposed.  They  have  but  little 
power  in  the  matter. 

If  any  sucli  returns — 

That  is  the  county  returns  to  them — 

shall  bo  shown  or  shall  appear  to  ho  so  irregular,  false,  or  fraudulent  that  the 
board  shall  be  unable  to  determine  the  true  vote  for  any  such  oflicer  or  member, 
thev  shall  so  certify,  and  shall  not  include  such  return  in  their  determination  and 
declaration  ;  and  the  secretary  of  state  shall  preserve  and  file  in  his  office  all  such 
returns,  together  with  such  other  documents  and  papers  as  may  have  been  received 
by  him  or  by  said  board  of  canvassers. 

One  of  which  must  be  the  certificate  of  their  action  rejecting  these 
returns.  The  law  itself  providesfor  and  contemplates  an  investigation 
of  the"  action  of  the  board  of  State  canvassers,  and  turning  back  to 
the  laws  in  relation  to  the  county  board  of  canvassers  and  to  the  in 
spectors  of  elections,  you  find  that  neither  of  those  bodies  has  any 
power  whatever  except  simply  to  compute  and  return  the  vote  as  re 
ceived.  Such  is  the  case  as  to  the  primary  board  of  canvassers  and 
the  second  board  of  canvassers,  and  the  last  and  ultimate  board  of 
coavassers  have  these  very  limited  powers  which  they  seem  to  have 
exercised  only  in  respect  to  one  single  county  if  you  are  to  take  our 
assertions  as  an  evidence  of  the  probable  lino  of  proof  before  you,  be 
cause  they  rejected  some  little  fragments  of  three  other  counties,  but 
did  not  exercise  the  power  of  rejecting  the  whole  of  these  returns, 
which  was  the  only  power  that  they  possessed.  In  one  single  county 
they  seem  by  some  human  possibility  to  have  acted  within  the  limits 
of  their  power  and  authority ;  I  say  it  may  be  supposed  rather  that  by 
some  human  possibility  they  did  act  within  them.  We  purpose  to 
show  that  they  did  not.  We  show  it  by  their  own  certificate  which 
the  law  compelled  them  to  file  and  place  along  with  the  canvass 
which  they  made,  and  which,  very  short,  brief ,  and  simple,  will  dem 
onstrate  the  monstrosity  of  the  deed  that  we  seek  to  set  aside. 

We  claim  that  the  quo  warranto  is  admissible.  You  will  perceive 
by  looking  at  that  same  statute  to  which  we  have  referred  that  un 
less  the  electors  are  State  officers  this  canvassing  board  had  no  au 
thority  whatever  to  deal  with  the  subject,  and  you  would  be  called 
upon  to  disregard  the  canvass  which  they  made  and  to  look  at  the 
county  returns  which  the  law  does  authorize  to  be  made  in  reference 
to  presidential  electors  as  well  as  State  officers,  in  terms.  If  they 
are  State  officers,  surely  they  were  subject  to  correction  by  the  State 
if  there  were  any  possible  means  or  contrivance  by  which  they  could 
be  corrected  at  all ;  and  the  familiar,  ordinary,  regular  course  of  pro 
ceeding  by  quo  warranto  was  commenced  in  due  season,  before  they 
had  actually  cast  their  vote,  and  their  authority  was  determined  to 
be  utterly  void,  it  was  annulled,  and  that,  too,  long  before  their  vote 
had  reached  the  seat  of  Government  or  could  possibly  have  been  sub 
jected  to  count.  If  they  fire  not  State  officers,  then  we  have  done 
with  the  canvass  of  the  State  board  and  have  only  to  look,  in  case 
you  pass  by  the  governor's  certificate,  to  the  next  element  of  proof, 
and  that  is  the  whole  set  of  county  returns,  which  being  footed  up 
would  show  the  result  to  be  as  we  claim  and  that  the  governor's  cer 
tificate  was  utterly  false. 

Subsequent  legislation  hasbeen  placed  before  your  honors  and  a  sub 
sequent  investigation  for  the  purpose  of  a  recanvass,  or  will  be  be 
fore  your  honors  if  necessary ;  indeed  it  is  before  your  honors  already 
in  the  original  documents  opened  by  the  President  of  the  Senate  and 
which,  at  least,  are  here. 

We  claim  that  on  these  principles  and  on  these  proofs  and  such  full 
proofs  as  may  be  offered  to  you  subject  only  to  the  restraint  to  which 
I  have  referred,  that  you  may  exercise  in  your  discretion,  you  have  a 
right  to  go  on  to  investigate  this  matter  and  to  determine  two  things  : 
first,  whether  the  Hayes  electoral  vote  is  valid,  and,  second,  whether 
the  Tilden  electoral  vote  is  valid.  The  final  decision  at  which  you 
may  arrive  might  reject  either  or  might  reject  both.  JTliey  are  not 


ELECTORAL  COMMISSION. 


involved  in  precisely  the  same  question  necessarily.  Different  ques 
tions  might  possibly  apply,  and  the  vote  for  Mr.  Hayes  might  be  pro 
nounced  invalid  and  the  vote  for  Mr.  Tilden  equally  so.  I  have  not 
time  to  discuss  more  fully  the  question  as  to  the  right  of  setting  up 
the  Tilden  vote  in  case  the  Hayes  vote  should  be  rejected. 

Perhaps  in  the  little  time  that  is  left  to  me  I  have  hardly  an  op 
portunity  of  saying  one  word  in  reference  to  that  which  is  the  main 
reliance  of  these  parties,  and  that  is  the  doctrine  of  officer  de  facto. 

What  is  this  doctrine  of  officer  defaclo?  The  best  definition  of  an 
officer  de  facto  that  I  have  fallen  in  with  is  given  by  Lord  Ellen- 
borough,  in  the  King  vs.  The  Corporation  of  Bedford  Level,  6  East., 
368: 

An  officer  de  facto  is  ono  who  has  the  reputation  of  being  the  officer  he  assumes 
to  be,  and  yet  is  not  a  good  officer  in  point  of  law. 

One  who  somehow  has  clothed  himself  with  a  reputation  of  being 
officer;  and  in  relation  to  that  person  the  law  with  its  wise  conserv 
atism  has  declared  that  during  the  period  that  the  person  pretend 
ing  title  to  the  office  was  in  apparent  possession  of  all  its  powers  and 
functions  and  exercised  the  duties  of  it,  his  acts  as  it  respects  persons 
who  in  the  ordinary  course  of  tilings  were  obliged  to  recognize  him 
and  to  act  under  him  and  in  conformity  with  his  directions  and  his 
power,  shall  be  esteemed  valid  that  individuals  may  not  be  deceived 
by  this  species  of  disorder  or  temporary  insurrection  that  has  broken 
in  upon  the  functions  of  government. 

It  is  the  duty  of  individuals,  and  they  are  under  a  necessity  also 
for  their  own  business  purposes,  of  bowing  to  the  existing  authorities 
who  have  thus  color  of  right  and  are  the  only  authorities  to  which 
they  could  refer,  and  in  that  action  as  a  reward  for  their  humble  obe 
dience  and  respect  for  order,  regularity,  and  the  apparent  law,  they 
are  held  to  be  entitled  to  protection,  and  in  all  forms,  ways,  and 
places  that  may  be  needed  they  are  protected.  The  officer  himself, 
however,  is  never  protected.  That  this  is  the  precise  rule  in  relation 
to  that  class  of  officers,  I  would  take  leave  to  prove  by  referring  your 
honors  to  Green  vs.  Burke,  23  Wendell,  502,  where  a  very  able  opinion 
was  written  by  one  of  the  most  elaborate  investigators  of  legal  au 
thorities  that  i  have  known  or  ever  heard  of,  Judge  Coweu,  formerly 
of  the  State  of  New  York.  The  cases,  to  be  sure,  have  gone  pretty 
far.  He  examined  all  the  authorities,  and  what  he  says  is: 

I  know  the  cases  hare  gone  a  great  way;  but  they  have  stopped  with  preventing 
mischief  to  such  as  conliuo  in  officers  who  ave  acting  without  light. 

A  summing  up  of  the  authorities  and  of  the  principle. 

Now,  what  is  the  proposition  here  contended  for  ?  That  these  offi 
cers  having  acted  under  color  of  right,  and  having  completely  exer 
cised  and  perfected  the  function  with  which  they  appeared,  it  is  said, 
to  be  charged,  and  with  which,  if  they  were  duly  elected,  they  were 
charged,  any  subsequent  attempt  to  set'it  aside  would  be  contrary  to 
that  principle,  contrary  to  convenience,  and  mischievous  to  society. 
Is  this  so  ?  Is  not  that  principle  of  necessity  confined  to  acts  affect 
ing  private  persons  ?  Is  not  that  necessity  confined  to  cases  where 
the  act  of  the  officer  de  facto  is  consummated  and  perfected  and  has 
taken  effect  in  some  manner  before  it  is  ascertained  that  he  is  not 
entitled  to  his  office  and  he  is  ousted  ?  Are  the  bank-notes  of  a  bank 
not  having  authority  to  issue  them,  though  signed,  perfected,  and 
finished  and  put  in  the  hands  of  an  agent,  valid  and  effectual  under 
this  principle  until  some  person  has  confided  in  them,  has  received 
them  and  thus  been  misled  by  the  appearance  of  right  with  which 
the  bank  had  improperly  clothed  itself  ? 

We  maintain  that  neither  the  public  good  nor  the  protection  of 
men  from  deception,  nor  any  rule  of  convenience  or  policy,  requires 
the  allowance  of  pretended  electors,  whose  title,  on  an  investigation 
by  competent  authority  before  the  votes  have  been  opened  and 
counted,  has  been  ascertained  to  be  groundless. 

Referring  to  the  facts  of  the  case,  what  do  we  find?  'These  four 
gentlemen  sat  down  with  a  false  governor's  certificate  or  a  sham  cer 
tificate  from  a  board  of  State  canvassers,  and  they  of  their  own  au 
thority,  certifying  their  acts  themselves,  cast  four  votes  in  a  given 
direction,  put  them  in  a  packet,  and  sent  it  to  an  officer  who  cannot 
look  at  it  until  the  time  of  its  presentation  for  the  purpose  of  being 
considered  and  counted.  Before  the  time  arrived  at  which  that  act 
of  theirs  could  deceive  anybody,  could  have  any  operation,  could  take 
any  effect,  could  get  into  such  a  condition  that  its  preservation  and 
maintenance  was  necessary  to  the  cause  of  public  justice  or  pri 
vate  right,  their  lack  of  title  was  ascertained  by  a  solemn  writ  of 
quo  warranto  to  be  groundless;  it  was  determined  that  they  were 
usurpers,  had  no  right  to  the  office,  and  that  their  acts  were  void.  Is 
there  any  such  principle  as  that  the  inchoate,  partial  action  of  an 
officer  de  facto  shall  be  carried  onward,  carried  forward,  and  given 
its  perfection  by  the  acceptance  of  the  act  as  a  duo  and  valid  act 
after  the  invalidity  of  that  officer's  claim  has  been  established.  There 
we  repose,  upon  the  quo  warranto  under  your  honors'  allowance,  or 
repose  upon  the  proofs  which  may  be  hero  offered,  admitted,  and 
passed  upon  by  your  honors  for  the  purpose  of  showing  the  utter  in 
validity  of  these  gentlemen's  claim  to  the  office  of  electors.  In  which 
ever  shape  this  matter  is  presented  or  carried  forward,  that  the  act 
of  these  officers  defaclo  fails  to  have  reached  the  point  where  it  could 
have  or  take  any  effect  or  mislead  or  deceive  anybody  is  shown  and 
established  by  competent  means  to  be  an  act  of  those  who  had  no  au 
thority  to  perform  it. 

And  the  position  of  the  thing  is  very  striking  in  this  singular  atti 
tude  which  the  other  side  have  assumed,  the  attitude  of  an  undoubted, 


undisputed,  convicted  usurper.  They  claim  to  be  received  and  that 
their  act  shall  have  an  effect  which  as  yet  it  never  has  had,  although 
since  the  time  they  performed  the  initiatory  and  preliminary  step 
they  have  been  shown  to  be  utterly  without  right  to  their  pretended 
offices.  It  may  be  said  that  this  sharpened  arrow  aimed  at  the  heart 
of  the  nation, 'aimed  for  the  purpose  of  establishing  falsehood,  scat- 
ing  a  usurper,  and  trampling  down  the  right  of  the  State  and  of 
the- Union— it  maybe  said  that  this  arrow  was  placed  in  the  bow  of  the 
false  elector,  that  adequate  force  and  strength  were  imparted  to  it 
to  carry  it  to  the  bosom  that  was  to  be  wounded  and  stung  to  death 
by  it;  but  it  cannot  be  denied,  if  the  quo  warranto  is  effectual,  or  if 
we  have  a  right  now  to  prove  the  facts  of  the  case,  that  a  shield  is 
interposed  between  the  wrong-doer's  arrow  and  the  bosom  he  designed 
to  pierce,  by  which  that  arrow,  steeped  in  guilt  and  fraud,  designed 
for  the  perpetration  of  injustice  and  the  consummation  of  an  atro 
cious  wrong,  has  been  arrested  in  its  flight  and  deprived  of  its  poison 
and  its  force. 

In  this  connection,  under  this  strange  head  of  a  claim  to  have  a 
de  facto  President  by  force  of  a  set  of  de  facto  electors,  I  would  call 
your  honors'  attention  to  a  single  view  of  which  this  case  is  suscep 
tible.  Although  there  may  be  an  officer  dc  facto  it  seems  to  be  in 
the  nature  of  things  that  there  cannot  be  an  unlawful,  unauthorized 
tribunal  or  body  dc  facto  acting  without  right.  These  persons  could 
not  act  except  by  constituting  what  has  been  well  enough  called  an. 
electoral  college,  of  which  they  were  to  be  the  members.  They  un 
dertook  to  constitute  it.  It  was  an  electoral  college  of  their  own. 
They  filled  it  all  up  with  their  own  wrongful  claims  and  intrusive 
persons,  and  thus  sought  to  create  by  wrong  and  without  one  single 
element  of  right  but  this  mere  color  or  reputation  resting  in  these 
individuals  a  lawful  electoral  college.  I  would  ask  your  honors  for 
the  purpose  of  showing  that  that  distinction  is  entitled  to  consider 
able  weight  to  refer  to  the  case  of  Hildreth's  Heirs  against  Mclntyre's 
Devisee,  (1  J.  J.  Marshall's  Kentucky  Reports,  206',)  where  certain  per 
sons,  being  no  doubt  de  facto  officers,  claimed  that  they  had  estab 
lished  a  de  facto  court;  and  the  determination,  upon  very  good  rea 
soning  which  I  submit  to  your  honors'  consideration,  was  that  there 
could  not  be  a  de  facto  court,  although  there  might  be  a  de  facto  judge 
or  a  de  facto  officer;  and  wo  say  by  the  same  reasoning  there  cannot 
be  an  tmlawful  de  facto  electoral  college  composed  of  mere  pre 
tenders  to  that  office  who  have  no  right. 

In  this  connection  you  have  exactly  the  case  that  was  before  the 
court  there  and  which,  perhaps,  exists  in  other  States  of  this  Union 
about  this  time.  You  have  the  case  of  two  distinct  bodies  existing 
at  the  same  time,  one  rightful  and  the  other  wrongful ;  I  mean  formal 
bodies  attempted  to  be  created.  The  Tilden  electors  who,  though 
they  had  not  documentary  evidence  to  establish  their  title,  had  act 
ually  been  elected,  if  our  evidence  is  to  be  believed,  convened  their 
electoral  college,  performed  every  ceremony  that  the  Constitution  of 
the  United  States  enjoined  upon  them,  performed  every  ceremony 
that  the  laws  of  the  United  States  enjoined  upon  them  and  that  it 
was  possible  to  perform,  failing  only  in  this,  that  they  did  not  obtain 
the  certificate  of  the  governor.  They  met ;  they  constituted  a  col 
lege;  they  acted;  and  they  sent  forward  their  votes.  Thus  you  have 
two  rival  bodies  acting  at,  to  be  sure,  the  right  time  aud  in  the  right 
place,  as  prescribed  by  all  laws  bearing  on  this  subject;  two  rival  col 
leges,  one  of  which  was  composed  of  persons  truly  elected,  the  other 
of  which  was  composed  of  persons  who  had  no  right,  but  only  the 
mere  color  of  pretense  of  right,  who  were  usurpers,  as  has  been  ascer 
tained  in  ono  form  and  will  bo  ascertained  in  any  other  that  will  be 
satisfactory  to  you,  if  you  will  permit  us  to  present  the  evidence. 

This,  then,  is'  the  actual  condition  of  this  case.  The  Constitution 
prescribes  no  forms  save  such  as  have  been  complied  with  by  the 
Tilden  electors ;  the  laws  of  Congress  prescribed  no  forms  that  were 
not  complied  with  by  the  Tilden  electors,  save  aud  except  only  that 
they  could  not  obtain  the  governor's  certificate;  and  it  is  pretty  much 
conceded,  I  think,  that  the  governor's  certificate  is  not  absolutely  in 
dispensable,  aud  might  be  gainsaid  and  contradicted  even  if  it  had 
been  given. 

So,  then,  in  this  case  of  rivalry  between  these  two  sets  of  electors 
it  appears  to  me  that  we  present  the  best  legal  title.  That  we  have 
the  moral  right  is  the  common  sentiment  of  all  mankind.  It  will  be 
the  judgment  of  posterity.  There  lives  not  a  man,  so  far  as  I  know, 
upon  the  face  of  this  earth  who,  having  the  faculty  of  blushing, 
could  look  an  honest  man  in  the  face  and  assert  that  the  Hayeselectors 
were  truly  elected.  The  whole  question,  therefore,  is  whether,  in 
what  has  taken  place,  there  has  been  such  an  observance  of  form  as 
is  totally  fatal  to  justice  aud  beyond  the  reach  of  any  curative  proc 
ess  of  any  description. 

I  have  just  about  time  left  to  say  that  it  was  not  intentional  that 
the  law  of  Florida  in  relation  to  writs  of  quo  warranto  was  omitted. 
I  have  copies  of  it  enough  here,  I  think,  to  deliver  to  the  court ;  but 
I  found,  on  looking  about  after  an  observation  was  made  about  it, 
that  I  have  not  any  of  them  here.  I  will  have  them  delivered  to  the 
court.  They  were  printed  long  ago,  with  the  view  of  having  them 
sent  up,  but  the  gentleman  who  prepared  those  copies  of  some  of  the 
laws  hero  did  not  insert  it.  Perhaps  it  was  because  he  knew  it  was 
already  printed,  and  thought  it  ought  to  be  here.  I  have  not  had 
time  to  inquire  into  that,  nor  is  it  at  all  necessary.  That  law  is  to 
be  found  in  the  laws  of  Florida  for  1872,  page  29.  It  will  be  found 
that  it  does  not  confine  the  effect  of  the  quo  warranto  to  the  parties 


ELECTORAL  COMMISSION. 


37 


prosecuting;  that  it  does  not  in  any  way  impair  or  diminish  or  lessen 
the  force  and  elfect  of  the  judgment  in  q&owarranto  at  the  suit  of  the 
rival  claimant,  who  was  justly  entitled  to  the  office  except  in  this: 
it  provides  in  section  3  that,  w'hile  the  judgment  is  to  have  full  effect 
and  to  entitle  the  relator  to  be  placed  in  the  office  until  ho  is  ousted, 
the  judgment  in  the  case  shall  not  have  conclusive  effect  as  against 
the  State  in  case  the  State  shall  prosecute  another  qno  icarranto  in 
its  own  behalf  against  the  party  who  was  successful  in  the  first. 
That  is  all  that  that  law  requires!  It  in  no  way  changes  or  dimin 
ishes  the  effect. 

Now,  I  think  I  have  observed  as  much  as  was  any  way  needful 
upon  the  other  questions  as  to  what  evidence  is  admissible  here.  I 
conceive  that  the  propositions  we  have  advanced  have  the  effect  of 
eulitling  us  to  produce  any  evidence  hero  which  either  of  the  Houses 
of  Congress  prosecuting  an  investigation  of  this  description  might 
lawfully  receive,  and  that  we  are  subject  here  only,  as  we  would  be 
before  one  of  the  Houses  of  Congress,  to  the  discretion  which  I  have 
before  referred  to,  by  which  you  can  restrain  us  as  you  can  restrain 
the  other  party  from  going  into  interminable  and  absurd  inquiries. 

As  to  what  is  actually  here  the  course  of  my  argument  has  been  in 
tended  to  establish,  and,  if  of  any  value,  has  established  that  each 
House  of  Congress  had  jurisdiction  of  the  matter,  each  of  them  at 
least  of  one  section  of  it,  and,  therefore,  that  the  evidence  which, 
according  to  the  customs  and  usages  of  legislative  bodies,  either 
House  has  taken  and  has  upon  its  files  and  will  consent  to  send  in 
here  or  has  sent  in  here  at  our  request  is  already  in  evidence  in  the 
case,  so  far  as  to  bo  here,  to  be  read  if  it  comes  within  the  range  of 
subjects  as  of  matter  of  fact  which  you  will  allow  us  to  investigate ; 
it  is  as  good  evidence  as  if  we  produced  witnesses  or  documents  here 
at  the  bar  and  examined  them  according  to  the  usages  of  the  com 
mon  law. 

Mr.  EVARTS.  Your  honors  will  allow  me  to  refer  to  page  32  of 
the  CONGRESSIONAL  RECOKD  of  February  3,  which  I  omitted  to  do, 
though  I  had  the  passage  marked,  to  indicate  the  result  of  the  dif 
ferent  computations  under  the  new  statute  and  under  the  quo  icar- 
ranto  and  under  the  mandamus,  all  ending  in  canvasses  that  resulted 
in  favor  of  the  Hayes  electors. 

Mr.  O'CONOR.  This  matter  in  a  newspaper  is  certainly  not  to  be 
accepted  here  as  evidence.  It  is  a  report  of  a  minority  of  a  committee 
of  Congress. 

Mr.  Commissioner  EDMUNDS.  We  have  not  admitted  any  evi 
dence  of  this  kind  yet. 

Mr.  O'CONOR.  But  your  honors  will  permit  us  to  say  that  this  is 
brought  forward  as  matter  of  fact.  We  have  not  relied  on  being 
able  to  establish  facts  by  the  reports  of  certain  gentlemen  in  Congress. 
It  is  the  evidence  which  they  took  on  which  we  rely.  If  these  re 
ports  as  reports  the  opinions  of  these  gentlemen  are  evidence,  very 
well ;  let  us  understand  it. 

The  PRESIDENT.     The  reference  to  it  does  not  make  it  evidence. 

Mr.  EVARTS.  I  do  not  offer  it  as  evidence,  but  I  offer  it  for  your 
honors'  information,  and  in  answer  to  the  intimation  of  the  learned 
counsel  that  every  man,  woman,  and  child  knew  that,  if  the  canvass 
was  not  so,  then  the  Hayes  electors  were  not  chosen. 

Mr.  O'CONOR.     It  will  be  very  apparent. 

Mr.  EVARTS.    This  is  the  matter  to  which  I  refer : 

As  a  siimmary  of  the  various  ways  of  estimating  the  vote  of  the  State  of  Florida 
on  the  7th  of  November,  the  minority  submit  the  following: 

I.  If  the  vote  be  reckoned  by  the  face  of  tho  returns  which  wore  opened  by  tho 
board  on  tho  28th  of  November,  and  unanimously  declared.  (Attorney-General 
Cocke  concurring,)  under  the  rule  of  the  board,  to  bo  tho  regular  returns,  having 
all  the  legal  formalities  complied  with,  the  majority  for  tho  Hayes  electors  is  43. 

II.  If  the  vote  be  reckoned  by  the  oflicial  statutory  declaration  of  ihe  canvassing 
hoard  exercising  its  jurisdiction  under  the  £tate  statute,  in  accordance  with  the 
practice  adopted  without  objection,  and  by  the  advice  of  the  democratic  attorney- 
general,  Cocke,  and  never  disputed  until  the  result  of  this  canvass  was  aboujttobe 
determined,  which  declaration  in  the  belief  of  the  minority  is  filial  and  irreversible, 
the  majority  for  the  Hayes  electors  is  925. 

III.  if  th'e  vote  bo  reckoned  upon  the  principles  laid  down  by  the  supreme  court 
in  their  order  to  recanvass  in  the  case  of  Drew  vs.  Governor  Stearus,  of  not  purg 
ing  tho  polls  of  illegal  votes  and  retaining  the  true  vote,  but  of  rejecting  tho  whole 
county  return  when  appearing  or  shown  to  be  so  irregular,  false,  or  fraudulent  that 
the  true  vote  could  not  be  ascertained,  tho  result  would  bo,  according  to  the  declara 
tion  of  the  board,  a  majority  for  tho  Hayes  electors  of  211. 

IV.  If  tho  board  had  thoroughly  reconsidered,  according  to  the  decision  of  the 
supreme  court,  the  various  county  returns  for  the  purpose  of  throwing  out  in  toto  all 
that  could  be  shown  to  he  irregular,  false,  or  fraudulent,  instead  of  purging  the  re 
turns  of  their  illegalities  and  returning  the  true  vote,  there  should  be  thrown  out 
the  returns  from  the  following  counties — 


Counties. 

Tilden 
electors. 

Hayes 
electors. 

238 
2S7 
C17 
1,397 
262 

143 
122 
330 

1,299 
26 

1,  920 

Clay   

Hamilton  

Jackson  

Manatee  ...          

Total  

2,  801 

leaving  a  majority  for  the  Hayes  electors  of  791. 
V.  If  the  vote  of  the  State  were  to  be  estimated  according  to  tho  honest  and  true 
vote  of  the  people  at  the  polls,  without  regard  to  precinct,  county,  or  State  can 
vassers,  tho  result  would  be,  according  to  the  judgment  of  the  minority,  a  larger 
majority  for  tho  Hayes  electors  than  tho  declared  majority  of  925. 

Mr.  Commissioner  HOAR.  Can  counsel  on  either  side  furnish  tho 
Commission  with  a  copy  of  the  Florida  quo  warranto  law  mentioned 
to-day  ? 

Mr.  EVARTS.  I  have  handed  it  to  the  clerk,  who  will  have  it 
printed.  I  believe  the  court  understands  that  that  is  a  law  amend 
ing  the  general  quo  icarranto  law  which  is  found  in  another  place. 

Mr.  MERR1CK.  If  your  honors  please,  may  we  be  allowed  to  file  with 
the  Secretary  in  a  very  short  time  a  memorandum  of  authorities  and 
citations  from  them  which  we  have  had  printed  for  the  convenience 
of  tho  Commission,  and  which  was  to  have  been  here  this  morning, 
Lmt  has  not  yet  come  to  hand,  although  we  expect  to  receive  it  in  tho 
course  of  a  very  few  minutes. 

The  PRESIDENT.  Mr.  Merrick  asks  leave  to  file  a  printed  list  of 
au!  horities  which  he  hopes  to  receive  in  a  few  minutes.  Shall  he  have 
that  leave ! 

Leave  was  granted. 

Mr.  EVARTS.  We  ought  to  be  able  to  place  in  your  honors'  hands 
a  printed  list  of  authorities. 

Tho  PRESIDENT.  It  is  so  eminently  just,  if  allowed  on  one  side, 
that  the  same  right  ought  to  be  accorded  to  the  other,  that  I  will 
take  the  privilege  of  giving  the  consent  without  putting  the  ques 
tion  to  the  Commission. 

On  motion,  the  Commission  took  a  recess  for  three-quarters  of  an 
hour.  On  re-assembling  at  three  o'clock  and  fifteen  minutes  p.  m., 
the  Commission  proceeded  to  deliberate  with  closed  doors.  After 
some  time  spent  in  deliberation,  the  Commission  adjourned  till  to 
morrow  at  twelve  o'clock. 

Tho  room  being  cleared,  and  the  doors  closed,  the  Commission,  at 
three  o'clock  and  fifteen  minutes,  met  for  deliberation  as  to  whether 
any,  and  what  evidence  would  be  considered  in  the  matter  of  tho 
electoral  vote  of  the  State  of  Florida. 

On  motion  of  Commissioner  THURMAN, 

Ordered,  That  tho  public  session  of  tho  Commission  bo  adjourned  until  day  after 
to-morrow,  (Wednesday,  the  7th  instant,)  at  eleven  o'clock  a.  m. 

After  some  time  spent  in  deliberation,  at  three  o'clock  and  forty- 
five  minutes  the  Commission  adjourned. 


TUESDAY,  February  6,  1877. 

Tho  Commission  met  at  ten  o'clock  a.  m.  pursuant  to  adjournment, 
all  the  members  being  present. 

The  Journal  of  yesterday  was  read  and  approved. 

The  Commission  proceeded  to  deliberate  on  the  matters  submitted, 
and  remained  in  deliberation  till  eight  o'clock  p.  m.,  when  it  ad 
journed  until  to-morrow  at  ten  o'clock  a.  m. 


WEDNESDAY,  February  7,  1877. 

The  Commission  met  at  ten  o'clock  a.  m.  pursuant  to  adjournment, 
all  the  members  being  present. 

The  Journal  of  yesterday  was  read  and  approved. 

The  PRESIDENT  stated  that  on  the  5th  instant  an  order  had  been 
made  requiring  an  open  session  of  the  Commission  at  eleven  o'clock  a. 
m.  to-day. 

On  motion  of  Commissioner  FRELINGHUYSEN,  it  was 

Ordered,  That  at  eleven  o'clock  a.  m.,  the  hour  designated  by  the  order  of  the 
5th  instant  requiring  an  open  session,  the  doors  be  considered  as  open,  and  the  Com 
mission  at  once  adjourn  the  same  for  deliberation. 

The  Commission  resumed  its  session  for  deliberation  on  the  ques 
tion  pending  in  the  matter  of  the  electoral  vote  of  tho  State  of  Florida. 

After  debate, 

The  hour  of  eleven  o'clock  a.  m.  having  arrived,  and  the  doors  be 
ing  considered  as  open, 

On  motion  of  Commissioner  MORTON,  it  was 

Ordered,  That  the  public  session  of  the  Commission  adjourn  until  eleven  o'clock 
a.  111.  to-morrow,  the  8th  instant. 

Thereupon,  the  Commission  resumed  tho  session  for  deliberation 
with  closed  doors. 

After  further  debate, 

The  hour  of  three  o'clock  having  arrived,  being  the  time  designated 
by  an  order  of  the  Commission  at  which  the  question  on  tho  matter 
pending  should  be  submitted, 

Mr.  Commissioner  MILLER  moved  the  following  order: 

Ordered,  That  no  evidence  will  bo  received  or  considered  hy  the  Commission 
which  was  not  submitted  to  the  joint  convention  of  the  two  Houses  by  the  Presi 
dent  of  tho  Senate  with  the  different  certificates,  except  such  as  relates  to  the  eli 
gibility  of  F.  C.  Humphreys,  one  of  the  electors. 

The  question  being  on  its  adoption,  it  was  determined  in  the  affirm 
ative  : 


YEAS 

NAYS 


Those  who  voted  in  the  affirmative  are:  Messrs.  Bradley,  Edmunds, 
Frelinghuysen,  Garfield,  Hoar,  Miller,  Morton,  and  Strong. 


38 


ELECTORAL  COMMISSION. 


Those  who  voted  in  the  negative  are :  Messrs.  Abbott,  Bayard,  Clif 
ford,  Field,  Hunton,  Payne,  and  Thurman. 

So  the  motion  of  Mr.  Commissioner  MILLER  was  agreed  to. 
Mr.  Commissioner  ABBOTT  moved  the  following : 

Ordered,  That  in  the  case  of  Florida  the  Commission  will  receive  evidence  relat 
ing  to  the  eligibility  of  Frederick  C.  Humphreys,  one  of  the  persons  named  in  cer 
tificate  No.  1,  as  elector. 

The  question  being  on  its  adoption,  it  was  determined  in  the  affirm 
ative: 

YEAS •  8 

NAYS 7 

Those  who  voted  in  the  affirmative  are  :  Messrs.  Abbott,  Bayard, 
Bradley,  Clifford,  Field,  Hunton,  Payne,  and  Thurman. 

Those  who  voted  in  the  negative  are  :  Messrs.  Edmunds,  Freling- 
Luysen,  Garfield,  Hoar,  Miller,  Morton,  and  Strong. 

So  the  motion  of  Mr.  Commissioner  ABBOTT  was  agreed  to. 

On  motion  of  Mr.  Commissioner  HOAR,  it  was 

Ordered,  That  the  proceedings  of  to-day's  session,  as  entered  in  the  Journal,  be 
read  by  the  Secretary  at  the  public  session  of  the  Commission  to-morrow. 

On  motion  of  Commissioner  THURMAN,  it  was 

Ordered,  That  the  Secretary  of  tho  Commission  is  hereby  directed  to  famish  im 
mediately  to  counsel,  on  both  sides,  copies  of  the  orders  made  to-day,  and  to  notify 
them  that  the  Commission  will  be  ready  at  eleven  o'clock  a.  in.  to-morrow  to  pro- 
coed  with  the  case  now  before  them. 

And  on  motion  of  Mr.  Commissioner  MILLER  (at  three  o'clock  and 
forty-live  minutes)  the  Commission  adjourned. 


THURSDAY,  February  8,  187.. 

The  Commission  met  at  eleven  o'clock  a.  m.  pursuant  to  adjourn 
ment,  all  the  members  being  present. 

The  following  counsel  were  also  present: 
Hon.  Charles  O'Conor,  of  New  York,  "| 

Hon.  Jeremiah  S.  Black,  of  Pemisylvauia,  /-»#    „         i  • 

sr.^H^ 

Ashbel  Green,  esq.,  of  New  Jersey, 

William  C.  Whitney,  esq.,  of  New  York, 

Hon.  William  M.  Evarts,  of  New  York, 

Hon.  E.  W.  Stonghton,  of  New  York, 

Hon.  Stanley  Matthews,  of  Ohio,  ™tes  Nos  2  md 

Hon.  Samuel  Shellabarger,  of  Ohio,  j 

The  Journal  of  yesterday's  proceedings  was  read  and  approved. 

The  PRESIDENT.  The  proceedings  to-day  are  under  the  orders 
adopted  yesterday  of  which,  on  motion  of  Mr.  THURMAN,  counsel  were 
notified  last  evening.  The  Secretary  was  directed  to  notify  counsel 
that  at  eleven  o'clock  to-day  the  Commission  would  proceed  with  th 
case  now  before  it,  subject  of  course  to  the  two  orders  which  have  been 
read  in  the  proceedings  of  yesterday  ;  one,  that  no  evi-dence  will  be 
received  except  what  was  submitted  to  the  two  Houses  by  the  Presi 
dent  of  the  Senate  ;  and  the  other,  that  in  the  case  of  Florida  this 
Commission  will  receive  evidence  relating  to  the  eligibility  of  one 
elector  named. 

Mr.  MERRICK.  Mr.  President  and  gentlemen,  will  you  give  the 
marshal  an  order  to  admit  the  witnesses  for  the  objectors?  There 
are  two  or  three  witnesses  in  attendance  who  are  not  allowed  to  enter 
without  such  an  order. 

The  PRESIDENT,  (to  members  of  the  Commission.)  Shall  the 
marshal  be  so  directed?  [Putting  the  question.]  The  motion  is  adopted. 
The  marshal  will  admit  the  witnesses  designated  by  the  counsel  who 
made  the  motion. 

Mr.  EVARTS.  May  I  ask  for  an  order  that  a  witness  in  attend 
ance  on  our  part,  Mr.  Humphreys,  may  bo  admitted  ? 

The  PRESIDENT.  I  will  give  the  order  without  putting  the  ques 
tion.  The  marshalwill  admit  the  witness. 

Mr.  GREEN.  Mr.  President  and  commissioners,  we  propose  to  call 
as  a  witness  George  P.  Rauey,  of  Florida. 

The  PRESIDENT.  The  witnesses  who  are  called  will  be  sworn  by 
the  Secretary. 

The  Secretary  administered  an  oath  to  the  respective  witnesses  in 
the  following  form: 

You  do  solemnly  swear  that  the  evidence  you  shall  give  in  the  case 
now  before  the  Commission  shall  be  the  truth,  the  whole  truth,  and 
nothing  but  the  truth. 

GEORGE  P.  RANEY  sworn  and  examined. 

By  Mr.  GREEN  : 

Question.  Where  do  you  reside  ? 
Answer.  I  reside  in  Tallahassee,  Florida. 
Q.  What  is  your  occupation  or  profession  ? 
A.  I  am  a  lawyer  by  profession. 
Q.  What  official  position  do  you  hold,  if  any  ? 
A.  I  am  attorney-general  of  the  State  of  Florida. 
Q.  Where  were  you  on  the  6th  of  December,  1876  ? 
A.  I  was  in  the  city  of  Tallahassee  in  the  State  of  Florida? 


Q.  Have  you  any  knowledge  as  to  the  time  of  the  sevice  of  the  writ 
of  quo  ivarranto? 

Mr.  EVARTS.  One  moment.  That  is  not  within  the  license,  as  we 
understand,  of  the  order  of  the  Commission. 

Mr.  GREEN.     I  should  like  to  hear  the  objection  stated. 

Mr.  EVARTS.  The.  objection  is  that  it  is  not  within  the  order  of 
the  Commission  admitting  evidence  concerning  the  eligibility  of  Mr. 
Humphreys  and  excluding  all  other  evidence. 

Mr.  GREEN.  We  propose  to  prove  by  this  witness  the  simple  fact 
as  to  the  precise  time  when  the  writ  of  quo  warranto  was  served  upon 
Messrs.  Humphreys  and  others,  known  as  the  Hayes  electors.  It  is 
apprehended  upon  our  side  that  the  order  which  has  been  made  by 
the  Commission  does  not  in  its  spirit  exclude  the  consideration  of  the 
quo  warranto  proceedings  which  have  been  laid  upon  the  table,  and  it 
is  in  aid  of  what  may  be  perhaps  considered  a  question  as  to  the  pre 
cise  moment  when  the  writ  of  quo  warranio  was  served  upon  Hum 
phreys  and  others  that  we  desire  to  make  this  proof  this  morning. 

The  PRESIDENT.  I  will  submit  the  question  to  the  Commission. 
Gentlemen  of  the  Commission,  is  the  objection  well  taken  ?  [Putting 
the  question.]  The  ayes  have  it,  and  the  objection  is  sustained.  Pro 
ceed  with  the  examination  of  the  witness. 

Mr.  GREEN.  We  can  now  dispense  with  this  witness  and  will  call 
James  E.  Yonge. 

JAMES  E.  YONGE  sworn  and  examined. 
By  Mr.  GREEN: 

Question.  Where  do  you  reside  ? 

Answer.  At  Pensacola,  Florida. 

Q.  Do  you  know  Frederick  C.  Humphreys  ? 

A.  I  do. 

Q.  Where  does  he  reside  ? 

A.  At  Pensacola,  Florida. 

Q.  How  long  have  you  known  him  ? 

A.  I  have  known  him  for  about  ten  years. 

Q.  What  is  his  business  or  occupation  ? 

A.  Agent  for  an  express  company,  and  has  been  United  States  ship 
ping  commissioner. 

Q.  Have  you  known  him  to  act  in  the  capacity  of  United  States 
shipping  commissioner  ? 

A.  I  have. 

Mr.  E  VARTS.  We  submit  that  if  an  official  position  is  to  be  proved 
as  by  the  authority  communicated  from  the  Government,  in  the  ab 
sence  of  some  reason  to  the  contrary,  the  official  appointment  should 
be  given. 

The  PRESIDENT.    Perhaps  it  is  about  to  be  produced. 

Mr.  GREEN.    This  is  evidence  of  his  use  of  the  office. 

Mr.  EVARTS.  That  is  my  objection,  that  use  is  not  sufficient  on  a 
matter  depending  upon  authority. 

Mr.  GREEN.     We  propose  to  follow  that 

The  PRESIDENT.  You  had  better  introduce  the  Commission  at 
once,  to  save  time. 

Mr.  GREEN.  I  offer  in  evidence  an  order  of  the  United  States  cir 
cuit  couit  for  the  northern  district  of  Florida  at  the  December  term, 
1872. 

United  States  circuit  court,  northern  district  of  Florida.    December  term,  1872. 

December  3,  1872. 

IN  THE   MATTER  OF  THE   APPOINTMENT  OF 

Frederick  C.  Humphreys,  shipping  com- 

missioner  of  the  port  of  Pensacola. 

Ordered  by  the  coiirt  that  Frederick  C.  Humphreys,  of  Pensacola,  be,  and  ho  is 
hereby,  appointed  shippiugcouimissioner  for  the  port  of  Peosacola. 

Further  ordered  that  said  commissioner  may  enter  upon  the  duties  of  his  said  ap 
pointment  upon  taking  and  filing  the  oath  prescribed  by  law.  And  it  is  further 
ordered  that  the  clerk  of  this  court  do  furnish  said  commissioner  with  a  certified 
copy  of  this  order. 

I,  J.  E.  Townsend,  clerk  of  the  circuit  court  of  tho  United  States  for  the  northern 
district  of  Florida,  do  certify  that  the  above  and  foregoing  is  a  true  copy  of  the 
original  order  as  of  record  in  this  office. 

[SEAL.]  J.  E.  TOWNSEND,  Clerk. 

I  do  solemnly  swear  that  I  will  support  the  Constitution  of  the  United  States ; 
and  that  I  will  truly  and  faithfully  discharge  the  duties  of  a  shipping  commissioner 
to  the  best  of  my  ability  and  according  to  law. 

F.  C.  HUMPHREYS. 

Sworn  and  subscribed  before  me  this  9th  day  of  December,  A.  D.  1872. 

GEO.  E.  WENT  WORTH, 
United  States  Commissioner  for  the  United  States  Circuit  Court, 

Northern  District  of  Florida. 
Filed  December  9,  1872. 

M.  P.  DE  RIOBOO,  Clerk. 
Northern  District  of  Florida : 

I,  M  P.  Do  Rioboo,  clerk  United  States  circuit  court,  in  and  for  said  district,  at 
Pensacola,  do  hereby  certify  the  foregoing  to  be  a  true  copy  as  the  samp  remains 
on  tile  in  my  office.  '  I  further  certify  that  no  resignation  of  said  office  of  shipping 
commissioner  has  been  tiled  in  my  office  by  the  said  Frederick  C.  Humphreys. 

Given  under  my  hand  and  seal  of  said  court,  at  Pensacola,  this  January  24,  1877. 

[SEAL.]  M.  P.  DE  RIOBOO,  Clerk. 

Q.  (By  Mr.  GREEN.)  Do  you  know  Frederick  C.  Humphreys,  one 
of  the  persons  who  was  voted  for  as  a.n  elector  for  President  and 
Vice-President  of  the  United  States  at  the  election  in  November,  1876? 

A.  I  do. 

Q.  Is  he,  or  is  ho  not,  the  same  Frederick  C.  Humphreys  of  whom 
you  have  spoken  as  being  United  States  shipping  commissioner? 

A.  He  is  the  same  person. 


ELECTORAL  COMMISSION. 


Q.  Have  you  seen  Mr.  Frederick  C.  Humphreys  in  the  exercise  of 
any  acts  as  United  States  shipping  commissioner  ? 

A.  I  have  had  transactions  with  him  in  that  capacity. 

Q.  How  late  and  when  ? 

A.  I  had  transactions  with  him  from  time  to  time  from  the  early 
part  of  1873  up  to  the  date  of  niy  leaving  Pensacola,  sometime  be 
tween  the  middle  and  latter  part  of  August  of  last  year. 

Q.  Describe  the  business  you  had  with  Mr.  Humphreys  as  shipping 
commissioner. 

A.  I  frequently  had  occasion  to  communicate  with  him  on  the  sub 
ject  of  the  discharge  of  American  seamen.  His  duties  in  the  capacity 
of  shipping  commissioner  related  to  such  matters  between  American 
seamen  and  shipping  masters. 

Q.  Did  you  testify  as  to  your  occupation  ? 

A.  I  did  not. 

Q.  What  is  your  occupation? 

A.  lam  a  lawyer. 

Q.  Engaged  in  the  practice  of  your  profession  where  ? 

A.  In  Peusacola. 

Q.  And  as  a  lawyer  have  you  from  time  to  time  had  transactions 
with  Mr.  Humphreys  as  United  States  shipping  commissioner? 

A.  I  have. 

Q.  Have  you  appeared  before  him  from  time  to  time  ? 

A.  Yes,  sir. 

Q.  How  late? 

A.  From  time  to  time,  as  I  answered  before,  up  to  the  date  of  my 
leaving  Pensacola,  which  was  between  the  middle  and  latter  part  of 
August  of  last  year,  1876. 

Q.  Did  Mr.  Humphreys,  as  United  States  commissioner,  take  cog 
nizance  of  any,  and,  if  so,  what,  questions  which  may  have  been  from 
time  to  time  presented  to  him  ? 

A.  The  ordinary  questions  of  difference  between  seamen  and  mas 
ters  of  vessels — questions  of  the  right  to  their  discharge  and  the 
right  to  receive  their  wages. 

Q.  Did  he  hold  court  there  for  that  purpose? 

A.  It  was  a  sort  of  informal  court. 

Q.  In  which  parties  appeared  before  him  ? 

A.  Yes,  sir. 

Q.  Did  lie  hear  evidence  I 

A.  He  heard  the  testimony. 

Q.  And  arguments  of  counsel  ? 

A.  When  arguments  were  presented.  It  was  seldom  that  arguments 
were  presented  in  such  cases. 

Mr.  GREEN.    That  is  all. 

The  PRESIDENT.    Do  the  other  side  desire  to  cross-examine? 

Mr.  EVARTS  and  Mr.  STOUGHTON.    No. 

Mr.  GREEN.  That  is  all  that  we  propose  to  offer  on  that  point  by 
way  of  affirmative  evidence,  unless  there  may  bo  something  which 
may  be  required  to  be  offered  by  way  of  rebuttal  when  the  other  side 
shall  have  presented  their  testimony. 

The  PRESIDENT.  Is  there  anything  to  be  offered  on  the  other 
side. 

Mr.  EVARTS.  Without  commenting  upon  the  state  of  the  proof 
thus  far  reached  as  calling  upon  us  to  offer  any  evidence  in  rebuttal, 
principally  upon  the  point  that  as  yet  no  evidence  has  been  adduced 
that  shows  that  he  held  and  exercised  the  office  of  shipping  commis 
sioner  at  the  date  of  the  November  election,  we  will  introduce  the 
proof  on  our  part  and  leave  any  question  for  discussion  hereafter. 

F.  C.  HUMPHREYS  sworn  and  examined. 
By  Mr.  STOUGHTON  : 

Question.  Where  do  you  reside  ? 

Answer.  In  Peusacola. 

Q.  Were  you  a  candidate  for  elector  ? 

A.  I  was. 

Q.  On  the  republican  ticket  ? 

A.  Yes,  sir. 

Q.  Had  you  prior  to  being  such  candidate  held  any  office  ? 

A.  Yes,  sir. 

Q.  What? 

A.  I  was  United  States  shipping  commissioner  for  the  port  of  Pen 
sacola. 

Q.  When  did  you  cease  to  act  as  such  ? 

A.  On  the  5th  day  of  October  when  acceptance  of  my  resignation 
was  received  from  Judge  Woods. 

Q.  Did  you  resign  your  office  ? 

A.  I  did. 

Q.  By  resignation  to  whom  ? 

A.  By  resignation  through  the  mail. 

Q.  To  whom  ? 

A.  To  Judge  Woods. 

Q.  Have  you  the  acceptance  of  that  resignation  ? 

A.  I  have. 

Q.  Have  you  that  in  your  possession  ? 

A.  I  have. 

Q.  Be  kind  enough  to  let  me  see  it  ? 

A.  [Producing  a  paper.]    That  is  the  paper. 

Q.  Judge  Woods  is  one  of  the  circuit  judges  of  the  United  States  ? 

The  PRESIDENT.    The  court  is  aware  of  that. 

Mr.  MERRICK.     We  object,  if  your  honors  please,  to  the  produc 


tion  of  this  paper  as  the  acceptance  of  a  resignation,  as  it  is  the  act 
of  an  individual  and  not  the  act  of  the  court. 

The  PRESIDENT.  The  simple  question  now  is  whether  you  object 
to  its  admissibility.  Its  effect  will  bo  a  subject  of  argument  after 
ward. 

Mr.  EVARTS.     Its  authenticity  is  not  objected  to. 

Mr.  MERRICK.  It  is  hardly  anticipating  the  main  question,  but  of 
course  I  will  waive  it  at  the  suggestion  of  the  President  of  the  Com 
mission  for  the  present. 

The  PRESIDENT.     Its  effect  can  be  judged  of  afterward. 

Mr.  MERRICK.  If  I  shall  uot  be  understood  as  waiving  my  objec 
tion,  very  well. 

The  PRESIDENT.  The  question  of  its  effect  will  be  considered 
reserved. 

Q.  (By  Mr.  STOUGHTON.)  You  received  from  Judge  Woods  in  re 
ply  to  your  resignation  this  paper  ? 

A.  Yes,  sir. 

Mr.  Commissioner  MILLER.    It  had  better  bo  read. 

Mr.  STOUGHTON.    I  will  read  it. 

NEWARK,  October,  1876. 

DE  AK  Slit :  I  inclose  the  acceptance  of  your  resignation  as  shipping  commissioner. 
The  vacancy  can  only  be  filled  by  the  circuit  court,  anil  until  I  can  go  to  Pensacola 
to  open  court  for  that  purpose  the  duties  of  the  office  will  have  to  be  discharged  by 
the  collector. 

Eespectfully,  yours, 

W.  B.  WOODS. 

Major  F.  C.  HUMPHUETS, 

Pensacola,  Fla. 

To  F.  C.  HUMPHREYS,  Esq., 

Pensacola,  Fla.  : 

Your  letter  of  the  24th  of  September,  1876,  resigning  your  office  of  United  States 
shipping  commissioner  for  the  port  of  Ponsacola  in  the  State  of  Florida,  has  been 
received,  and  your  resignation  of  said  office  is  hereby  accepted. 
Very  respectfully,  your  obedient  servant, 

W.  B.  WOODS, 

17.  S.  Circuit  Judge. 

OCT.  2,  1876. 

Mr.  MERRICK.    What  place  is  it  dated  ? 

Mr.  STOUGHTON.    Newark. 

Mr.  EVARTS.    What  State  ? 

Mr.  STOUGHTON.    There  is  no  State  on  it. 

The  PRESIDENT.  If  no  objection  be  made  the  paper  will  be  filed 
with  the  Secretary. 

Mr.  STOUGHTON.  I  have  another,  may  it  please  your  honors.  [To 
the  witness.]  Did  you  receive  the  paper  I  now  hold  in  my  hand  dated 
October  1, 1876,  from  Hiram  Potter,  collector  of  customs  at  Pensacola  ? 

A.  I  did. 

Q.  Is  this  his  signature  ? 

A.  It  is. 

Mr.  MERRICK.    We  object  to  that  paper  being  received. 

Mr.  STOUGHTON.  It  connects  itself  with  the  other  two,  as  the 
Commission  will  see. 

Mr.  MERRICK.  I  make  the  objection,  reserving  the  consideration 
of  the  question. 

The  PRESIDENT.  It  will  be  received  subject  to  the  decision  of  the 
Commission  as  to  its  effect. 

Mr.  MERRICK.    Yes,  sir ;  and  as  to  its  admissibility,  also. 

The  PRESIDENT.     Yes. 

Mr.  STOUGHTON.    This  letter  is : 

CUSTOM-HOUSE,  PENSACOLA,  FLORIDA, 

Collector's  Office.  October  5,  1876. 
F.  C.  HUMPHREYS,  Esq., 

Pensacola,  Fla.: 

SIR  :  I  am  informed  by  Judge  "Woods  that  ho  has  accepted  your  resignation  as  U. 
S.  shipping  commissioner  and  that  it  devolves  upon  me  to  assume  the  duties  of  the 
office  until  a  regular  appointment  shall  bo  made  by  the  circuit  court.  I  respect 
fully  request,  therefore,  that  you  will  turn  over  to  me  such  public  books,  papers, 
records,  &c.,  as  may  pertain  to  the  business. 

I  remain,  very  respectfully,  your  obedient  servant, 

HTRAH  POTTER,  JR., 

Collector  of  Customs. 

Q.  Was  he  the  collector  ? 

The  WITNESS.  Yes,  sir. 

Q.  (By  Mr.  STOUGHTON.)  Did  you  cease  to  act  in  your  office  from 
the  time  of  the  receipt  of  the  letter  accepting  your  resignation? 

A.  I  did. 

Q.  Have  yon  acted  at  all  in  that  capacity  since  ? 

A.  No,  sir. 

Q.  Has  the  collector  acted  in  your  place  ? 

A.  Yes,  sir. 

Q.  Did  you  turn  over  to  the  collector  whatever  you  had  of  public 
papers  or  property  connected  with  the  office,  if  you  had  any  ? 

A.  I  had  none.  The  blanks  were  my  personal  property,  bought  and 
paid  for  with  my  own  money. 

Cross-examined  by  Mr.  HOADLY: 

Q.  Have  you  a  copy  of  your  letter  of  resignation  ? 

A.  Yes,  sir. 

Q.  How  did  you  convey  it  to  Judge  Woods  ? 

A.  Through  the  mail. 

Q.  To  what  point  did  you  address  that? 

A.  To  Newark,  in  the  State  of  Ohio.     He  was  there  on  a  visit. 

Q.  Judge  Woods  was  on  a  visit  to  Newark,  Ohio  ? 

A.  Yes,  sir. 


40 


ELECTORAL   COMMISSION. 


Q.  Has  there  been  any  open  session  of  the  circuit  court  of  the  United 
States  for  the  northern  district  of  Florida  since  the  date  of  that  resig 
nation  ? 

A.  No,  sir. 

Q.  When  did  you  receive  Judge  Woods's  reply  to  your  letter? 

A.  On  the  5th  of  October. 

The  PRESIDENT.    Is  there  anything  further  T 

Mr.  STOUGHTON.    Nothing  further. 

The  PRESIDENT.    Anything  in  rebuttal  ? 

Mr.  MERRICK.    Nothing  further. 

The  PRESIDENT.  The  testimony  is  closed.  The  third  rule  is  as 
follows : 

Counsel,  not  exceeding  two  in  number  on  each  side,  will  be  heard  by  the  Com 
mission  on  the  merits  of  any  case  presented  to  it,  not  longer  than  two  hours  being 
allowed  to  each  side,  unless  a  longer  time  and  additional  counsel  shall  be  specially 
authorized  by  the  Commission. 

I  consider  myself  instructed  to  say  that  the  whole  case  is  now  open 
for  argument  under  that  rule.  If  members  of  the  Commission  enter 
tain  a  different  view  they  will  suggest  it.  That  is  my  understanding 
on  the  construction  I  give.  I  think  the  order  should  be  as  before, 
that  one  counsel  representing  the  objections  to  certificate  No.  1  should 
open,  that  two  on  the  other  side  should  reply,  and  then  the  other 
counsel  having  the  affirmative  should  have  the  close. 

Mr.  MERRICK.  Mr.  President,  we  would  ask,  if  it  be  agreeable 
to  the  Commission,  that  there  should  be  allowed  three  counsel  to  be 
heard  for  the  objectors. 

The  PRESIDENT.  I  will  allow  that  without  submitting  the  ques 
tion  to  the  Commission,  provided  no  additional  time  is  asked. 

Mr.  MERRICK.  We  were  going  to  ask  for  some  slight  addition  to 
our  time. 

The  PRESIDENT.    That  is  for  the  Commission. 

Mr.  MERRICK.  The  reason  for  asking  that  three  should  be  heard 
is  that  there  is  a  new  and  quite  important  question  raised  by  the  tes 
timony  this  morning  in  reference  to  Mr.  Humphreys,  ami  it  enlarges 
very  considerably  the  sphere  of  the  argument. 

The  PRESIDENT.     How  much  more  time  do  you  want  ? 

Mr.  MERRICK.  An  hour.  We  desire  to  have  that  question  in  its 
first  presentation  to  the  court  fully  presented,  and  it  is  a  question 
upon  which  Mr.  Hoadly  has  prepared  himself  with  some  careful  ex 
amination,  and  it  is  one  which  before  the  Commission  finally  dis 
perses  may  again  arise  ;  and  we  deem  it  important  that  it  should  be 
fairly,  fully,  and  ably  discussed  when  first  presented  to  your  consid 
eration. 

Mr.  Commissioner  MILLER.  Mr.  Merrick,  nearly  all  the  other 
questions  were  discussed  in  the  first  argument.  The  effect  of  the  pa 
pers  submitted  by  the  President  of  the  Senate  was  fully  discussed  in 
the  opening  argument  by  counsel  on  both  sides,  and  it  does  seem  to 
me,  as  we  must  get  along  and  discharge  this  business,  that  we  should 
get  through  with  the  argument  to-day. 

The  PRESIDENT.  What  if  anything  is  said  on  the  other  side? 
What  are  the  views  of  the  other  side?  Do  they  wish  to  be  heard  by 
three  counsel  ? 

Mr.  EVARTS.  We  shall  not  want  more  than  two  hours,  even  if 
three  should  be  allowed  to  speak. 

The  PRESIDENT.    Will  more  than  two  counsel  speak  on  your  side  ? 

Mr.  EVARTS.     I  think  not. 

The  PRESIDENT.  The  question  submitted  to  the  Commission  is 
whether  an  additional  hour  shall  be  allowed  to  counsel  for  the  time 
of  argument. 

The  question  being  put,  it  was  determined  in  the  affirmative. 

Mr.  HOADLY.  May  it  please  the  Commission,  it  has  been  estab 
lished  by  the  proof  that  Frederick  C.  Humphreys  held  the  office  of 
shipping  commissioner  by  appointment  from  the  circuit  court  of  the 
*  United  States  in  Florida.  It  has  been  established  by  the  proof  that 
before  the  November  election  he  attempted  to  divest  himself  of  this 
office  by  forwarding  to  the  city  of  Newark,  in  the  State  of  Ohio,  a 
paper  resignation  of  that  office,  and  by  receiving  from  the  judge,  not 
the  court,  acting  not  in  Florida  but  in  Ohio,  an  acceptance  of  that 
resignation. 

The  powers  of  this  office  are  derived  from  section  4501  of  the  Re 
vised  Statutes: 

Tlio  several  circuit  courts  within  the  jurisdiction  of  which  there  is  a  port  of  en 
try,  &c.,  shall  appoint. 

The  resignation  cannot  be  made  except  to  the  same  authority  that 
appointed.  The  resignation  could  not,  therefore,  be  made  by 'letter 
addressed  to  the  judge  in  Ohio.  The  acceptance  of  the  resignation 
could  not  emanate  from  the  judge  in  Ohio.  The  court  has  not  since 
held  a  session.  The  court  -which  clothed  the  officer  with  the  power 
has  not  relieved  him  from  the  performance  of  the  duty,  and  I  re- 
Hjit-cii'iilly  submit  that  this  proposition  is  within  the  cause  recently 
decided  in  the  Supreme  Court  of  the  United  States,  the  opinion  in 
which  has  just  been  placed  in  my  hands,  the  case  of  Badger  and 
others  rs.  The  United  States  on  the  relation  of  Bolton,  a  copy  of  the 
decision  in  which  will  be  furnished  to  your  honors.  It  is  also,  I  am  ad 
vised,  according  to  the  practice  of  the  Government  as  shown  by  Doc 
ument  No.  123,  Twenty-sixth  Congress,  second  session,  House  of  Rep 
resentatives,  and  by  the  second  volume  of  the  Oninious  of  the  Attor 
neys-General,  pages  406  and 713.  Therefore,  considering  that  Freder 
ick  C.  Humphreys  had  been  duly  appointed  to  this  office,  that  by  the 


laws  of  the  United  States  it  is  shown  to  bo  an  office  of  profit  and 
trust,  is  by  the  Revised  Statutes  so  made  ;  considering  that  the  judge 
of  the  circuit  court  acting  in  Ohio  was  not  the  circuit  court  and  was 
not  the  power  that  clothed  him  with  the  authority,  and  could  not 
relieve  him  from  the  performance  of  the  duty  with  which  he  had  been 
intrusted  by  another  power;  considering  that  the  judge  of  the  cir 
cuit  court  of  the  United  States  acting  in  chambers  could  not  in  Ohio 
release  him  from  a  trust  which  the  court  not  in  chambers  clothed 
him  in  Florida;  considering  these  circumstances,  we  respectf  ally  sub 
mit  that  he  held  an  office  of  profit  and  trust  on  the  day  of  the  No 
vember  election  for  electors  of  President  and  Vice- President,  and 
that  therefore  the  vote  that  he  cast  cannot  be  counted. 

The  provision  of  disqualification  contained  in  the  first  section  of 
the  second  article  of  the  Constitution  I  will  read,  that  I  may  have 
freshly  before  my  own  mind  the  text  in  reference  to  which  this  de 
bate  must  proceed. 

Mr.  Commissioner  THURMAN.  Before  you  proceed  with  that,  will 
you  state  whether  this  was  an  office  a  resignation  of  which  must  be 
accepted,  or  could  the  officer  resign  of  his  own  motion  at  any  time? 

Mr.  HOADLY.  There  is  nothing  in  the  statute  with  regard  to  the 
resignation  of  this  office  at  all.  Having  accepted  the  office,  given 
bond,  and  taken  oath  to  perform  its  duties,  we  submit  that  he  could 
not  divest  himself  of  it  by  his  own  act.  I  will  read  the  whole  section 
which  authorized  the  appointment: 

The  several  circuit  courts  within  the  jurisdiction  of  which  there  is  a  port  of  entry 
which  is  also  a  port  of  ocean  navigation  shall  appoint  a  commissioner  for  each  such 
port  which  in  their  judgment  may  require  the  same,  such  commissioners  to  bo 
termed  shipping  commissioners;  and  may,  from  time  to  time,  remove  from  oilice 
any  commissioner  whom  the  court  may  have  reason  to  believe  does  not  properly 
perform  his  duties,  and  shall  then  provide  for  the  proper  performance  of  his  duties 
until  another  person  is  duly  appointed  in  his  place. 

I  submit  that  where  the  legislative  body  have  created  an  office,  and 
the  judicial  authority  has,  according  to  the  law,  clothed  a  person  with 
the  trusts  of  that  office,  public  policy  requires  that  it  should  not  bo 
held  at  his  will  and  pleasure,  it  being  an  office  of  public  convenience 
and  necessity,  for  the  performance  of  which  bond  is  required  to  be 
given,  and  the  filling  of  which  may  be  at  all  times  essential  to  the 
performance  of  public  duty. 

Turning  to  the  reading  of  the  constitutional  provision  : 

Each  State  shall  appoint,  in  such  manner  as  the  Legislature  thereof  may  direct, 
a  number  of  electors  equal  to  the  whole  number  of  Senators  and  Representatives 
to  which  the  State  may  be  entitled  in  the  Congress  ;  but  no  Senator  or  Reprt-senta- 
t-ive,  or  person  holding  an  office  of  trust  or  profit  under  the  United  States,  shall  be 
appointed  an  elector. 

The  form  is  mandatory ;  it  is  negative  ;  that  is,  the  provision  of  dis 
qualification  is  negative.  It  is  coupled  with  the  grant  of  power  by 
the  word  "  but,"  which,  together  with  the  words  of  the  context,  shows 
that  it  is  a  limitation,  a  qualification,  a  diminution  of  the  grant  of 
power.  The  grant  of  power  is  to  the  State,  riot  to  the  people  of  the 
State,  but  to  the  State  as  a  legal  entity,  as  an  organized  body-corpo 
rate  in  its  character;  and  to  that  grant  thus  given  to  the  State  is  at 
tached  a  limitation  introduced  by  words  of  exception  "  but  no  Senator 
or  Representative  shall  be  entitled."  It  is  clothed  in  negative  lan 
guage.  Negative  language,  it  is  said,  will  make  a  statute  imperative; 
and  this  is  incontestable.  Negative  words  will  make  a  statute  imper 
ative.  Affirmative  words  may  ;  negative  must,  as  is  stated  in  Sedg- 
wick  on  Constitutional  and  Statutory  Law,  page  370;  and  Cooley  on 
Constitutional  Limitations,  75;  Potter's  Dwarris  on  Statutes,  228;  Rex 
vs.  Justices  of  Leicester,  7  ;  Barnewal  &  Crewell,  G,  14. 

But  what  is  of  more  consequence  than  the  form,  although  the  form 
is  indicative  of  the  purpose  of  the  authors  in  using  the  words  of  sub 
stance,  the  provision  is  in  substance  imperative  and  admits  of  no 
evasion.  Lord  Mansfield  distinguishes  mandatory  from  directory 
clauses  in  statutes  by  reference  to  "  circumstances  which  are  of  the 
essence  of  a  thing  required  to  be  done  "  as  distinguished  from  circum 
stances  which  are  "  merely  directory." 

Mr.  Commissioner  BRADLEY.  Are  you  going  to  hand  us  a  copy  of 
your  brief  ? 

Mr.  HOADLY.  This  brief  was  prepared  for  another  case,  in 
another  matter  ;  that  portion  of  it  which  relates  to  this  matter,  if  I 
may  have  the  permission  of  the  Commission  to  submit,  I  will  submit. 

Mr.  Commissioner  BRADLEY.  I  merely  asked  in  reference  to  taking 
notes. 

Mr.  HOADLY.  I  will  explain  by  permission  that  this  brief  was 
prepared  with  reference  to  questions  that  might  arise  in  the  Oregon 
case.  Part  of  it  relates  to  this  case.  Those  portions,  if  I  may  be 
permitted,  I  will  submit  as  soon  as  we  can  get  them  printed. 

Mr.  Commissioner  STRONG.  Can  you  furnish  us  with  the  authori 
ties? 

Mr.  HOADLY.  I  will  furnish  your  honors  a  list  of  the  authorities 
in  manuscript  by  submitting  the  appropriate  parts  of  this  brief  in 
print. 

Mr.  Commissioner  ABBOTT.  You  have  the  right  to  file  a  brief,  as  I 
understand. 

Mr.  HOADLY.  I  desire  to  be  permitted  to  file  those  portions  of 
this  brief  which  relate  to  this  case. 

The  PRESIDENT.     It  is  the  general  sentiment  that  you  may. 

Mr.  HOADLY.  They  will  be  probably  finished  in  time  to  be  handed 
to  the  Commission  to-day.  I  am  now  using  the  first  proof,  which  I 
received  a  few  moments  ago. 


ELECTORAL  COMMISSION. 


41 


Having  relation,  aa  Lord  Mansfield  says,  to  that  which  is  essential 
as  different  from  that  which  is  merely  directory,  I  suggest  that  sev 
eral  circumstances  show  that  our  fathers  who  framed  this  provision 
considered  it  essential.  It  seems  to  have  been  (irst  adopted  into  the 
Constitution  on  the  motion  of  Mr.  Gerry  and  Mr.  Gouverneur  Morris 
in  a  slightly  different  form  from  that  in  which  it  now  appears.  On 
July  19,  1787,  Mr.  Gerry  and  Mr.  Gonvernenr  Morris  moved  "that  the 
electors  of  the  Executive  shall  not  be  members  of  the  National  Leg 
islature,  nor  officers  of  the  United  States,  nor  shall  the  electors  them 
selves  be  eligible  to  the  Supreme  Magistracy.  Agreed  to  ucm.  con." 
(Madison  Papers,  343.) 

Ou  Thursday,  September  6,  Mr.  Rufus  King  and  Mr.  Gerry  moved 
to  insert  in  the  fourth  clause  of  the  report  after  the  words  "  may  be 
entitled  in  the  Legislature,"  the  words  following: 

But  no  person  shall  bo  appointed  an  elector  who  is  a  member  of  the  Legislature 
of  the  United  States,  or  who  holds  any  ottiee  of  profit  or  trust  under  tho  United 
States. — Atadisun  Paper*,  page  515. 

It  passed  nem.  con.  It  was  the  unanimous  will  of  our  fathers,  there 
fore,  that  this  disqualification  should  attach;  that  it  should  attach 
in  ihe  nature  of  an  exception  or  proviso  to  the  grant  of  powers  to  the 
States  to  elect  electors  ;  that  it  should  attach  by  disqualification  of 
the  persons  who  might  be  appointed  electors;  that  it  should  attach 
by  disqualification  of  the  State  in  the  appointment  of  electors.  The 
State  is  disqualified  from  appointing,  the  elector  from  accepting  the 
trust.  The  disqualification  therefore  is  imposed  both  upon  tho  ap 
pointing  power  and  upon  the  candidate,  and  the  effect  of  such  dis 
qualification,  it  is  respectfully  submitted,  is  to  render  the  action  of 
the  State  in  the  appointment  null  and  void.  The  qualification  is  of 
the  action  of  the  State ;  of  the  State  in  all  its  departments ;  of  the 
voters  of  the  State  as  well  as  of  the  government  of  tho  State,  a  dis 
qualification  which  binds  every  citizen  of  the  State,  every  function 
ary  of  the  State,  and  attaches  to  and  qualifies  and  limits  the  corporate 
action  of  the  State,  and  is  equivalent  to  saying  "the  State  may  ap 
point  from  among  the  number  of  qualified  persons."  I  submit  that  the 
substance  and  real  meaning  of  the  sentence,  although  it  is  cast  in  the 
negative  and  inhibitory  form,  is  that  from  among  the  number  of  those 
who  do  not  occupy  positions  of  profit  and  trust  the  State  may  appoint 
electors.  The  object  of  our  fathers  in  introducing  without  dissent 
this  provision  was  to  prevent  the  Federal  power,  the  officers  con 
trolling  Federal  agencies,  from  continuing  their  power  through  the 
influence  of  the  offices  of  trust  with  which  they  were  clothed  for  Fed 
eral  and  State  benefit.  It  was  not  merely  to  protect  tho  State  in 
which  the  candidate  might  be  elected  from  the  intrusion  of  a  Federal 
office-holder  into  the  electoral  office,  but  it  was  to  protect  every  other 
State,  each  State,  all  the  States,  and  the  people  of  each  and  every 
State  by  a  mutual  covenant  in  the  form  of  a  limitation  of  power  that 
no  State  should  appoint  a  disqualified  person.  Each  State  therefore, 
through  the  agencies'  of  the  Federal  Government,  is  entitled  to  be 
protected  against  the  illegitimate  use  of  Federal  power  in  any  State. 
Delaware,  Oregon,  the  smallest  of  our  States  are  entitled  to  ask 
through  their  Senators  and  Representatives  that  the  Federal  power 
shall  enforce  this  provision  for  their  protection  against  the  corruption 
of  the  election  in  the  larger  States  by  means  of  the  election  of  dis 
qualified  persons. 

If  it  be  said,  but  I  do  not  think  it  will,  that  the  remedy  which  our 
fathers  provided  for  the  evil  which  they  apprehended  has  but  little 
value  and  that  their  forecast  was  not  great,  so  much  the  more  reason 
for  rigidly  insisting  upon  such  value  as  it  possesses  now,  for  surely 
time  has  not  proved,  experience  has  not  shown  that  the  evils  which 
our  fathers  apprehended,  as  they  clearly  manifested  and  showed 
by  the  text  of  the  provision  itself,  are  any  less  than  they  supposed 
they  would  be.  The  influence  of  Federal  power  through  the  can 
didacy  of  Federal  officers  for  electors  is  explicitly  here  prohibited. 
The  object  is  to  diminish  and  prevent  and  restrict  Federal  inter 
ference  in  the  election  of  electors.  It  is  tho  duty,  not  of  tho  States 
in  purging  the  votes  of  electors,  but  of  the  Federal  Government  for 
the  protection  of  each  State  to  insist  upon  and  carry  into  full  force 
this  provision. 

Again,  the  occasions  upon  which  this  proArision  has  been  considered 
during  our  history  emphasize  this  suggestion -as  to  the  purpose  of  our 
fathers  in  adopting  it.  In  1837  five  postmasters,  or  five  persons  bear 
ing  the  same  names  as  certain  postmasters,  were  appointed  or  at 
tempted  to  be  appointed  electors.  Mr.  Clay  submitted  on  January 
27,  1837,  this  instruction  which  he  asked  to  have  given  to  the  joint 
committee  of  the  Senate  and  House  appointed  to  ascertain  and  re 
port  a  mode  of  examining  the  votes  for  President  and  Vice-President 
of  the  United  States,  namely :  that  they  should  "  inquire  into  the  ex 
pediency  of  ascertaining  whether  any  votes  were  given  at  the  recent 
election  contrary  to  the  prohibition  contained  in  the  second  section  of 
the  second  article  of  -the  Constitution  ;  and  if  any  such  votes  were 
given,  what  ought  to  be  done  with  them;  and  whether  any  and  what 
provision  ought  to  be  made  for  securing  the  faithful  observance,  in 
future,  of  that  section  of  the  Constitution." 

The  members  of  this  committee  on  the  part  of  the  Senate  were  Fe 
lix  Grundy,  Henry  Clay,  and  Silas  Wright ;  on  the  part  of  the  House, 
Francis  Thomas,  Churchill  C.  Cambreleng,  John  Reed,  Henry  W.  Con 
nor,  and  Francis  S.  Lyon,  the  latter  of  whom,  I  was  informed  in  Mo 
bile  a  few  days  since  is  the  only  survivor,  now  living  in  Alabama  at 
great  age  and  deeply  interested  in  this  discussion.  Mr.  Grundy  sub 


mitted  a  report  of  the  committee  on  February  4,  from  which  I  desire 
to  read  tho  following  quotation  : 

That  tho  short  period  at  which  they  were  appointed,  before  tho  day  on  which  the 
votes  for  President  and  Vice-Presideilt  of  tho  United  States  have  to  be  counted,  bus 
prevented  them  from  investigating  the  facts  submitted  to  their  examination  as  fully 
as  might  have  been  done  had  more  time  boon  allowed.  The  correspondence  which 
has  taken  place  between  tho  chairman  of  the  committee  and  tho  heads  of  tho  differ 
ent  departments  -<f  tho  executive  branch  of  tho  Government  accompanies  this  re 
port,  from  which  it  appears  *  *  *  that  in  two  cas^s  persons  of  the  same  names 
with  the  individuals  who  were  appointed  and  voted  as  electors  in  the  State  of  North 
Carolina  held  the  oflice  of  deputy  postmaster  under  tho  General  Government. 

I  suggest,  in  passing,  that  the  course  taken  by  that  committee  of 
tho  most  eminent  men  of  that  generation  indicates  that  I  am  right  in 
the  suggestion  that  the  duty  was  then  considered,  as  we  now  cliiim 
it  should  be,  as  imposed  on  the  Federal  power  to  take  testimony  so 
as  to  ascertain  the  facts  and  by  Federal  agencies  enforce  the  prohi 
bition  for  the  protection,  not  merely  of  the  State  in  which  the  dis 
qualified  elector  has  voted,  but  of  the  States  in  which  the  disqualified 
elector  has  not  voted  for  the  election  of  President  and  Vice-Presi 
dent,  concerns  all  the  States,  and  relates  to  the  deepest  and  most  vital 
interests  of  all  the  States.  The  disqualification  cannot  therefore  be 
permitted  to  be  evaded  in  one  State  without  a  blow  struck  at  every 
other  State.  I  will  continue  reading  the  report : 

It  also  appears  that  in  New  Hampshire  there  is  ono  case  ;  in  Connecticut  there 
is  one  case ;  in  North  Carolina  there  ia  one  case,  in  which,  from  the  report  of  the 
Postmaster-General,  it  is  probable  that  at  the  time  of  the  appointment  of  electors 
in  these  Srates,  respectively,  tho  electors  or  persons  of  the  same  name  were  deputy 
postmasters.  The  committee  have  not  ascertained  whether  tho  electors  are  tho 
same  individuals  who  held  or  are  presumed  to  have  held  the  oflice  of  deputy  post 
masters  at  tho  tiruo  when  tho  appointment  of  electors  was  made  ;  and  this  is  the 
less  to  be  regretted  as  it  is  confidently  believed  that  no  change  in  the  result  of  the 
election  of  either  tho  President  or  Vice-President  would  be  affected  by  tho  ascer 
tainment  of  the  fact  in  either  way,  as  five  or  six  votes  only  would,  in  any  event  be 
abstracted  from  the  whole  number,  for  the  committee  cannot  adopt  the  opinion, 
entertained  by  some,  that  a  single  illegal  vote  would  vitiate  tho  whole  electoral 
vote  of  the  college  of  electors  in  which  it  was  given,  particularly  in  cases  where 
tho  vote  of  tho  whole  college  has  been  given  for  tho  same  persons. 

From  this  sentence  it  appears  that  at  that  time,  forty  years  ago,  the 
question  in  debate  was  whether  the  single  illegal  vote  vitiated  more 
than  the  vote  itself,  and  the  committee  were  of  opinion  that  it  did  not. 

The  committee  are  of  opinion  that  tho  second  section  of  tho  second  article  of  the 
Constitution,  which  declares  that  "no  Senator  or  Representative,  or  person  holding 
an  ollico  of  trust  or  profit  under  tho  United  States,  shall  bo  appointed  an  elector," 
ought  to  bo  carried  in  its  whole  spirit  into  rigid  execution,  in  order  to  prevent  otli- 
cers  of  tho  General  Government  from  bringing  their  oliicial  power  to  influence  the 
elections  of  President  and  Vice-President  of  the  United  States.  This  provision  of 
the  Constitution,  it  is  believed,  excludes  and  disqualifies  deputy  postmasters  from 
tho  appointment  of  electors ;  and  tho  disqualification  relates  to  the  time  of  the  ap 
pointments,  and  that  a  resignation  of  the  otlico  of  deputy  postmaster,  after  his  ap 
pointment  as  elector,  would  not  entitle  him  to  vote  as  elector  under  the  Consti 
tution. 

I  submit  that  when  it  appears  that  two  such  minds  as  those  of 
Henry  Clay  and  Silas  Wright,  statesmen  of  such  opposite  political 
education  and  modes  of  thought,  concur  in  a  statement  with  refer 
ence  to  the  reasons  and  meaning  of  the  Constitution,  it  comes  to  us 
with  a  weight- and  with  an  authority  that  is  not  to  be  gainsaid.  For 
tunately  or  unfortunately,  however,  our  American  habit  of  not  bridg 
ing  chasms  until  we  reach  them  prevented  any  action  by  Congress 
such  as  Mr.  Clay  suggested  ;  and  accordingly  the  question  represents 
itself  to-day  without  any  further  elucidation  by  legislation  than  it 
had  then. 

Mr.  Commissioner  EDMUNDS.  What  did  the  committee  say  ought 
to  be  done,  Mr.  Hoadly,  if  anything? 

Mr.  HOADLY.  Only  this,  "  that  the  article  ought  to  be  carried  in 
its  whole  spirit  into  rigid  execution;  "  but,  inasmuch  as  the  disquali 
fication,  if  admitted  in  its  whole  spirit  and  carried  into  rigid  execu 
tion,  did  not  change  the  result  of  that  election,  as  Martin  Van  Buren 
was  elected  President,  and  the  election  of  Vice-President  went  to  the 
Senate,  they  reported  no  steps  as  necessary  to  be  taken,  and  no  steps 
were  taken. 

Mr.  Commissioner  EDMUNDS.  Have  you  read  the  conclusion  of 
the  report  ? 

Mr.  HOADLY.  I  cannot  answer  the  question.  I  think  I  have  read 
the  conclusion  of  the  report,  but  unfortunately  copying  not  from  the 
Congressional  Globe  but  from  an  excerpt  which,  working  in  great 
haste,  I  had  to  use  for  my  own  convenience,  therefore  I  cannot  answer 
tho  question. 

Mr.  Commissioner  EDMUNDS.  I  had  the  impression  that  the  com 
mittee  had  added  something  else. 

Mr.  Commissioner  BRADLEY.    What  is  the  date  of  the  report  ? 

Mr.  HOADLY.     February  4,  1837. 

If  we  are  right  in  our  proposition  with  regard  to  the  facts,  Hum 
phreys  held  the  office  at  the  time  when  he  cast  his  vote.  The  only 
two  questions,  therefore,  which  present  themselves  for  debate  are, 
first,  did  he  hold  at  the  time  an  office  of  profit  and  trust ;  secondly  as 
to  the  effect  of  the  holding  provided  it  has  been  shown.  As  the 
questions  thus  present  themselves,  we  are  not  concerned  to  consider 
the  authorities  decided  in  cases  of  resignation  after  the  election,  ex 
cept  so  far  as  they  indicate  the  views  of  courts  with  regard  to  the 
effect  of  the  disqualifying  facts.  In  Rex  vs.  Monday,  (Cowper,  page 
535,)  Sergeant  Buller,*  afterward  Mr.  Justice  Buller,  states  the  rule 
thus,  arguetidb : 

Two  requisites  are  necessary  to  make  a  good  election  :  first,  a  capacity  in  the 
electors ;  second,  a  capacity  in  the  elected ;  and  unless  both  concur  the  election  is 


ELECTORAL  COMMISSION. 


a  nullity. 

They  cannot  say  11 


With  respect  to  the  capacity  of  the  electors  their  right  is  this  : 
irre  shall  l)c  no  election,  but  they  arotocloct.     Therefore,  though 

ot  say  that  such  a  one  shall 


by  voting  Cor  another  :'and  cvon  then,  if  such  other  person  be  unqualified  and  the 
elector  has  notice  of  his  incapacity,  his  vote  will  be  thrown  away. 

Such  is  the  well-settled  English  rule  as  affirmed  by  a  multitude  of 
cases  since. 

Lord  Chief-Justice  Wilmot,  in  the  same  volume,  note  to  page  39:3, 
in  the  case  of  Harrison  vs.  Evans,  discussing  the  statute  of  13  Charles 
II,  which  enacted  that  no  person  should  be  elected  into  any  corpora 
tion  office  who  had  not  received  the  sacrament  within  a  twelvemonth 
preceding  his  election  and  in  default  of  doing  so  the  election  and 
choice  should  be  void,  said  : 

The  provision  is  not  only  addressed  to  the  elected  and  a  provision  upon  them,  but 
a  provision  laid  down  upon  the  electors  if  they  have  notice.  The  Legislature  has 
commanded  them  not  to  choose  a  non-conformist,  because  he  ought  not  to  bo  trusted. 
Consequently,  with  respect  to  any  legal  effect  of  operation,  it  is  as  if  there  had 
been  no  election. 

So  in  a  multitude  of  cases  in  England  since,  as  I  said,  which  need 
not.  be  here  more  particularly  referred  to,  but  with  a  reference  to 
which  your  honors  will  be  furnished  in  our  brief.  The  same  doctrine 
is  applied  in  many  American  cases  also,  and  it  is  respectfully  sub 
mitted  that  there  is  no  case  to  the  contrary.  American  cases  have 
differed  widely  upon  the  question  whether  the  non-eligibility  of  the 
candidate  receiving  the  largest  vote  has  the  effect  to  qualify  and  elect 
the  next  highest  competing  candidate ;  but  no  American  case,  it  is 
respectfully  submitted,  treats  the  election  of  one  who  at  the  time  was 
non-qualified  and  who  attempted  to  act,  as  other  than  an  absolutely 
null  appointment.  To  this  effect  is  the  case  of  Soarcy  vs.  Grow,  15 
California,  118,  which  was  a  contest  for  the  office  of  sheriff  of  Siski, 
you  County,  where  Grow  was  returned  as  having  been  elected  and  was 
found  to  be  the  holder  of  an  office  of  profit  and  trust  under  the  con 
stitution  of  California,  to  which  a  disqualification  was  attached  by 
the  constitution,  and  who  had  resigned  after  the  election  and  before 
induction  into  the  shrievalty,  but  was  holding  the  disqualifying  office 
at  the  time  of  the  election.  Mr.  Justice  Baldwin,  Cope,  J.,  and  Field, 
C.  J.,  concurring,  said: 

The  people  in  this  case  were  clothed  with  this  power  of  choice.  Their  selection 
of  a  candidate  gave  him  all  the  claim  to  the  oflicp  which  he  has.  His  title  to  the 
office  comes  from  their  designation  of  him  as  sheriff.  But  they  could  not  designate 
or  choose  a  man  not  eligible — that  is,  not  capable  of  being  selected.  They  might 
select  any  man  they  chose,  subject  only  to  this  exception :  That  the  man  they 
selected  was  capable  of  taking  what  they  had  the  power  to  give.  "We  do  not  see 
how  the  fact  that  he  became  capable  of  taking  office  after  they  had  exercised  their 
power  can  avail  the  appellant.  If  he  was  not  eligible  at  the  time  the  votes  were 
cast  for  him,  the  election  failed. 

Of  course  your  honors  will  see  the  pertinency  of  this  quotation  to 
other  questions  that  may  arise  in  other  cases,  and  I  am  compelled  to 
read  portions  of  the  opinion  which  do  not  refer  to  the  particular  case 
in  hand  in  order  to  use  intelligently  those  portions  that  do  : 

If  he  was  not  eligible  at  the  time  the  votes  were  cast  for  him,  the  election  failed. 
We  do  not  see  how  it  can  bo  assumed  that  by  the  act  of  the  candidate  the  votes 
which,  when  cast,  wore  ineffectual  because  not  given  fora  qualified  candidate,  be 
came  effectual  to  elect  him  to  office. 

So  in  the  case  of  the  State  of  Nevada  on  the  relation  of  Nourse  vs. 
Clarke,  (3  Nevada,  5(51),)  which,  if  it  is  true,  may  be  treated  as  oMler 
dictum,  because  it  was  found  there  that  the  resignation  had  been  ef 
fectually  made  before  the  election,  the  court  discussed  this  question 
with  this  result :  "  That  a  person  holding  the  office  of  United  States 
district  attorney  on  the  day  of  election  was  incapable  of  being  chosen 
to  the  office  of  attorney-general  of  the  State,  because  of  a  provision 
in  the  State  constitution  to  the  effect  that  no  Federal  office-holder 
'shall  be  eligible  to  any  civil  office  of  profit  under  this  State.'  '  Which 
word  eligible,'  says  this  learned  court,  'means  both  of  being  legally 
chosen  and  capable  of  legally  holding.'" 

The  word  here  is  "  appointed ;"  that  no  person  holding  an  office 
shall  be  appointed  an  elector.  Who  appoints?  The  State  appoints; 
not  the  voters  of  the  State  ;  not  the  Legislature  of  the  State  ;  not  the 
governor  of  the  State ;  but  the  State  appoints.  The  State  appoints 
from  among  qualified  persons  ;  or,  which  is  the  same  thing,  the  State 
appoints,  but  may  not  appoint  a  disqualified  person.  Now,  the  State 
does  appoint  a  disqualified  person  and  the  disqualification  is  one  con 
tained  in  the  same  constitutional  provision  as  a  qualification,  limita 
tion,  restriction  of  the  same  constitutional  clause  which  gives  the 
right  to  appoint,  a  part  of  the  same  sentence  attached  to  the  grant 
of  power.  The  appointment  refers  to  the  act  of  the  State,  the  act  of 
the  State  on  the  day  which  Congress  has  named  as  the  day  upon  which 
only  the  choice  of  elector  can  be  made.  On  that  day  the  State  shall 
appoint,  but  shall  not  appoint  a  person  not  legally  qualified  to  hold 
the  office. 

In  Commonwealth  vs.  Cluley  (56  Pennsylvania  State  Reports,  270) 
the  election  went  back  to  the  people.  In  the  Indiana  cases  the  next 
highest  competing  candidate  was  declared  elected — going  beyond  the 
rule  we  ask  to  be  applied  to  the  Florida  electoral  college.  In  Searcy 
vs.  Grow  I  suppose  the  result  of  the  contest  was  to  unseat  the  dis 
qualified  person  without  seating  his  next  highest  competing  candi 
date.  In  all  the  cases  which  are  commented  upon  in  the  decision  of 
Gulick  vs.  New,  in  14  Indiana,  93,  and  by  the  various  authorities 
and  text- writers  on  this  subject,  no  one,  I  submit,  will  be  found  which 


favors  the  idea  that  the  election  of  one  constitutionally  disqualified 
can  by  any  possibility  result,  if  it  do  not  elect  the  next  highest  can 
didate,  in  anything  else  than  a  failure  to  elect;  and  Congress  by  its 
legislation  on  this  subject  has  indicated  its  purpose  in  the  same  direc 
tion.  Thus  the  one  hundred  and  thirty-third  section  of  the  Revised 
Statutes  provides  for  a  case  of  vacancy  occurring  when  the  college 
of  electors  shall  meet  to  cast  their  votes.  Section  134  provides  for  a 
case  where  the  State  shall  fail  to  elect ;  that,  where  the  State  shall 
fail  to  elect  on  the  day  provided,  the  electors  may  be  appointed  on  a 
subsequent  day  in  such  manner  as  the  Legislature  of  such  State  may 
direct.  These  provisions  of  law  which  have  been  in  force  since  the 
act  of  January  23,  1845,  in  that  statute  were  attached,  and  not  sepa 
rated  as  in  the  Revised  Statutes  and  thrown  into  two  separate  sec 
tions  ;  these  two  provisions  of  law  which  were  then  attached  to  each 
other  indicate  the  meaning  of  the  law-makers  of  this  generation  and 
the  last  to  furnish  a  remedy  in  case  of  the  election  of  one  disqualified 
under  the  Constitution. 

If  it  be  shown  that  the  State  of  Florida  has  acted  under  the  one 
hundred  and  thirty-fourth  section  of  the  Revised  Statutes,  then  the 
vote  of  Florida  is  not  diminished  by  reason  of  the  fact  that  on  the 
7th  of  November  one  of  the  persons  voted  for  was  disqualified. 

SEC.  134.  Whenever  any  State  has  held  an  election  for  the  purpose  of  choosing 
electors,  and  has  failed  to  make  a  choice  on  the  day  prescribed  by  law,  the  electors 
may  be  appointed  on  a  subsequent  day  in  such  a  manner  as  the  Legislature  of  such 
Sta'to  may  direct. 

If  it  were  true  as  ruled  in  Furmanrs.  Clute,  50  New  York  Reports  ; 
in  Commonwealth  vs.  Cluley,  56  Pennsylvania  State  Reports;  in 
Searcy  vs.  Grow,  in  15  California  Reports  ;  if  it  were  true  as  ruled  in 
all  the  American  cases  which  have  held  that  the  next  highest  com 
peting  candidate  was  not  elected,  that  the  case  was  one  of  non-elec 
tion  and  rendered  necessary  a  new  election,  then  I  respectfully  submit 
that  the  one  hundred  and  thirty-fourth  section  of  the  Revised  Statutes 
provided  for  the  State  of  Florida  a  remedy  for  the  mischief  to  which 
she  was  found  on  the  7th  of  November  to  have  been  subjected.  She 
could  have  provided  by  law,  as  I  shall  presently  show  to  your  honors 
was  done  in  the  State  of  Rhode  Island,  to  meet  the  exact  contingency. 
It  is  not  the  case  of  an  absolute  non-election  or  one  where  there  has 
been  no  attempt  to  hold  an  election  to  which  this  section  refers. 
This  provision  of  law  operates  whenever  any  State  has  held  an  elec 
tion  for  the  purpose  of  choosing  electors  and  has  failed  to  make  a 
choice  on  the  day  prescribed  by  law.  Then  the  electors  may  be  ap 
pointed  on  a  subsequent  day  in  such  manner  as  the  Legislature  of  such 
State  may  direct. 

If  every  elector  in  every  State  in  the  United  States  were  disquali 
fied,  would  it  not  be  true  that  there  was  an  election  held  and  a  failure 
to  make  choice  ?  If  every  elector  in  the  State  of  Florida  was  dis 
qualified,  would  it  not  be  true  that  there  was  an  election  held,  but 
without  choice  ?  If,  in  the  State  of  Pennsylvania,  in  the  case  of 
Cluley  the  people  had  again  to  elect ;  if,  in  New  York,  in  Furman  vs. 
Clute',  the  people  had  again  to  elect ;  if,  in  California,  in  the  case  of 
Searcy  vs.  Grow,  the  people  had  again  to  elect,  then  it  would  follow 
that,  if  all  the  four  electors  of  the  State  of  Florida  were  disqualified, 
it  would  be  clearly  a  case  of  failure  to  make  choice,  and  the  people 
would  have  again  to  elect,  provided  the  Legislature  confided  to  the 
people,  under  section  134,  the  function  of  electing  for  the  second 
time  and  did  not  exercise  it  themselves,  as  was  done  in  Rhode  Island. 
Omne  may  us  continet  in  se  minus. 

If  it  be  a  failure  to  make  choice  where  a  single  disqualified  candi 
date  runs  against  another  officer,  if  it  be  a  failure  to  make  choice  so 
that  he  can  be  divested  and  a  new  election  is  required  to  be  held,  and 
if  there  be  a  provision  of  statute  law  of  the  United  States  contemplat 
ing  the  emergency  and  providing  a  remedy,  and  if  the  power  of  ap 
pointment  be  with  the  State  and  if  the  opportunity  of  remedy  be  with 
the  State,  then  I  submit  that  it  must  be  shown  that  the  State  has 
taken  advantage  of  this  provision  of  the  Revised  Statutes,  section 
134,  or  the  single  vote  is  lost. 

The  question  came  directly  before  the  judges  of  the  supreme  court 
of  Rhode  Island  in  the  case  of  George  H.  Corliss,  who  held  the  office 
of  member  of  the  Centennial  Commission  under  the  United  States  on 
the  day  of  the  presidential  election.  The  governor,  under  the  au 
thority  of  the  statutes,  submitted  to  the  judges  of  the  supreme  court 
of  that  State  five  questions :  First,  whether  the  office  of  centennial 
commissioner  was  an  office  of  trust  and  profit,  which  they  answered 
by  a  majority  of  voices  that  it  was,  such  as  disqualified  the  holder 
for  the  office  of  elector  of  President  and  Vice-President.  Second, 
whether  the  candidate  who  received  a  plurality  of  votes  created  a 
vacancy  by  declining  the  office.  TLird,  whether  the  disqualification 
was  removed  by  the  resignation  of  the  said  office  of  trust  or  profit. 
Fourth,  whether  the  disqualification  resulted  in  the  election  of  the 
candidate  next  highest  in  number  of  votes ;  or  in  failure  to  elect. 
Fifth,  if  by  reason  of  the  disqualification  of  the  candidate  who  re 
ceived  the  plurality  of  the  votes  given  there  was  no  election,  could 
the  General  Assembly  in  grand  committee  elect  an  elector? 

The  judges  answered  the  first  question  as  I  said  by  a  majority  of 
voices,  that  it  was  a  disqualifying  fact  to  hold  the  office  of  commis 
sioner  of  the  United  States  Centennial  Commission,  and  by  all  their 
voices  agreeing  answered  that  "such  candidate  who  received  a  plu 
rality  declining  the  office  did  not  create  a  vacancy;"  that  the  disqual 
ification  was  not  removed  by  the  resignation  of  the  office,  but  that 
the  disqualification  did  not  result  in  the  election  of  the  candidate 


ELECTORAL  COMMISSION. 


43 


next  in  vote,  bnt  did  result  in  a  failure  to  elect,  and  that  there  was 
no  election,  so  that  the  General  Assembly  in  grand  committee  might 
elect,  and  the  General  Assembly  in  grand  committee  did  elect. 

The  PRESIDENT.    Who  gave  the  opinion  ? 

Mr.  HOADLY.  The  opinion  is  signed  by  all  the  judges,  Thomas 
Durfeo,  W.  S.  Barges,  E.  R.  Potter,  Charles  Matteson,  and  Stiness. 
It  was  a  question  submitted  under  the  constitution  and  laws  of  that 
State.  I  read  it  at  this  time  in  order  that  I  may  if  possible  satisfy 
the  Commission  that  the  construction  which  I  place  0:1  section  134  of 
tiie  Revised  Statutes  is  the  correct  construction. 

In  answer  to  the  fourth  question  which  was  this,  "  if  not,  does  the 
disqualification  result  in  the  election  of  the  candidate  next  in  vote 
or  in  a  failure  to  elect,"  the  court  answered : 

We  think  the  disqualification  does  not  result  in  the  election  of  the  candidate  next 
in  vote,  but  in  a  failure  to  elect. 

In  England  it  has  been  held  that  where  electors  vote  for  an  ineligible  candi 
date,  knowing  his  disqualification,  their  votes  are  not  to  bo  counted,  any  more  than 
if  they  were  thrown  for  a  dead  man  or  the  man  in  the  moon,  and  that  in  such  a  case 
the  opposing  candidate,  being  qualified,  will  be  elected,  although  ho  has  had  a 
minority  of  the  votes. 

And  such  is  the  rule  in  Indiana  and  as  was  established  at  an  early 
day  in  Maryland  by  Chief-Justice  Samuel  Chase  of  that  State,  and 
has  continued  in  force,  as  I  am  informed,  down  to  this  time,  and  been 
enforced  very  recently.  The  judges  of  Rhode  Island  sustain  this  by 
the  following  references :  10  East.,  210  ;  Reg.  vs.  Coaks,  3  El.  and  B., 
253. 

But  even  in  England,  if  the  disqualification  is  unknown,  the  minority  candidate 
is  not  entitled  to  the  office,  the  election  being  a  failure.  (Queen  vs.  Hiornes,  7 
Ad.  and  E.,  000;  Rexus.  Bridge,  1  M.  and  Selw.,  7(i.)  And  it  has  been  held  that  to 
entitle  the  minority  candidate  to  the  office  it  is  not  enough  that  the  electors  knew 
of  the  facts  which  amount  to  a  disqualification,  unless  they  likewise  knew  that 
they  amount  to  it  in  point  of  law.  (The  Queen  vs.  The  Mayor,  &c.,  Law  Hop.,  3  Q. 

B  ,'oaoo 

In  this  country  the  law  is  certainly  not  more  favorable  to  the  minority  candidate. 
(State  vs.  Giles,' 1  Chandler,  Wis.,  112;  State  vs.  Smith,  14  Wis.,  437  ;  Sauuders  vs. 
Haynes,  13  Cal.,  145;  People  vs.  Clutc,  50  N.  Y.,  451.)  The  question  submitted  to 
us  docs  not  allege  or  imply  that  the  electors,  knowing  the  disqualification,  voted 
for  the  ineligible  candidate  in  willful  defiance  of  the  law  ;  and  certainly,  in  the  ab 
sence  of  proof,  it,  is  not  to  be  presumed  that  they  so  voted.  The  only  effect  of  the 
disqualification,  in  our  opinion,  is  to  render  void  the  election  of  the  candidate  who 
is  disqualified,  and  to  leave  one  place  m  the  electoral  college  unfilled. 

The  answer  to  the  fifth  question,  "  If  by  reason  of  the  disqualifica 
tion  of  the  candidate  who  received  a  plurality  of  the  votes  given  there 
was  no  election,  can  the  General  Assembly  in  grand  committee  select 
an  electoi^"  was  in  the  affirmative.  The  court  in  discussing  another 
question  had  cited  the  seventh  section  of  the  general  statutes  of  Rhode 
Island,  chapter  11,  to  wit: 

If  any  electors,  chosen  as  aforesaid,  shall,  after  said  election,  decline  the  said 
office,  or  bo  prevented  by  any  cause  from  serving  therein,  the  other  electors,  when 
met  in  Bristol  in  pursuance  of  this  chapter,  shall  fill  such  vacancies. 

They  had  decided  that  disqualification  did  not  create  a  case  of  va 
cancy.  They  then  considered  another  statute  of  Rhode  Island  which 
they  held  to  have  been  passed  under  the  authority  confided  to  the 
State  of  Rhode  Island  by  the  one  hundred  and  thirty-fourth  section 
of  the  Revised  Statutes. 

"Our  statute  (General  Statute,  ch.  11,  section  5)  provides  that  if  by  reason  of  the 
votes  being  equally  divided,  or  otherwise,  there  shall  not  be  an  election  of  the  num 
ber  of  electors  to  which  the  State  may  bo  entitled,  the  governor  shall  forthwith 
convene  the  General  Assembly  at  Providence  for  the  choice  of  electors  to  fill  such 
vacancy  by  an  election  in  grand  committee."  Wo  think  this  provision  covers  the 
contingency  which  has  happened,  and  that,  therefore,  the  General  Assembly  in 
grand  committee  can  elect  an  elector  to  till  up  the  number  to  which  the  State  is 
entitled.  The  law  of  the  United  States  provides  that  "whenever  any  State  has 
held  an  election  for  the  purpose  of  choosing  electors,  and  has  failed  to  make  choice 
on  the  day  prescribed  by  law  the  electors  may  be  appointed  on  a  subsequent  day, 
in  such  manner  as  the  Legislature  of  the  State  may  direct." 

We  have,  then,  the  unanimous  opinion  of  all  the  judges  of  Rhode 
Island  to  the  effect  that  the  distinction  on  which  wo  insist  is  well 
taken,  that  the  acts  of  Congress  are  furnished  for  the  purpose  of  cov 
ering  all  the  cases  that  may  arise,  in  order  that  the  constitutional 
provision  may  have  full  force  and  effect ;  and  yet  that  the  State  may 
not  be  deprived  of  its  opportunity  to  bo  fully  represented  in  the 
electoral  college.  The  inhibition  of  the  Constitution  being  peremp 
tory,  were  there  no  such  provision  as  that  contained  in  section  134, 
the  vote  of  the  State  would  necessarily  be  lost,  unless  it  could  bo 
shown  by  some  principle  of  law,  by  tiie  authority  of  some  decided 
case,  that  the  election  of  a  disqualified  candidate  is  possible  not 
withstanding  the  disqualification  is  contained  in  a  constitutional. in 
hibition  of  the  character  here  referred  to. 

But  peradventure,  by  mistake  and  without  the  intent  to  violate  the 
spirit  of  the  constitutional  provision,  by  mere  misadventure  the  State 
may  have  selected  as  one  of  its  electors  or  as  all  of  its  electors  per 
sons  holding  disqualified  offices,  and  therefore,  said  Congress,  when 
ever  there  be  a  case  of  non-election  in  any  State  the  Legislature  may 
provide  a  method  of  supplying  the  defect,  and  whenever  there  be  a 
case  of  vacancy  the  Legislature  may  provide  a  method  of  supplying 
the  defect ;  a  vacancy  which  occurs  when  the  college  of  electors  meets, 
a  non-election  which  occurs  when  an  election  has  been  held.  If  no 
election  has  been  held,  there  is  no  provision  of  statutory  law  to  meet 
the  case  at  all ;  but  the  one  hundred  and  thirty-third  section  provides 
for  the  case  of  a  vacancy  when  there  has  been  a  qualified  person 
elected,  and  the  one  hundred  and  thirty-fourth  section  provides  for 
the  case  of  non-election  when  an  election  has  been  held.  It  does  not 
contemplate  the  case  where  no  election  at  all  has  been  held,  but  it 
explicitly  provides  for  a  case  where  an  election  has  been  held  which 


has  not  resulted  in  the  choice  of  a  competent  and  qualified  candidate, 
and  furnished  to  the  people  of  the  State  of  Florida,  as  it  did  to  the 
State  of  Rhode  Island,  ample  opportunity  to  save  themselves  from 
all  misadventure,  from  all  the  consequences  of  mistake,  or  ignorance, 
or  innocent  evil,  by  enabling  them  to  have  a  second  opportunity,  not 
withstanding  the  constitutional  provision  that  Congress  may  deter 
mine  the  time  of  choosing  the  electors. 

Mr.  GREEN.  Mr.  President  and  gentlemen  of  the  Electoral  Com 
mission,  that  portion  of  the  duty  whieh  has  been  assigned  to  me  con 
sists  in  submitting  by  way  of  opening  the  views  which  the  counsel 
for  the  objectors  to  return  No.  1  feel  it  necessary  to  make  under  the 
orders  of  the  Commission  read  to  them  this  morning.  That  portion 
of  the  opening  argument  which  relates  to  the  second  branch  of  the 
order  has  been  disposed  of  by  my  friend  Judge  Hoadly,  and  we  leave 
it  just  there  with  a  single  additional  suggestion  which  I  have  been 
desired  to  make,  namely,  that  this  office  of  shipping  commissioner 
being  one  to  be  filled  by  the  court  could  be  only  surrendered  up  or 
resigned  to  the  court  itself  ;  that  the  so-called  letter  of  resignation 
sent  to  Judge  Woods,  and  for  aught  this  Commission  knows  by  him 
still  retained,  fails  to  perform  the  office  sought  to  bo  imputed  to  it 
until  it  reaches  the  records  of  the  court  or  receives  some  official  recog 
nition  from  the  court  itself.  If  that  letter  had  been  sent,  by  mail,  it 
could  have  no  effect  until  it  reached  its  destination.  Had  it  been  sent 
by  messenger  no  effect  could  have  been  given  to  it  until  it  reached 
the  archives  of  the  court ;  and  the  mere  fact  of  its  reception  by  Judge 
Woods  himself  gives  it  no  other  or  greater  validity  than  if  it  had  been 
in  the  pocket  of  the  messenger  or  in  the  mail-bag. 

Moreover  I  am  desired  to  call  the  attention  of  the  Commission  to 
the  certificate  of  the  clerk  of  the  circuit  court  read  in  evidence  this 
morning.  I  have  not  the  paper  before  me,  and  therefore  may  not 
state  its  date  with  accuracy;  but  my  recollection  of  it  is  that  it  con 
tains  a  certificate  that  up  to  a  very  recent  period,  certainly  subse 
quent  to  the  time  when  Humphreys  acted  as  an  elector,  no  resigna 
tion  of  his  office  had  yet  reached  the  archives  of  the  court ;  and  with 
these  suggestions  I  pass  to  the  other  branch  of  the  case. 

The  order  which  has  been  read  to  us  this  morning  directs  the  re 
ception  and  consideration  of  all  evidence  submitted  to  the  joint  con 
vention  of  the  two  Houses  by  the  President  of  the  Senate,  together 
with  the  certificates  which  were  also  presented  by  him  to  the  joint 
convention  ;  and  in  order  that  we  may  distinctly  understand  whore 
we  have  arrived  in  the  progress  of  the  discussion  of  this  great  ques 
tion,  it  is  proper  for  us  to  consider  what  were  the  papers  presented 
by  the  President  of  the  Senate  to  the  joint  convention  of  the  two 
Houses. 

They  were,  first,  what  is  known  as  return  No.  1,  which  has  been 
printed  for  the  use  of  the  Commission.  It  consists  of  three  docu 
ments.  The  first  one  is  the  certificate  of  Governor  Stearns,  dated  Gth 
December,  1876,  under  the  seal  of  the  State,  and  attested  by  the 
secretary  of  state.  It  purports  to  be  the  list  which  is  contemplated 
by  the  act  of  Congress.  Although  that  list  may  not  state  the  exact 
and  true  fact,  it  would  seem  to  be  not  objectionable  in  point  of  form. 
Next  follows  the  certificate  signed  by  Humphreys,  Peurco,  Holden, 
and  Long,  the  Hayes  electors,  stating  that  they  had,  pursuant  to  the 
Constitution  and  laws  of  the  United  States,  been  appointed  electors 
and  had  assembled  at  the  State  capitol  and  had  voted  by  ballot  for 
President  and  Vice-President  in  two  distinct  ballots,  stating  in  the 
first  certificate  the  result  for  President  and  with  a  like  preamble 
stating  the  result  for  Vice-President  in  the  second  certificate.  This, 
if  the  Commission  please,  is  all  that  is  contained  in  what  is  known 
as  certificate  or  return  No.  1. 

Certificate  or  return  No.  2  consists  of  a  certificate  of  Mr.  Cocke, 
the  attorney-general  of  the  State  of  Florida,  to  the  effect  that  he  is 
attorney-general  of  the  State  of  Florida  and  a  member  of  the  State 
board  of  canvassers,  and  that  by  the  authentic  returns  of  the  votes 
cast  in  the  several  counties  of  the  State  of  Florida  at  the  election 
held  in  November,  1876 — 

Said  returns  being  on  file  in  the  office  of  the  secretary  of  state,  and  seen  and  con 
sidered  by  me,  as  such  member  of  the  board  of  State  canvassers  of  the  said  State  of 
Florida,  it  appears  and  is  shown  that  Wilkinson  Call — 

And  the  other  Tilden  electors,  naming  them— 
were  chosen  the  four  electors  of  President  and  Vice-President  of  the  United  States. 

And  he  further  certifies  : 

That,  under  the  act  of  the  Legislature  of  the  State  of  Florida  establishing  said 
board  of  State  canvassers,  no  provision  has  been  enacted,  nor  is  any  such  pro 
vision  contained  in  the  statute  law  of  this  State,  whereby  the  result  shown  and  ap 
pearing  by  said  returns  to  said  board  of  State  canvassers  can  be  certified  to  the 
executive  of  the  said  State. 

Next  follows  an  oath  of  office  on  the  part  of  Call  and  the  other  so- 
called  Tilden  electors,  and  then  the  certificate  of  Call  and  the  other 
electors  of  their  having  met  according  to  law  and  having  balloted  for 
President  and  also  Vice-President  by  distinct  ballots  and  certifying 
that  the  result  is  that  Samuel  J.  Tilden,  of  New  York,  received  4 
votes  for  President  and  Thomas  A.  Hendricks,  of  the  State  of  Indiana, 
4  votes  for  Vice-President.  Attached  to  this  certificate  is  another 
one: 

And  we  further  certify  that,  having  met  and  convened  as  such  electors,  at  the 
time  and  place  designated  by  law,  we  did  notify  the  governor  of  the  State  of  Florida, 
the  executive  of  said  State.'of  our  appointment  as  such  electors,  and  did  apply  to 
and  demand  of  him  to  cause  to  be  delivered  to  us  three  Ifsts  of  the  names  of  the 
electors  of  the  said  State,  according  to  law,  and  the  said  governor  did  refuse  to  de 
liver  the  same  to  us. 


44 


ELECTORAL  COMMISSION. 


This  return  No.  2,  made  by  (lie  attorney-general  and  by  tLe  elect 
ors,  accompanied  by  the  oath  of  office  on  the  part  of  the  electors,  be 
ing  an  official  document  under  the  sanction  of  an  official  oath,  being 
a  declaration  made  by  these  electors  and  by  the  attorney-general, 
who  was  also  a  member  of  the  board  of  State  canvassers,  solemnly  in 
this  manner,  is  at  least  some  evidence  before  this  Commission  to  sup 
port  the  facts  which  are  stated  in  it.  It  appears  from  this  official 
certilicale  thus  made  by  the  attorney-general  that  by  the  returns  of 
the.  election  on  file  in  the  office  of  the  secretary  of  state, seen  and 
considered  by  him  as  a  member  of  the  board  of  State  canvassers,  that 
Call  and  the  other  Tilden  electors  were  duly  chosen  and  appointed 
electors  for  the  State  of  Florida;  audit  also  supplies  the  evidence 
necessary  to  satisfy  the  inquiry  why  the  attorney-general  should 
make  this  certificate  and  Avhy  the  governor  did  not,  because  the 
electors  themselves  certify  that  they  made  an  application  to  the  gov 
ernor  for  a  proper  certificate  and  that  he  refused  to  give  it  to  them. 

Certificate  or  return  No.  3,  which  was  received,  as  it  appears  from 
the  statement  made  by  the  Presiding  Officer  of  the  joint  convention, 
on  the  Hist -day  of  January,  1877,  and  so  stated  by  him  to  the  joint  con 
vention  on  Thursday  last,  consists  of  sovera.1  papers,  and  I  proceed 
now  to  call  the  attention  of  the  Commission  to  what  those  papers  are. 

First  in  order  is  a  certificate  of  Governor  Drew,  the  governor  of 
the  State  of  Florida,  bearing  date  the  26th  day  of  January,  1877,  under 
the  great  seal  of  the  State  and  attested  by  the  secretary  of  state.  It 
recites  first  an  act  of  the  Legislature  of  the  State  of  Florida  of  the 
17th  of  January,  1877,  being  an  act  to  procure  a  recauvass  of  the 
electoral  vote  of  the  State  of  Florida,  as  cast  at  the  election  held  on 
the  7th  of  November,  1876.  It  recites  the  making  of  the  canvass  un 
der  the  authority  of  the  act,  according  to  the  laws  and  the  interpre 
tation  thereof  by  the  supreme  court  of  the  State  of  Florida.  It 
recites  that  by  the  said  canvass  the  Tilden  electors  were  duly  deter 
mined,  declared,  and  certified  to  have  been  elected  electors  at  the 
election  held  in  November,  1876,  as  shown  by  the  returns  of  the  votes 
on  file  in  the  office  of  secretary  of  state.  It  recites  that — in  quo  war- 
raiito  proceedings  wherein  the  said  Robert  Bullock  and  others,  the 
Tilden  electors,  were  relators,  and  Pearce  and  others,  the  Hayes  elect 
ors,  were  respondents — 

The  circuit  court  of  this  State  for  the  second  judicial  circuit,  after  full  consider 
ation  of  tho  law  and  the  proof's  produced  on  behalf  of  the  parties  respectively,  by 
its  judgment  determined  that  said  relators  were,  at  said  election,  in  fact  and  law, 
elected  such  electors  as  against  the  said  respondents  and  all  other  persons. 

So  that,  with  whatever  force  as  to  its  weight  or  as  to  tho  sufficiency 
of  its  mode  of  proof,  this  Commission  has  before  it  this  day  such 
evidence  as  must  carry  conviction  to  the  mind  of  every  member  of 
the  Commission  that  by  a  court  of  the  State  of  Florida  in  quo  war- 
ran  to  proceedings,  by  the  judgment  of  that  court  upon  the  pleadings 
and  upon  the  proofs,  it  was  held  and  determined,  not  merely  as  mat 
ter  of  law  but  also  as  matter  of  fact,  that  tho  Tilden  electors  were 
entitled  to  office  as  against  the  Hayes  electors  and  all  the  world  bo- 
side.  The  governor  then,  in  pursuance  of  another  act  of  the  Legis 
lature  of  the  State  of  Florida  of  tho  26th  of  January,  1877,  makes 
and  certifies  a  list  of  tho  names  of  the  electors  chosen,  appointed,  and 
declared  as  aforesaid,  which  contains  the  names  of  the  Tildeu  elect 
ors.  That  is  the  first  paper  in  what  is  known  as  return  No.  3. 

The  second  paper  consists  of  a  certificate  under  date  of  the  26th  of 
January.  1877,  signed  by  the  Tilden  electors,  reciting  that  the  execu 
tive  had  caused  three  lists  of  electors  to  be  made,  certified,  and  deliv 
ered  to  them,  one  of  which  was  thereto  annexed,  by  which  it  appeared 
that  they  had  on  the  7th  of  November,  1876,  been  duly  appointed 
electors,  and  then  that  they  did  on  the  first  Wednesday  of  December, 
l'-7t'i,  meet  at  the  capitol  at  Tallahassee  to  give  and  cast  their  votes 
as  electors  and  did  as  such  electors  by  ballot  vote  for  President  and 
Vice-Prosident  of  the  United  States,  and,  the  ballots  having  been 
opened,  inspected,  and  counted,  the  ballots  were  given  for  what  are 
called  the  Tilden  electors,  and  then  follow  tho  distinct  lists  of  votes 
cast  for  President  and  Vice-President  in  the  form  required. 

The  next  paper  in  order  in  this  return  is  an  act  of  tho  State  of 
Florida  under  the  date  of  the  17th  of  January,  1877,  certified  by  the 
secretary  of  state  under  the  great  seal.  This  act  provides  for  a 
board  of  State  canvassers  and  directs  them  to  meet  forthwith  at  tho 
office  of  the  secretary  of  state  and  to  proceed  to  canvass  the  returns 
of  tho  election  of  electors  and  determine  and  declare  who  were 
elected  and  appointed  electors  at  the  election  as  shown  by  tho  re 
turns  on  file  in  tho  office  of  the  secretary  of  state.  It  then  goes  on 
to  provide  that  the  mode  which  shall  be  adopted  by  this  board  of 
canvassers  for  determining  and  declaring  the  votes  shall  be  the  law 
as  prescribed  by  the  supreme  court  of  the  State  of  Florida  in  two 
cases  named,  the  case  of  Bloxham  vs.  Gibbs  and  the  case  of  Drowns; 
McLin,  the  latter  one  of  which  has  been  known  as  the  mandamus 
proceeding  instituted  by  Governor  Drew  as  against  McLiu  and  the 
other  members  of  tho  State  canvassing  board,  and  which  proceed 
ings  by  mandamus  and  the  opinion  of  the  court  in  regard  thereto 
tho  Commission  have  before  them  and  will  find  in  House  Document 
No.  35,  part  3,  and  known  as  the  exhibits. 

These  documents  of  course  are  not  in  evidence  before  the  Commis 
sion  iu  the  strict  sense  of  that  word,  but  wo  respectfully  submit  to 
the  Commission  that  inasmuch  as  in  order  to  determine  tliis  question 
they  must  arrive  at  a  construction  of  the  statutes  of  the  State  of 
Florida,  it  is  their  duty,  as  it  is  the  rule  of  every  court  iu  the  United 
States,  to  consider  such  decisions  as  binding  and  conclusive  upon 


them,  and  to  follow  tho  construction  given  by  the  State  courts  to  the 
State  statutes.  Therefore,  in  considering  what  are  the  powers  of  this 
State  board  of  canvassers  originally,  the  law  creating  it  and  defining 
its  duties  is  to  bo  taken  into  consideration  in  connection  with  the  de 
termination  of  tho  highest  court  of  the  State  of  Florida;  and  it  is 
with  a  view  that  the  Commission  may  be  informed  as  to  the  precise 
facts  which  were  under  consideration  in  this  mandamus  case  that  I 
call  your  attention  to  tho  exhibits  mentioned  in  that  document.  It 
will  be  found,  upon  inspection  of  the  document  and  of  tho  record, 
that  it  arose  out  of  transactions  of  tho  same  board  of  canvassers  at 
the  same  election,  and  passes  directly  upon  tho  legality  of  tho  same 
action  of  the  board  of  canvassers  as  is  involved  iu  the  presidential 
contest.  Tho  Commission  will  learn  from  the  opinions  and  from  tho 
exhibits  that  the  decision  of  the  supreme  court  of  the  State  of  Florida 
is  full  upon  the  point  which  has  been  cirgued  before  them  heretofore. 
They  clearly  demonstrate  that  the  action  of  the  State  board  of  can 
vassers  in  November  last,  by  which  the  Hayes  electors  claimed  to 
have  been  rightfully  elected,  has  been  solemnly  pronounced  by  ad 
judication  of  the  supremo  court  of  that  State  to  be  unauthorized, 
illegal,  and  void.  Now  is  it  necessary  for  me  to  interject  just  hero 
any  authority  upon  tho  point  as  to  the  binding  effect  of  this  decision 
of  the  State  courts  ?  And  yet,  perhaps,  it  will  be  as  convenient  to  do 
so  here  as  at  any  other  time..  If  the  Commission  please,  from  the  time 
of  the  case  of  Shelby  vs.  Gray,  in  11  Wheaton,  3(51,  through  Green  vs. 
Neal,  6  Peters,  291 ;  'Christy  vs.  Frit  chett,  4  Wallace,  201 ;  Tioga  Rail 
road  vs.  Blossburg  Railroad,  20  Wallace,  137,  down  to  Elmwood  vs. 
Macey,  2  Otto,  289,  an  unbroken  line  of  decisions  will  be  found  ;  and, 
if  we  correctly  apprehend  the  force  and  effect  of  this  current  of  judg 
ment  in  the  Supremo  Court  of  tho  United  States,  it  is  that  the  adjudi 
cations  of  this  highest  tribunal  of  tho  State  are  to  bo  deemed  and 
taken  as  a  part  of  the  very  statute  itself,  and  that  other  courts  in 
considering  what  is  meant  by  the  statute,  what  is  the  legislative  in 
tent,  exercise  no  independent  judgment  or  criticism  upon  the  language 
itself  or  upon  its  scope,  meaning,  or  effect,  but  accept  as  if  it  were 
incorporated  into  the  very  body  of  tho  legislative  act  the  construc 
tion  thus  placed  upon  it  by  the  highest  judicial  authority  in  the  State. 
The  court  say  in  the  case  of  Green  vs.  Neal : 

The  decision  of  this  question  by  the  highest  tribunal  of  a  State  shonld  be  con 
sidered  as  final  by  this  court,  not  because  the  State  tribunal  in  such  a  case  has  any 
power  to  bind  this  court,  but  because  a  fixed  and  received  construction  by  a  State 
iu  its  own  court  makes  it  part  of  the  State  law. 

Returning  now  to  the  consideration  of  this  return  No.  3*,  the  Com 
mission  will  find  that  by  the  third  section  of  the  act  tho  board  is  to 
"make  and  sign  a  certificate  containing  in  words  written  at  full 
length"  the  result  of  that  election,  and  that  that  certificate  is  to  be 
recorded  in  the  office  of  tho  secretary  of  state  in  a  book  kept  for  that 
purpose. 

Next  following  this  act  of  the  Legislature  is  the  certificate  of  the 
board  of  State  canvassers  organized  under  this  law  which  I  have  just 
read  and  dated  the  19th  day  of  January,  1877,  and  which  presents  to 
the  consideration  of  this  tribunal,  county  by  county,  all  the  returns 
for  presidential  electors  ou  file  in  the  office  of  the  secretary  of  state 
with  all  tho  details  of  tho  number  of  votes  cast  in  each  county,  for 
each  one  of  the  persons  voted  for,  and  at  the  end  of  it  is  a  summary 
or  tabulation,  the  result  of  which  shows  the  election  of  the  Tilden 
electors,  one  and  all. 

So  that  the  Commission  thus  far  have  not  only  the  certificate  of  the 
governor  of  tho  State  as  to  the  main  fact  at  issue  before  this  tribunal, 
but  they  have  in  detail,  county  by  county,  all  the  votes  cast  for  elect 
ors  of  President  and  Vice-Presideut,  and  a  tabulated  statement  show 
ing  the  election  of  the  Tilden  electors.  It  is  true  that  they  have  not 
all  this  mass  of  doucments,  sent  in  with  the  objections  tiled  to  the 
returns  ;  it  is  true  they  have  not  all  tho  original  precinct  returns  be 
fore  them  ;  but  they  have  that  before  them  which  answers  practically 
the  same  purpose.  They  have  a  certificate  made  in  due  form  of  law 
by  the  State  authority  showing,  so  far  as  needs  to  be  inquired  into 
just  here  and  now,  precisely  how  many  votes  were  cast  for  the  Hayes 
electors  and  precisely  how  many  vtoes  were  cast  for  the  Tilden  elect 
ors  in  every  county  of  the  State  of  Florida. 

Then  follows  another  act  of  the  Legislature.  The  executive  has 
spoken ;  the  canvassing  board  erected  under  State  authority  has 
spoken  ;  and  now  the  Legislature,  another  branch  of  the  government, 
speaks  iu  tho  same  unmistakable  tones  by  an  act  of  the  Legislature 
of  the  26th  of  January,  1877.  The  preamble  recites  that  according 
to  the  returns  from  the  several  counties  on  fde  in  the  secretary  of  state's 
office,  that  according  to  tho  canvass  made  by  the  board,  the  Tilden 
electors  were  chosen  in  such  manner  as  the  Legislature  of  the  State 
had  directed ;  that  the  original  canvassers  had  interpreted  the  law 
defining  their  powers  and  duties  in  such  a  manner  as  to  give  them 
power  to  exclude  certain  regular  returns,  and  did  under  such  errone 
ous  interpretation  exclude  certain  returns,  which  interpretation  had 
been  solemnly  adjudged  by  the  supreme  court  to  be  improper  and  ille 
gal.  It  also  recites  that  Governor  Stearns  by  means  of  such  illegal 
acton  misled,  deceived — no  allegation  of  fraud  it  is  true  there — but 
misled;  deceived  by  this  erroneous  interpretation  of  the  board  of  State 
canvassers,  founded  upon  their  erroneous  interpretation  of  the  law,  and 
deceived  by  the  illegal  and  erroneous  canvass  of  the  canvassers,  did 
erroneously  cause  to  be  made  a  certified  list  containing  Hayes  electors, 
when  in  fact  such  persons  had  not  received  the  highest  number  of 
votes,  and  that  on  a  canvass  conducted  according  to  the  rules  pro- 


ELECTORAL  COMMISSION. 


45 


scribed  and  adjudged  by  the  supreme  court,  were  not  appointed 
electors  or  entitled"  to  receive  such  lists  from  the  governor,  and  that 
the  Tilden  electors  were  truly  appointed  electors  and  entitled  to  have 
their  names  made  upon  a  list  and  certilied  by  the  governor.  This  is 
the  preamble  to  this  confirmatory  act. 

It  then  in  section  1  declares  that  the  Tilden  electors  were  duly  ap 
pointed  and  authorized  to  act  and  their  acts  are  ratitied  and  con 
firmed  and  declared  to  be  valid,  and  that  they  were  appointed  on, 
from,  and  after  the  7th  of  November,  1876.  The  second  section  au 
thorizes  the  governor  to  make  and  certify  three  lists  of  electors  ;  to 
transmit  them  in  the  manner  therein  mentioned ;  that  the  electors 
are  to  meet  at  Tallahassee,  and  that  they  are  to  give  an  additional 
certificate  of  the  votes  which  had  been  cast  by  them  on  the  6th  of 
December,  and  to  send  that  to  the  President  of  the  Senate  as  re 
quired  by  law. 

So  then,  if  the  Commission  please,  in  this  return  No.  3  we  have 
practically  all  the  branches  of  the  government  of  the  State  of  Flor 
ida  speaking  with  unanimous  and  united  voice  to  the  same  effect, 
and  certifying  to  the  same  fact  which  is  the  question  now  before  this 
tribunal  for  decision. 

It  is  upon  this  evidence  that  this  question  is  now  to  be  determined, 
and  the  different  kinds  of  evidence  may  bo  thus  classified:  They 
consist  first  of  lists  purporting  to  be  made  by  the  electors  under  the 
twelfth  article  of  amendments  to  the  Constitution,  the  certificates 
and  lists  made  out  under  and  in  pursuance  of  that  article  of  the  Con 
stitution.  If  these  prove  themselves,  they  both  have  the  same  force 
and  effect  and  this  Commission  would  be  at  a  loss  to  determine  which 
one  of  these  pieces  of  conflicting  evidence  is  to  be  potential,  and  in 
any  event  this  testimony  must  bo  deemed  inconclusive.  The  second 
class  of  evidence  are  the  lists  of  the  executive  under  the  one  hundred 
and  thirty-sixth  section  of  the  United  States  Revised  Statutes.  I 
shall  not  presume  at  this  stage  of  the  case  to  re-argue  the  question 
as  to  the  couclusiveness  of  the  governor's  certificates.  It  would  not 
be  necessary  to  do  so  after  what  has  been  already  said.  Moreover  I 
conceive  that  the  order  itself  practically  determines  that  question  in 
the  negative,  for  it  permits  other  evidence.  These  governor's  certifi 
cates  are  not  essential.  They  are  not  made  indispensable  or  conclu 
sive  or  exclusive  or  invested  with  any  particular  force  or  effect  by  the 
statute.  Their  permanent  absence  would  not  be  fatal  to  the  validity 
of  the  vote  of  the  electors.  They  are  mere  requests,  not  obligatory 
on  the  executive;  there  is  no  mode  of  compelling  the  performance  of 
the  duty  imposed  on  him.  And  here,  if  the  Commission  please,  I  beg 
leave  to  call  attention  to  the  message  of  Governor  Hancock  of  the 
Commonwealth  of  Massachusetts,  which  will  be  founil  appended  to 
a  brief  which  we.  shall  hand  up,  bearing  the  date  of  the  8th  day  of 
November,  1792.  It  is  as  follows  : 
Gentlemen  of  the  Senate  and  the  House  of  Representatives: 

By  the  Constitution  of  tho  United  States  of  America,  each  State  is  to  appoint,  in 
such  manner  as  the  Legislature  shall  direct,  electors  of  President  aud  Vice-Presi 
dent.  By  a  late  act  of  Congress  it  is  c  acted  "  that  tho  supreme  executive  of  each 
State  shall  cause  three  lists  of  tho  names  of  tho  electors  of  such  State  to  bo  made 
and  certiiied,  and  to  be  delivered  to  tho  electors  on  or  before  the  lirst  Wednesday 
in  December." 

I  feel  the  importeuce  of  giving  every  constitutional  support  to  the  General  Gov 
ernment,  and  I  also  atn  convinced  that  the  existence  and  well  being  of  that  Govern 
ment  depends  upon  preventing  a  confusion  of  the  authority  of  it  with  that  of  the 
States  separately.  But  that  Government  applies  itself  to  the  people  of  tho  United 
States  in  their  natural,  individual  capacity,  and  cannot  exert  any  force  upon,  or  by 
any  means  control  the  otlicors  of  the  State  governments  .'is  such  ;  therefore,  when 
an  act  of  Congress  uses  compulsory  words  with  regard  to  any  act  to  bo  done  by  tho 
supreme  executive  of  this  Commonwealth,  I  shall  not  feel  myself  obliged  to  obey 
them,  because  I  am  not,  in  my  official  capacity,  amenable  to  tliat  Government. 

My  duty  as  governor  will  most  certainly  oblige  mo  to  see  that  proper  and  efficient 
certificates  are  made  of  the  appointment  of  electors  of  President  and  Vice-Presi 
dent  ;  and  perhaps  the  mode  suggested  in  tho  act  above  mentioned  may  be  found  to 
bo  tho  most  proper.  If  yon,  gentlemen,  have  any  mode  to  propose  with  respect 
to  the  conduct  of  this  business,  I  shall  pay  every  attention  to  it. 

Gentlemen,  I  do  not  address  you  at  this  time  from  a  disposition  to  regard  the 
proceedings  of  the  General  Government  with  a  jealous  eye,  nor  do  I  suppose  that 
Congress  could  intend  that  clause  in  their  act  as  a  compulsory  provision ;  but  I 
wish  to  prevent  any  measure  to  proceed  through  inattention,  which  may  be  drawn 
into  precedents  hereafter,  to  the  injury  of  the  people  or  to  give  a  constructive  power 
•where  the  Federal  Constitution  has  not  expressly  given  it. 

This  injunction,  therefore,  is  not  mandatory  in  its  character ;  it  is 
not  obligatory  upon  the  State  officers ;  it  is  not  addressed  to  the  elect 
ors  who  cast  the  votes  or  to  the  tribunal  which  counts  them ;  but  to 
a  third  party  to  do  an  act  for  the  convenience  of  the  electors  and  of 
the  counting  tribunal.  But  it  has  been  intimated,  aud  it  may  be 
argued  perhaps,  that  this  certificate  or  return  No.  3  did  not  arrive  at 
the  seat  of  Government  before  the  first  Wednesday  in  January,  accord 
ing  to  a  forced  construction  as  it  seems  to  us  of  the  one  hundred  and 
fortieth  section  of  the  Revised  Statutes  of  the  United  States.  We  re 
spectfully  submit  to  the  Commission  that  this  provision  of  the  Revised 
Statutes  of  the  United  States  in  section  140,  as  well  as  the  direction 
contained  in  section  136  as  to  the  delivery  of  the  lists  by  tho  execu 
tive  to  the  electors,  is  merely  directory.  Upon  that  subject  I  desire 
to  call  the  attention  of  the  Commission — I  shall  not  stop  to  read  it — 
to  what  is  said  in  Sedgwick  on  Statutory  and  Constitutional  Law,  page 
:5(o  of  the  edition  of  1857,  and  also  to  recall  to  the  attention  of  the 
Commission  what  was  said  by  Lord  Mansfield  in  the  case  of  the  King 
vs.  Lock*dnle  in  1  Burrow's  Reports,  page  447. 

There  is  a  known  distinction  between  tho  circumstances  which  ar&of  tho«ssence 
of  the  thing  required  to  be  done  by  an  act  of  parliament  and  clauses  merely  direct 
ory.  The  precise  time  in  many  cases  is  not  of  the  essence. 


Now  if  the  Commission  look  at  the  purpose  of  this  enactment,  if 
they  will  consider  what  were  the  reasons  which  induced  the  Congress 
of  the  United  States  to  prescribe  the  times  therein  mentioned,  we 
submit  that  they  will  come  to  the  conclusion  that  the  time  or  times 
mentioned  therein  within  certain  prescribed  limits  are  not  of  the  es 
sence  and  that  they  are  not  essential  to  the  purpose  which  the  Legis 
lature  had  in  view  when  they  made  the  enactment.  Delay  in  the 
transmission  of  the  certificates  within  proper  limits  cannot  produce 
any  invalidity  or  work  any  legal  consequences.  The  reason  t  he  gov 
ernor  is  directed  in  section  136  to  furnish  the  list  on  or  before  the 
meeting  of  the  electoral  college  was  doubtless  that  the  college  may 
not  be  hindered  in  annexing  the  lists  on  tho  first  day  of  their  meeting 
if  they  choose  then  to  annex  them  to  their  statements  of  the  votes 
they  cast  for  President  and  Vice-President.  There  is  no  express  di 
rection  anywhere  which  requires  that  the  electoral  college,  after  it 
shall  have  met  and  cast  its  ballots,  shall  immediately  proceed  to  make 
out  the  lists  which  are  to  bo  transmitted  to  the  President  of  the  Sen 
ate.  There  ia  no  express  declaration  anywhere,  either  in  the  Consti 
tution  or  in  the  laws,  that  if  they  do  not  immediately  proceed  to 
make  out  and  certify  their  lists,  which  are  to  be  sent  to  the  President 
of  the  Senate,  their  action  shall  be  nugatory.  The  main  fact  which 
is  to  be  determined  is,  did  tho  electors  vote  according  to  the  consti 
tutional  requirement  ?  If  they  did  so  vote,  the  list  which  they  are 
to  send  to  the  President  of  the  Senate  may  as  soon  as  can  conveniently 
be  done  be  made  out  and  sent ;  but  there  is  no  absolute  requirement 
that  they  shall  be  so  made  out  and  sent  immediately. 

The  first  Wednesday  in  December  is  fixed  by  the  statute  for  the 
meeting  of  the  electors.  The  delivery  of  the  statement  by  the  elect 
ors  of  their  votes  by  messenger  to  the  President  of  the  Senate  at  the 
seat  of  Government  is  to  be  made  at  any  time  before  the  first  Wednes 
day  in  January.  Thirty  days  are  thus  allowed  for  transmission  and 
delivery.  No  doubt,  we  submit,  it  would  be  a  perfect  compliance 
with  this  provision  if  the  electors'  statement  of  their  votes  were 
made  out  and  the  list  of  the  governor  obtained  and  annexed  at  any 
time  so  that  the  delivery  should  be  made  within  the  thirty  days.  It 
is  true  that  the  statement  of  the  votes  to  be  forwarded  by  mail  and 
tho  statement  to  be  deposited  with  the  district  judge  are  required  to 
be  sent  forthwith  ;  but  the  one  transmitted  by  messenger  would  bo 
good  whether  the  others  reached  the  seat  oi'  Government  or  not. 
And  practically  it  is  matter  of  public  notoriety  that  the  occasion  has 
never,  or  if  ever  very  seldom,  arisen  when  the  certificate  deposited 
with  the  district  judge  has  ever  been  called  in  requisition  or  has 
reached  the  seat  of  Government.  No  time  is  fixed  by  any  of  the 
statutes  of  tho  United  States  for  the  arrival  at  the  seat  of  Govern 
ment  of  the  certificate  deposited  with  the  district  judge.  If  it  was 
received  at  any  time  before  it  was  to  be  used  in  the  counting  of  tho 
votes,  we  submit  that  that  would  be  sufficient.  The  vote  could  not 
be  objected  to  because  it  had  not  arrived  earlier. 

Now,  taking  all  these  statutory  provisions  together,  they  exhibit 
careful  precautions  that  the  votes  shall  bo  received  before  the  count. 
That  is  the  point  to  be  arrived  at,  that  the  votes  shall  be  received 
before  the  counting  takes  place.  Whether  they  get  there  one  day 
after  tho  meeting  of  the  electoral  college  or  thirty  days  after  the  meet 
ing  of  the  electoral  college  is  immaterial.  The  point  to  be  arrived  at 
is  that  they  get  to  the  seat  of  Government  before  the  count. 

The  specifications  of  the  times  at  which  or  before  which  acts  shall  bo  done  to 
furnish  evidence  to  the  counting  tribunal  as  to  who  have  been  appointed  electors 
and  for  whom  those  electors  have  voted  are  merely  directory.  The  times  arc  fixed, 
so  that  each  act  shall  be  done  in  season  to  cnabloth'enext  step  to  be  promptly  taken 
and  in  season  to  enable  any  failures  to  be  remedied.  These  limitations  of  time  are 
precautionary  and  remedial ;  they  are  intended  to  save  and  give  eflect  to  the  votes. 
They  are  not  snares  to  betray  and  destroy  tho  votes. 

This  line  of  argument  is  carried  out  more  fully  in  the  printed  brief 
which  wo  shall  submit  to  the  Commission,  and  I  therefore  pass  to  an 
other  point.  We  contend  that  these  certified  lists  which  are  con 
tained  in  return  No.  3,  and  furnished  afterward,  are  effectual.  We 
submit  the  proposition  that  such  acts  of  public  officers,  if  not  done 
within  the  time  prescribed  by  law,  do  not  thereby  become  incapable 
of  being  done  afterward.  They  do  not  only  remain  capable  of  being 
done,  but  tho  duty  of  public  officers  to  do  them  subsists  in  full  vigor 
and  operation,  and  the  right  to  compel  their  performance  by  public 
officers  accrues  for  the  very  reason  that  the  time  limited  by  the  law 
has  passed. 

I  beg  to  call  tho  attention  of  the  tribunal  upon  that  point  to  what 
is  said  by  the  court  of  Queen's  Bench  in  11  Adolphus  aud  Ellis: 

It  would  be  too  great  a  triumph  for  injustice  if  toe  should  enable  it  to  postpone  for 
ever  the  performance  of  a  plain  duty  only  because  ithad  donewrongat  therightseaaon. 

This  same  idea  is  illustrated  by  the  doctrine  of  the  courts  in  regard 
to  mandamus.  It  is  often  invoked  on  the  very  ground  that  tho  time 
fixed  by  law  for  specific  acts  has  expired.  In  the  case  of  The  Mayor 
of  Rochester  vs.  Tho  Queen,  in  1  Blackburn  aud  Ellis,  page  1024,  tho 
court  say : 

We  are  of  opinion  that  the  court  of  Queen's  Bench  was  right,  and  ought  to  bo 


ouzht'to  compel  tlio"performaiice  of  a  public  duty  by  public  officers,  although  the 
time  prescribed  by  statute  for  the  performance  of  them  has  passed. 

And  in  particular  I  refer  to  what  is  said  by  the  supreme  court  of 


46 


ELECTORAL  COMMISSION. 


New  York  in  the  case  of  ex  parte  Heath,  3  Hill  E.,  42,  which  was  an 
election  case  coming  up  on  proceedings  for  mandamus: 

Ward  inspectors  of  Now  York  City  worn  required  by  statute  to  certify  the  result 
of  tho  ward  election  "  on  the  day  subsequent  to  tUo  closing  of  the  polls,  or  sooner." 
A  ward  election  was  held  on  the  12th  of  April  ;  the  result  was  not  certified  until 
the  14lh. 

The  return  was  held  valid  notwithstanding,  and  the  mandamus  was 
directed  to  go  commanding  the  mayor  to  administer  the  oath  to  the 
persons  returned  as  elected.  In  the  opinion  of  the  court  it  is  said  : 

The  idea  which  wo  understood  to  be  thrown  out  in  argument,  that  the  return 
from  the  sixth  ward  was  void  because  not  completed  till  the  14th  of  April  instead 
of  the  13th,  is  altogether  inadmissible.  Nothing  is  better  settled,  as  a  general  rule, 
than  that  where  a  statute  requires  an  act  to  be  done  by  an  officer  within  a  certain 
tim,e,  for  a  public  purpose,  the  statute  shall  bo  taken  to  be  merely  directory ;  and 
though  he  neglect  his  duty  by  allowing  the  precise  time  to  go  by,  if  ho  afterward 
perform,  the  public  shall  not  suffer  by  the  delay. 

I  next  call  the  attention  of  the  tribunal  to  another  piece  of  evi 
dence  which  is  of  the  third  class,  namely,  the  act  of  the  Legislature  of 
January  17, 1877.  This  is  a  curative  act,  simply  allowing  and  requir 
ing  a  piece  of  evidence  to  he  supplied  after  the  time  within  which 
the  law  requires  the  public  officers  to  furnish  it.  I  shall  not  trouble 
the  Commission  with  going  over  it  again.  I  simply  call  their  at 
tention  to  the  fact  that  this  is  what  it  seeks  to  accomplish.  It  is  a 
curative  act.  It  simply  allows  and  requires  this  piece  of  evidence  to 
he  supplied  after  the  time  within  which  the  law  required  the  public 
officers  to  furnish  it,  but  before  it  is  needed  for  the  use  intended ;  it  is 
allowing  an  act  to  be  done  nuno  pro  tune  in  furtherance  of  right  and 
justice,  as  courts  sometimes  do,  curing  a  defect  of  form  which  the 
law-making  power  has  a  large  discretion  to  do  and  frequently  and 
habitually  does. 

It  has  been  suggested  to  this  Commission  rather  than  gravely  ar 
gued,  that  this  act  as  well  as  the  other  act  of  the  State  of  Florida  is 
to  be  considered  in  some  sense  as  an  ex  post  facto  law.  I  submit  to 
this  tribunal  that  neither  of  these  laws  comes  within  the  definition 
of  ex  post  facto  laws.  They  are  restrospective  and  retroactive  but 
not  ex  post  facto  laws.  It  certainly  will  not  bo  necessary  for  me  to  do 
more  than  to  refer  the  Commission  to  what  is  said  upon  that  subject 
by  Mr.  Justice  Chase  in  3  Dallas,  in  the  celebrated  case  of  Calder  vs. 
Bull,  more  particularly  to  what  he  says  on  the  three  hundred  and 
ninetieth  page: 

I  will  state  what  laws  I  consider  ex  post  facto  laws,  within  the  words  and  the  in 
tent,  of  the  prohibition.  First.  Every  law  that  makes  an  action  done  before  the 
passing  of  the  law,  and  which  was  innocent  when  done,  criminal :  and  punishes 
such  action.  Second.  Every  law  that  aggravates  a  crime,  or  makes  it  greater  than 
it  was  when  committed. 

The  PEESIDENT.  Mr.  Green,  it  is  hardly  necessary  to  cite  au 
thorities  to  us  that  that  is  not  an  ex  post  facto  law  within  the  meaning 
of  the  Constitution. 

Mr.  GEEEN.  I  am  very  happy  to  be  relieved  from  further  discus 
sion  of  the  character  of  these  legislative  acts. 

The  PEESIDENT.  I  do  not  suppose  anybody  iu  the  Commission  has 
any  doubt  about  that. 

Mr.  GEEEN.  Then  the  next  piece  of  evidence  is  the  actual  can 
vass  on  file  in  the  secretary  of  state's  office,  showing  in  detail  the 
votes  of  the  several  counties  and  the  election  of  the  Tildeu  electors. 
Superadded  to  all  this  we  submit  to  the  Commission,  that  even  under 
the  order  which  was  read  to  us  this  morning,  in  the  light  of  the  gover 
nor's  certificate,  this  Commission  has  a  right  to  look  into  these  quo 
warranto  proceedings  with  a  view  of  seeing  what  they  are.  I  shall 
not  discuss  that ;  I  shall  simply  call  the  attention  of  the  Commission 
in  passing  to  the  fact  that  they  will  find  noted  on  the  brief  already 
handed  up  that  the  jurisdiction  of  the  circuit  court  of  the  State  of 
Florida  is  ample  and  full,  that  the  authorities  are  there  cited,  and  I 
beg  leave  to  ask  the  Commission  to  refer  to  them.  I  only  allude  to 
it  now  in  order  that  our  learued  friends  on  the  other  side  may  take 
notice  that  we  conceive  and  shall  insist  that  even  under  the  order  of  the 
Commission  read  to  us  this  morning,  by  virtue  of  the  governor's  cer 
tificate  which  is  the  commencement  of  return  No.  3,  this  Commission 
may  look  into  and  consider  the  quo  warranto  proceedings  and  their 
effect  upon  the  question  now  before  us. 

The  only  additional  authorities  that  we  desire  to  call  tho  attention 
of  the  Commission  to  on  the  subject  of  that  quo  warranto  are,  the  Com 
monwealth  vs.  Smith,  45  Pennsylvania  State  Beports,  page  59,  where 
Mr.  Justice  Woodward,  delivering  the  opinion  of  the  court,  held  this 
language : 

I  have  no  doubt  that  quo  warranto  brought  within  the  term  of  an  office  may  be 
well  tried  after  the  term  has  expired. 

And  to  the  case  of  Hunter  vs.  Chandler,  45  Missouri,  page  435,  where 
the  court  held  that  an  information  in  the  nature  of  a  quo  warranto  to 
try  the  right  to  a  public  office  may  be  tried  after  the  term  has  expired 
or  the  officer  holding  has  resigned,  if  the  information  was  filed  or  the 
proceedings  beguu  before  resignation  took  place  or  the  term  had  ex 
pired. 

The  sixth  class  of  evidence 

The  PEESIDENT.     One  hour  only  is  left  to  your  side. 

Mr.  GEEEN.  I  will  finish  in  a  moment.  Tho  sixth  class  of  evi 
dence  is  the  confirmatory  act  of  January  26,  Ib77.  I  shall  say  nothing 
on  that  subject,  except  to  ask  the  attention  of  the  tribunal  to  what 
is  stated  on  the  brief  which  we  shall  hand  up. 

Now,  if  the  Commission  please,  we  rest  here  upon  the  testimony 
before  you,  and  we  humbly  submit  to  the  tribunal  that  even  upon 


that  testimony,  meager  as  it  is  contended  to  be,  there  is  but  one  proper 
conclusion  to  be  arrived  at,  namely,  that  this  voice  of  the  State  of 
Florida  which  in  uttered  not  only  by  its  executive  and  legislative, 
but  by  its  judicial  departments,  shall  be  respected,  and  that  this 
Commission  cannot  come  to  any  other  determination  than  that  the 
vote  of  the  State  of  Florida  is  truly  contained  in  the  returns  2  and  3, 
and  is  not  correctly  returned  in  the  return  No.  1. 

No  one  can  be  more  aware  than  I  am  how  inadequately  I  have  en 
deavored  to  rise  to  the  height  of  this  great  argument.  If  I  have 
failed  to  convince  your  judgments  as  judges,  I  shall  not  appeal  to 
your  patriotism  as  statesmen;  but  here  in  this  place  consecrated  by 
the  memories  of  those  early  senatorial  conflicts  which  resulted  so 
often  in  the  preservation  of  the  Union  and  the  maintenance  of  the 
Constitution,  as  well  as  by  the  recollection  of  tho  decisions  of  the 
most  august  tribunal  upon  earth  which  is  accustomed  here  to  assem 
ble  in  favor  of  human  freedom  and  of  human  rights  ;  in  the  name  of 
the  American  people ;  in  tho  name  of  that  Constitution  which  we  all 
have  sworn  to  uphold  and  maintain;  in  the  name  of  that  Union  to 
form  and  perpetuate  which  the  Constitution  was  framed,  and  of  that 
liberty  which  is  at  once  the  origin  and  the  result  of  that  Union;  not 
as  a  partisan ;  not  as  an  advocate  of  Mr.  Tilden  or  Mr.  Hendricks  ; 
nor  yet  as  an  opponent  of  Mr.  Hayes  or  Mr.  Wheeler,  but  as  an  Amer 
ican' citizen,  speaking  to  American  citizens,  I  demand  your  judgment 
for  the  right. 

The  PEESIDENT.    We  will  now  hear  the  other  side. 

Mr.  SHELLAI3AEGEE.  Mr.  President  and  gentlemen  of  the  Com 
mission,  this  morning  before  I  knew  how  thoroughly  all  that  part  of 
the  papers  that  were  laid  before  this  Commission,  which  relate  to 
those  matters  occurring  subsequently  to  the  date  of  the  electoral 
vote,  had  been  disposed  of  by  your  order,  I  had  arranged  to  speak  a 
very  few  minutes  in  regard  to  those  matters — their  competency  in 
this  case.  Since  I  came  into  court  and  heard  the  decision  of  the 
Commission  excluding  the  offer  of  testimony  touching  the  date  of 
the  service  of  process  in  the  quo  ivarmnto  case,  all  that  part  of  the 
case  of  Florida  which  I  had  proposed  to  discuss  seems  to  me  to  be 
thoroughly  disposed  of  and  snch  discussion  rendered  unnecessary. 
It  is  only  because  on  the  other  side  discussion  has  been  indulged  in 
with  regard  to  the  effect  of  matters  subsequent  to  the  electoral  vote 
that  I  venture  to  do  what  I  would  not  otherwise  do,  make  some  few 
remarks  in  regard  to  the  legal  values  of  those  matters  that  follow  in 
point  of  time  the  date  of  that  vote. 

It  will  be  observed  by  reading  what  has  been  here  called  certificate 
No.  3  that  there  can  reasonably  be  no  possible  claim  that  the  record 
iu  the  proceedings  in  quo  warranto  is  in  any  sense  or  way  before  this 
Commission.  Tho  only  papers  before  the  Commission  are  those  which 
were  submitted  to  the  Commission  by  tho  President  of  the  Senate  or 
submitted  to  the  Houses  and  thence  here.  Iu  those  papers,  thus  sub 
mitted,  there  is  but  one  allusion  to  this  proceediugiu  quo  warranto, and 
that  is  whore  the  governor,  Drew,  states  that — 

Iu  a  proceeding  on  the  part  of  the  State  of  Florida,  by  information  iu  the  nature 
of  quo  warranto,  wherein  the  said  Kobert  Bullock,  Robert  B.  Hilton,  Wilkinson 
Call,  and  James  E.  Yoiige  were  relators  and  Charles  II.  Pearce,  Frederick  C. 
Humphreys,  William  H.  Holden,  and  Thomas  W.  Long  were  respondents,  the 
circuit  court  of  this  State  for  the  second  judicial  circuit,  after  full  consideration  of 
the  law  and  the  proofs  produced  on  behalf  of  the  parties  respectively,  by  its  .judg 
ment  determined  that  said  relators  were,  at  said  election,  in  fact  aud  law,  elected 
such  electors  as  against  the  said  respondents  aud  all  other  persona. 

That  being  the  only  thing  that  is  before  this  Commission,  it  will 
not  be  claimed  I  think,  even  on  the  other  side,  that  there  is  any  evi 
dence  in  the  record  before  this  body  that  any  judgment  in  quo  war 
ranto  was  ever  pronounced.  The  governor  cannot  make  you  acquainted 
with  the  existence  of  the  record  in  that  way.  The  action  of  the  Com 
mission  in  excluding  that  manuscript  copy  of  the  record  of  such 
judgment  tendered  as  evidence — in  moreover  excluding  all  evidence 
about  the  date  of  service  of  process  taken  iu  connection  with  all  else 
which  has  transpired — makes  it  entirely  and  utterly  certain  that  we 
have  reached  ti  stage  in  the  case  where  at  least  that  proceeding  and 
judgment  iu  quo  warranto  are  excluded.  So  too  in  regard  to  the  certifi 
cates  No.  2  and  No.  3.  These  are,  as  wo  regard  the  matter,  aud  for  pre 
cisely  the  same  reasons  which  exclude  the  quo  warranto  case,  now  ex 
cluded  by  the  order  that  has  already  been  made.  Still,  since  discussion 
by  the  other  side  iu  regard  to  the  effect  of  these  papers,  Nos.  2  aud  3, 
has  been  indulged  in,  I  desire  to  make  a  few  statements  in  the  way 
of  mere  propositions  rather  than  of  extended  argument,  in  regard  to 
the  whole  matter  of  the  legal  effect  upon  the  electoral  vote  of  trans 
actions  of  tho  State  functionaries  occurring  after  the  date  of  such 
vote. 

Now  I  state  my  foundation  proposition  in  regard  to  all  these  post 
election  matters — whether  it  be  the  mandamus,  the  legislation  of  Jan 
uary,  the  quo  warranto,  the  canvass  by  the  improvised  returning  board, 
or  any  other  act  post  dating  tho  electoral  vote — in  these  words,  that 
"  this  power,  bestowed  by  the  Constitution  upon  the  State,  of  appoint 
ing  an  electoral  college  for  the  election  of  a  President  and  Vice-Pres- 
ideut  of  the  United  States  is  such,  in  its  very  nature,  and  by  the  ne 
cessities  of  the  case,  that  every  act  of  the  State  in  accomplishing  the 
'  appointment '  must  antedate  the  performance  of  that  one  single 
function  which  the  appointee  is  competent  to  discharge  under  the 
Constitution."  If  that  proposition  is  sound,  then  of  course  all  that 
the  gentlemen  say  iu  regard  to  tho  effect  of  the  decisions  of  the  courts 
in  determining  the  signification  of  their  own  statutes,  all  the  decisions 
which  have  been  referred  to  in  regard  to  the  obligation  of  all  Federal 


ELECTORAL  COMMISSION. 


47 


tribunals  to  follow  the  interpretation  which  the  State  courts  put  upon 
their  own  statutes,  loses  all  significance  in  this  case.  lu  other  words, 
if,  when  the  electoral  vote  of  a  State  has  once  been  cast  by  men  en 
dowed  with  every  muniment  of  title  to  the  office  of  elector  which 
the  laws  of  the  State  enabled  them  to  hold  at  the  date  when  they 
must  do  their  first  and  last  official  act,  the  power  of  the  States  to  ma 
nipulate  that  vote,  their  jurisdiction  over  it,  has  gone  a\%  ay  from  the 
States  to  the  nation,  then,  of  course,  these  acts  of  Florida  done  after 
the  electoral  vote,  in  the  frantic  effort  to  change  the  result  of  a  na 
tional  election,  lose  every  semblance  of  legal  significance. 

The  strongest  statement  I  have  heard  of  the  position  of  the  gen 
tlemen  on  the  other  side  in  regard  to  the  grounds  on  which  they  rest 
their  claim  of  right  in  the  States  to  handle  by  means  of  quo  warranto 
and  the  like  the  electoral  vote  after  it  has  gone  under  seal  to  the 
President  of  the  Senate  is  in  its  substance  this :  It  is,  they  say,  com 
petent  for  the  States,  not  to  appoint  electors  after  the  voting  day, 
not  to  qualify  them  after  the  voting  day,  but  competent  for  them 
thnmgh  their  courts,  after  the  voting  day  has  passed,  to  make  inter 
pretations  of  their  own  election  laws  which  shall  act  backward, 
shall  throw  light  on  and  biudingly  decide  the  question  who  of  rival 
claimants  were  the  true  functionaries  of  the  State  on  that  voting 
day,  and  thus  competent  for  the  States  to  settle  the  question  which 
of  the  two  rival  bodies  were  really  the  lawful  electors  of  the  State. 
That  is,  I  think,  about  the  substauce  of  the  strongest  statement  I 
have  seen  of  this  claim  so  zealously  pressed  by  the  other  side,  alleg 
ing  power  in  the  State  after  the  electoral  vote  is  cast  to  destroy  it, 
and  to  unseat  a  President  though  elected  by  electors  who  held  in 
favor  of  their  title  every  judgment,  determination,  and  certificate 
which  it  was  possible  for  the  State  to  bestow  under  her  existing  laws, 
before  the  time  when  the  electoral  vote  must  be  cast  and  sent  off,  un 
der  seal,  to  its  Federal  custody. 

Let  us  analyze  that  claim  fora  moment  and  see  if  it  is  not  utterly 
unsound.  The  Constitution  in  its  express  terms  limits  the  powers  of 
the  State  to  that  matter  which  it  has  denominated  tersely  by  the 
word  "appoint."  About  this  first  point  there  can  be  no  debate.  The 
utmost  power,  the  furthest,  reach  of  the  States  in  regard  to  this  mat 
ter  of  makiugaPresident  stops  when"  appointment"  stops;  nota  hair's 
breadth  beyond  that  anywhere  can  the  State  go  in  creating  your 
President  by  the  popular  vote.  Then  when  we  get  the  true  sense  of 
the  word  "  appoint"  we  know  the  boundary  of  the  powers  of  the  State 
in  this  regard. 

Now,  sirs,  what  gentleman  of  this  Commission,  so  learned  as  it  is 
in  all  these  great  constitutional  and  legal  ideas,  will  say  to  me, 
"  there  are  some  functions  in  the  nature  of  '  appointment ' — functions 
which  go  to  make  up  'appointment' — which  the  States  may  exer 
cise  after  the  office  has  passed  away  and  all  its  duties  are  done  for 
ever  ?"  Such  a  proposition  as  that  simply  reduces  the  Constitution 
and  this  whole  debate,  I  submit,  to  the  most  intense  and  unmitigated 
absurdity.  Therefore  every  act  of  the  State  in  the  way  of  exercis 
ing  power  must  be  "appointment,"  and  "appointment"  in  the  very 
nature  of  the  case  cannot  follow  the  day  when  the  first  and  the  last 
and  the  only  act  of  the  functionary  must,  by  the  Constitution  and 
law,  be  completely  and  forever  discharged.  Is  it  not  plain,  therefore, 
thus  far,  that  it  was  the  design  of  the  Constitution,  is  the  express 
requirement  of  Constitution,  that  every  act  of  the  State  being  all 
appointment,  and  appointment  only,  shall  antedate  the  vote? 

Mr.  Commissioner  THURMAN.  If  it  does  not  interrupt  you  let  me 
ask  this  :  Suppose  it  to  be  granted  that  every  act  which  constitutes 
the  appointment  must  bo  made  before  the  day  when  the  electors  cast 
their  votes,  does  it  follow  that  there  can  be  no  inquiry  afterward 
whether  any  appointment  was  made? 

Mr.  SHELLABARGER.  I  shall  come  to  that  in  a  moment,  and  I 
thank  the  Senator  and  member  of  the  Commission  for  the  sugges 
tion.  It  is  really  the  same  idea  to  which  I  alluded  when  I  under 
took  to  state  the  position  of  the  other  side  as  well  as  I  could,  as  to 
whether  acts  subsequently  to  the  day  of  voting  and  to  the  appoint 
ment  may  not  be  looked  to  as  throwing  light  or  deciding  upon  the 
matter  as  to  who  the  appointee  really  was,  as  made  on  the  day  of  the 
vote.  That  is  a  fair  question.  It  deserves  a  fair,  frank,  and  square 
answer,  and  I  shall  make  it  as  I  proceed,  as  well  as  I  can. 

First  of  all,  when  the  Constitution  is  confessed  to  design  that  the 
power  of  the  States  over  the  votes  shall  stop  at  the  moment  it  puts 
them  under  seal,  then  that  confession  involves  the  admission  that 
that  is  the  moment  at  which  the  States  must  have  completed  all  the 
scrutinies  and  trials  they  can  employ  in  adjudging  who  are  her  elect 
ors.  In  other  words,  if  an  elector  on  the  voting-day  is  endowed  with 
all  the  insignia  of  right,  with  all  the  apparent  title  of  office  that  can, 
according  to  the  then  existing  State  machinery,  be  held  on  that  day,  he 
?s,  to  every  possible  legal  intent,  as  against  the  States,  the  elector  both 
de  facto  and  dejure.  If  after  that  any  power  can  try  the  title  it  is  not 
the  State,  but  the  nation.  That  arises  out  of  the  very  nature  of  this 
sui  generis  thing  with  which  we  deal,  this  dual  Government  of  ours, 
having  no  likeness  anywhere  else  in  the  governments  of  the  world  or 
in  the  law-books  of  the  world.  It  is  a  case  where  two  sovereignties 
combine,  not  in  the  mere  process  of  making  an  election — for  it  is  more 
than  that — combine  their  powers  in  the  process  of  inaugurating  gov 
ernment  and  of  creating  the  executive  branch  of  a  powerful  people, 
in  transmitting  succession  ;  a  process  wherein  the  boundary-line  be 
tween  the  powers  of  the  two  sovereignties  is  carefully  marked  in  the 
Constitution.  That  boundary  is  at  the  point  whore  the  vote  is  sealed 


and  goes  to  the  capital.  At  that  time,  before  that  vote,  the  State 
must  have  done  her  last  act  in  adjudging  who  are  her  electors  and  be 
stowing  the  evidences  of  their  title. 

When  that  process  is  complete  on  the  part  of  the  State,  when  all  that 
she  is  permitted  to  transact  in  the  way  of  appointing  her  electors  has 
been  discharged  according — to  repeat  what  I  said  a  moment  ago,  and  I 
wish  to  state  it  with  the  utmost  care  about  my  words — when  that  polit 
ical  transaction  by  the  State  has  been  discharged  according  to  the  re 
quirements  of  the  law  of  the  State  as  it  existed  upon  the  day  of  vot 
ing,  then  the  power  of  the  State  over  the  subject-matter  is  an  ac 
complished  process  of  government  on  the  part  of  a  State,  and  the 
power  of  the  State  over  the  subject-matter  has  passed  forever  away. 
It  becomes  from  that  moment  on  a  matter  of  Federal  care  and  so 
licitude,  and  not  of  State.  In  other  words,  and  to  state  my  proposi 
tion  in  still  another  form,  every  part  of  the  machinery  of  a  State 
which  it  proposes  to  make  use  of  in  the  business  of  making  a  Fed 
eral  elector  must  be  placed  in  point  of  time  in  front  of  the  exercise 
of  the  office  of  an  elector.  No  part  of  it  can  be  placed  behind,  be 
cause  on  that  day  the  power  of  the  State  over  the  subject-matter  is 
completely  and  forever  ended. 

Now,  in  the  way  of  enforcing  this  view,  let  me  take  some  proposi 
tions  that  seem  to  me  to  be  exceedingly  conclusive  in  regard  to  it. 
In  the  first  place  take  the  common,  plain,  practical,  every-day,  non- 
lawyer  sense  of  the  thing,  and  how  does  it  look  then  ?  Everybody 
agrees  that  the  trial  of  the  matter  as  to  who  is  appointed  is  a,  part  of 
the  appointment  itself.  Therefore  I  concede  that  it  is  within  the  power 
of  the  State  to  try  the  title  of  her  electors.  She  can  try  it  by  quo 
ivarranto  ;  she  can  try  it  by  any  machinery  she  pleases.  It  is  within 
the  province  of  the  State  to  try  the  question  by  her  own  machinery 
as  to  whom  she  has  selected  to  cast  her  vote ;  but  if  she  makes  any 
part  of  that  machinery  up  in  such  a  way  that  the  trial  cannot  come 
until  after  the  office  is  performed,  then  she  must  content  herself  with 
such  scrutinies  as  she  has  arranged  in  advance  of  the  discharge  of 
the  function  of  the  elector.  How  would  an  act  of  a  Legislature  sound 
which  read:  "  I3e  it  enacted,  That  this  State  reserves  to  herself  the 
power  to  try  by  quo  warranto  who  were  her  Federal  electors  after  the 
time  when  they  are  compelled  to  cast  the  electoral  vote. 

Would  not  such  an  act  be,  on  its  very  face,  simply  a  monstrosity  ? 
Would  it  help  it  any  to  add  the  proviso:  "Provided,  That  somebody 
shall  start  the  quo  warranto  suit  before  the  vote  is  cast  ?;' 

Suppose  you  should  see  a  system  of  government  that  deliberately 
placed  any  part  of  the  t,  ial  or  "  contest "  of  an  election  to  an  office 
after  the  office  by  the  very  organic  law  must  have  been  performed 
and  passed  away  !  You  would  say,  would  you  not.  that  such  a  sys 
tem  was  simply  insane  ?  To  give  to  the  States  the  power  here  claimed 
would  be  not  only  this  degree  of  insanity,  but  would  also  enable 
the  States  to  contest  an  election  after  every  possible  function  of  the 
office  must  have  been  discharged,  and  also  it  places  this  contest  and 
destruction  of  the  vote  by  the  States  after  the  time  when  all  the  State's 
power  over  the  vote  is  carefully  withdrawn.  More  even  than  this ; 
it  enables  any  one  who  can  manipulate  the  courts  of  the  States  to 
render  an  election  by  the  people  impossible,  or,  at  best,  within  the 
mercy  of  the  courts.  Surely  such  is  not  the  insanity  of  the  Con 
stitution.  In  this  view,  therefore,  I  repeat,  that  the  States  must,  by 
the  very  nature  of  the  case,  place  their  election  machinery  for  test 
ing  or  determining,  whether  by  her  returning  boards,  or  by  courts 
in  quo  warranto,  or  in  whatever  tribunal  she  may  please,  the  question 
whom  she  has  selected  before  the'time  when  the  office  expires,  her 
powers  over  the  vote  have  ended  and  her  act  has  become  an  iuvesturo 
of  government  by  act  of  the  State. 

But  take  another  step.  Everybody  agrees— the  Constitution's  terms 
and  its  history  both  combine  to  make  everybody  agree — that  the 
reasons  why  the  Constitution  held  back  from  the  States  and  kept 
within  the  nation  the  power  to  fix  the  day  for  counting  the  vote, 
also  the  requirement  that  the  day  shall  be  the  same  in  all  the  States, 
also  the  requirement  that  the  vote  shall  bo  by  ballot  and  that  it  shall 
remain  under  seal  from  the  moment  of  its  casting  until  the  day  of  its 
counting — those  requirements  are  confessed  all  to  be  in  the  Consti 
tution  for  the  vital  purpose  of  rendering  it  impossible  for  the  States 
to  intrigue  after  they  knew  the  votes  of  sister  States  for  the  chang 
ing  of  the  result  of  the  election.  They  meant  that  no  post  hcec  judg 
ments,  no  political  intrigues,  no  subsidized  courts,  should  be  enabled 
to  destroy  the  votes  of  States  and  unseat  a  President  after  they  had 
found  out  just  how  many  votes  must  be  destroyed,  by  purchased 
judgments  in  quo  warranto,  in  order  to  unseat  a  President  elected  and 
even  inaugurated  according  to  all  the  forms  of  law.  And  here  let  it 
be  remembered  forever  that  in  order  to  unseat  Presidents  by  this  mod 
ern  plan  of  post-election  quo  warranto  it  is  not  necessary  that  any 
rival  electors  should  have  voted  on  the  election  day.  All  that  is 
needed  is  that  enough  quo  warrantos  shall  be  got  to  adjudge  bad 
enough  of  the  electors  of  the  successful  party  to  change  the  result. 

The  third  volume  of  Elliot's  Debates,  page  101,  Story  on  the  Con 
stitution,  section  1475,  and  every  other  commentator  on  that  subject 
state  the  reason  of  the  stopping  the  power  of  the  States  over  the 
votes  at  election  day,  sealing  them  up,  and  casting  of  them  on  the 
same  day  just  as  I  have  stated  it  now.  No  debate  is  possible  with  re 
gard  to  that  vital  object  or  about  that  being  the  design,  or  at  least 
the  leading  design,  of  these  provisions.  Now  what  will  be  the  effect 
upon  these  provisions  of  the  Constitution  of  suffering  the  States,  by 
judgment  in  quo  warranto  or  acts  of  legislation  or  any  other  act  de- 


48 


ELECTORAL  COMMISSION. 


Rtructive  of  a  State's  vote,  after  tliey  hare  found  out  how  their  sister- 
States  have  voted,  to  change  the  result,  by  plaeing  some  part  of  the 
machinery  of  the  State  for  contesting  this  election  after  the  election 
is  over,  and  all  power  over  the  subject  -matter  of  the  election  lias 
passed  over,  to  the  nation  ?  Plainly,  most  manifestly,  right  on  its  face, 
it,  completely  destroys  every  object  for  which  those  provisions  making 
the  voting-day  the  same  and  the  like  were  put  into  the  Constitution. 

Your  honors,  if  I,  in  my  own  State,  being  an  earnest  partisan,  after 
1  have  found  out  how  my  sister-States  have  voted  and  after  I  have 
learned  that  it  only  requires  say  nineteen  votes  to  be  destroyed  in 
order  to  change  the  presidential  election,  can  go  to  work  in  my  local 
nisi  prim  court  and  get  a  judgment  in  quo  warranto,  and  this  in  my 
own  name,  and  without  the  leave  of  my  State,  (as  is  done  in  Florida,) 
that  will  unseat  the  electors  of  my  State  and  unseat  a  President, 
then  I  have  turned  the  Government  into  a  farce  and  the  Constitution 
into  a  sham.  I  know  such  a  caricature  of  our  form  of  government  is 
revolting  to  every  mind  that  I  now  address;  and  yet  I  defy  the  inge 
nuity  of  counsel  to  devise  a  reply  which  will  show  that  these  oppor 
tunities  for  mischief,  nay,  sirs,  these  mischiefs  themselves,  will  not 
come,  if  you  sutler  the  determination  by  the  States  of  who  were  their 
electors  to  come  after  they  have  found  out  how  the  other  States  have 
voted. 

But  the  reply  is  made  to  that,  "We  commenced  our  quo  warranto 
before  the  vote  was  cast."  Pray,  gentlemen  of  the  Commission,  tell 
me  how  does  that  relieve  the  subject  of  its  difficulties?  It  puts  you 
just  in  this  position.  Mark,  you,  this  was  an  information  (and  so  ifc 
may  be  in  every  State  if  they  so  enact)  upon  the  part,  not  of  the 
State,  but  of  a  set  of  defeated  candidates.  It  therefore  puts  it  in  the 
power  of  every  individual  who  is  disappointed,  who  is  unhappy  abont 
results,  or  who  is  "enterprising,"  to  attack  and  destroy  the  title  to 
the  greatest  office  of  the  world,  and  to  precipitate  the  nation  in  revo- 
lution  and  unutterable  disaster.  The  mere  fact  that  such  a  one 
chooses  to  launch  such  a  speculative — a  private,  speculative,  or  ten 
tative  quo  warranto,  before  the  voting  is  done,  and  thus  putting  him 
self  iii  the  position  of  preparing  for  emergencies  after  he  finds  out 
how  his  sis'er  States  have  voted — putting  himself  in  the  position  of 
"commanding  the  situation,"  in  the  situation  of  taking  time  by  the 
forelock,  of  getting  hold  of  the  reins,  puts  him  in  the  position  of  de 
feating  and  defying  the  provisions  of  the  Constitution  setting  bounds 
to  the  power  of  the  States  over  the  votes,  thereby  causing  them  all  to 
be  trampled  down. 

All  this  is  to  be  done  by  the  simple  act  of  a  private  individual  in  a 
nisi  prim  court — in  a  partisan  court,  starting  a  suit  that  cannot  be 
tried  until  long  after  the  election  is  over — starting  a  suit  for  the  pur 
pose  of  holding  the  reins  and  commanding  the  situation.  How  does 
that  launching  of  a  suit  before  the  vote  relieve  the  subject  of  its  diffi 
culties?  Not  in  the  slightest  degree.  I  submit  with  the  utmost 
deference  both  to  the  learned  counsel  on  the  other  side  and  to  the 
Commission,  not  the  slightest.  You  cannot  travel  an  inch  in  that 
direction  without  destroying  the  guarantees  that  the  Constitution  has 
so  wisely  furnished  whereby  a  presidential  election  is  an  accomplished 
fact  so  far  as  the  States  are  concerned  contemporaneously  throughout 
the  Union.  Was  that  not  wise— do  not  the  debates  on  the  Constitu 
tion  show  yon  the  sagacity  and  the  marvelous  foresight  of  your  fath 
ers  when  they  made  it  so  that  it  was  impossible  for  the  States  to  find 
out ,  in  advance  of  their  own  action,  how  their  sisters  had  voted  ?  Do 
not  the  perils  of  this  hour, nay,  the  appalling  dangers  which  now  we 
trust  in  God  are  passing  away,  in  which  we  see  these  attempts  to 
overthrow  the  votes  of  the  States  because  so  few  overthrown  will 
change  the  result,  impress  us  anew  with  the  wisdom  of  the  provision 
which  requires  all  the  States  to  take  off  all  their  hands  at  the  same 
hour  from  all  presidential  votes  ? 

But,  gentlemen  of  the  Commission,  there  is  another  part  of  this 
great  theme  that  is  equally  conclusive;  and  indeed  I  have  not  fol 
lowed  the  points  that  I  had  marked  in  ruy  brief  at  all.  I  have  gone 
over  as  many  of  them  as  I  care  to  go  over  now,  except  the  one  that  I 
now  come  to. 

In  the  very  able  argument  that  was  offered  by  Mr.  O'Conor  he 
stated  what  seemed  to  me  to  be  the  strongest  proposition  on  his 
side  that  ho  did  state  at  all.  It  was  stated  in  reply  to  our  proposi 
tion  that  the  elector  Avho  on  the  election  day  was  endowed  with  all 
the  insignia  of  office  which  the  State  laws  enabled  him  to  hold  on  that 
day,  and  who  thus  endowed  cast  the  vote  of  the  State,  that  such  an  offi 
cer,  so  endowed,  had  iu/«c<  and  in  law  then  and  thereby  accomplixlied 
an  act  of  government;  that  whether  he  were  an  officer  dejure  or  de facto, 
still  being  upon  that  day  so  endowed,  so  IN  OFFICE,  so  acting  in  the  ac 
tual  occupancy  of -office,  with  all  apparent  right,  that  in  such  case  such 
act  constituted  an  act  of  government,  that  thereby  the  act  of  the  State 
was  accomplished  in  law— it  was  government,  not  mere  election,  but 
f/onrnment— government  inaugurated,  accomplished,  endowed.  That 
was  our  proposition,  and  that,  therefore,  whether  dejure  or  dc  facto  an 
elector,  provided  he  had  all  the  evidences  and  insignia  of  ri«-ht  the 
act  was  good  as  the  act  of  the  State,  and  I  stand  by  that.  But  it  was 
met  by  what,  I  say,  was  the  strongest  position  that  can  betaken  agai  nst 
it,  and  it  was  about  this,  as  near  as  I  can  state  it.  I  shall  be  pardoned 
if  I  state  it  with  less  strength  than  it  was  stated  by  the  distinguished 
author  of  it.  It  was  about  this : 

"  You  are  mistaken,  gentlemen ;  that  is  not  an  act  of  government ;  it 
is  not  an  exercise  of  official  power  by  one  in  office,  which,  if  not  sus 
tained,  if  stricken  down,  would  hurt  some  third  person,  some  public 


some  other  person."  "  That  is  not  your  case,"  says  Mr.  O'Conor,  "but 
this  is  your  case  :  your  case  is  that  of  an  attempted  vote,  that  vote  by  a 
man  having  no  power  to  cast  it,  and  it  is  arrested  on  its  way  to  Gov 
ernment  in  transitu;  it  is  arrested  by  our  process  in  the  nature  of  a 
quo  warranto,  and  therefore  it  is  not  at  all  the  case  of  a  dc  facto  exer 
cise  of  authority." 

One  of  the  errors  of  that  position,  the  one  that  strikes  me  as  the 
fatal  one,  and  I  submit  it  with  the  utmost  deference,  is  that  it  mis 
states  the  nature  of  the  legal  characteristics  of  this  business  of  a 
State  casting  its  vote  by  its  electors.  That  is  government,  bless  you ; 
that  is  more  than  an  election  ;  it  is  government.  It  is  the  last  act  of 
the  State  in  exercising  its  part  of  the  creation  of  a  President.  It  is, 
therefore,  when  done,  government  accomplished,  irrevocably  done. 

My  friend's  position  is,  if  I  conceive  the  truth  of  this  point,  utterly 
fallacious  in  that  it  assumes  a  legal  status  that  does  not  belong  to  the 
case  you  are  dealing  with,  a  case  where  a  State  has  endowed  her 
elector  with  all  the  right  which  her  machinery,  enables  that  elector  to 
hold  on  the  day  that  he  must  rote.  He  has  it  all ;  every  appearance 
of  right.  Now  the  law  says,  the  Constitution  says,  the  necessities  of 
the  case  say  that  a  man  thins  endowed  on  that  day  when  the  act  must 
be  accomplished,  if  ever,  can  perform  an  act  of  government,  and  ho 
does  do  it.  Therefore  the  public  is  hurt,  the  community  is  hurt,  your 
country  is  hurt,  the  Constitution,  all  its  designs  are  hurt,  if  you  strike 
down  an  act  of  government  performed  and  forever  performed  on  the 
only  day  that  it  could  be  performed,  by  men  who  had  every  insignia 
of  right  that  the  State  laws  enabled  them  to  have  on  the  day  when 
it  was  performed.  Therefore  it  is  the  act  of  a  man  de  facto,  an  officer 
whether  de  jure  so  or  not,  and  his  act  is  government  accomplished 
when  it  is  performed  under  all  the  apparent  rights  of  office  that  our 
electors  were  surrounded  with. 

In  enforcement  of  that  view,  suffer  me  to  call  your  attention  to 
some  language  in  the  case  of  Potter  vs.  Bobbins,  in  Clarke  and  Hall's 
Contested  Elections,  pages  900  and  901.  I  ought  to  say  in  regard  to 
this  case  what  if  I  am  in  error  about  the  very  learned'  gentlemen  of 
the  Commission  will  correct  me,  that  I  understand  that  ever  since  its 
announcement  it  has  been  admitted  and  held  to  be,  in  so  far  as  it  goes 
in  the  way  of  exposition,  the  law  of  the  Constitution  upon  the  sub- 
ect  to  which  it  relates.  It  was  pronounced  in  the  year  1834  by  the 
Senate  of  the  United  States,  in  one  of  the  most  celebrated  debates 
that  ever  occurred,  so  far  as  I  know,  in  the  history  of  the  Senate,  in 
regard  to  the  question  of  a  right  to  a  seat  in  the  Senate.  Among  the, 
men  who  debated  it  and  who  sustained  the  position  that  is  hero 
stated  that  I  am  abont  to  read,  you  will  find  such  names  as  these : 
Bell,  Calhoun,  Clay,  Clayton, .Ewiug,  Frelinghuysen,Kent,  Mangum, 
Poindexter,  Preston,  Webster,  and  others,  embracing  of  course  some 
of  the  most  illustrious  names  of  our  country,  nearly  all  of  whom  par 
ticipated  in  this  debate  and  who  voted  to  sustain  the  proposition  that 
I  am  about  to  read.  It  was  a  case  where  the  Legislature  of  Rhode 
Island,  after  it  had  elected  Mr.  Kobbins  to  the  Senate,  undertook  at 
a  subsequent  meeting  of  the  Legislature  to  declare  that  election  worth 
less,  to  take  it  back,  to  place  in  the  place  of  Mr.  Robbins  Mr.  Potter, 
whom  they  elected  six  months  after  they  had  elected  Mr.  Robbins. 
The  report  in  the  case  discusses  the  power  of  the  State  to  withdraw 
the  act  of  election  on  the  one  hand  and  the  power  of  the  Senate  on 
the  other  hand  to  look  into  the  question  whether  or  not  some  mem 
bers  of  that,  Legislature  were  or  were  not  entitled  to  vote.  Upon  the 
question  of  the  power  of  the  State  to  take  back  any  part  of  its  act  in 
creating  a  Senator,  and  also  the  question  of  the  power  of  the  Senate 
to  look  into  the  question  of  the  individual  right  of  members  to  vote  in 
the  body  that  composed  the  Legislature,  the  report  in  that  case  used 
language  that  I  now  read : 

In  the  performance  of  this  duty,  the  State  acts  in  its  highest  sovereign  capacity, 
and  the  causes  which  would  render  the  election  of  a  Senator  void,  must  be  such — 

And  I  call  atteut'on  to  this  language  because  it  is  the  most  terse, 
the  best  stated  that  I  have  seen  on  the  subject — 

as  would  destroy  the  validity  of  all  laws  enacted  by  the  body  by  which  the  Sena 
tor  was  chosen. 

It  must  go  to  the  destruction  of  the  body  itself,  and  cannot  inquire 
into  the  eligibility  of  the  persons  that  made  the  election.  Now,  omit 
ting  some,  1  read  this : 

But  where  the  sovereign  will  of  the  State, is  made  known  through  its  Leiasla- 
tnre,  and  consummated  by  its  proper  otticial  functionaries  in  duo  form,  it  would  be 
a  dangerous  exertion  of  povyor  to  look  behind  tho  Commission  for  defects  in  the 
component  parts  of  the  Legislature,  or  into  the  peculiar  organization  of  tho  body 
for  reasons  to  justify  tiio  Senate  in  declaring  its  acts  absolutely  null  and  void. 
Such  a  power,  if  carried  to  its  legitimate  extent,  would  subject  tho  entire  scope  of 
State  legislation  to  be  overruled  by  our  decision,  and  oven  the  right  of  suffrage  of 
individual  members  of  tho  Legislature,  whose  elections  were  contested,  might  be 
set  aside.  It  would  also  lead  to  investigations  into  the  motives  of  members  in 
casting  their  votes,  for  the  purpose  of  establishing  a  charge  of  bribery  or  corrup 
tion  in  particular  cases.  These  matters,  your  coimnitteo  think,  properly  belong  to 
the  tribunals  of  the  State,  and  cannot  constitute  tho  basis  on  which  the  Senate 
could,  without  an  infringement  of  State  sovereignty,  cl  lim  the  right  to  declare  tho 
election  of  a  Senator  void,  who  possessed  tho  requisite  qualifications  and  was 
chosen  according  to  the  forms  of  law  and  the  Constitution. 

What  now  is  the  application  of  that  to  this  occasion  ?  Manifestly 
this :  The  closest  analogy  which  we  have  at  all  under  our  system  of 
government  to  this  choice  by  the  States  of  electors  is  tho  one  I  have 
just  read  from,  is  the  choice  of  a  Senator.  The  language  of  the  Con 
stitution  in  regard  to  the  election  of  Senators  is  that  they  shall  be 
chosen  by  the  Legislature,  and  that  that  choice  shall  be  in  such  man- 


ELECTORAL  COMMISSION. 


49 


ner  as  the  Legislature  shall  prescribe ;  almost  the  precise  words  of  the 
Constitution  in  regard  to  the  manner  of  choosing  electors. 

It  is  true  that  the  Senate  itself,  having  the  largo,  unlimited  range 
of  vision  that  belongs  to  courts  when  trying  quo  warrantos,  having  the 
power  of  trying  the  election  of  its  members,  cannot  without  invading 
the  rights  of  the  States  go  behind  the  action  of  the  legally  constituted 
Legislature  for  the  purpose  of  inquiring  into  the  eligibility  of  the 
men  who  created  the  appointment,  cannot  strike  down  that  act  of  the 
Legislature  except  to  adopt  the  words  of  this  report,  for  causes  that 
would  render  the  laws  passed  by  the  Legislature  invalid.  If  that  be 
so,  I  say  in  regard  to  this  limitation  on  the  powers  of  the  Senate  on 
one  side  to  overthrow  the  action  of  the  States  in  making  the  election, 
and  also  on  the  other  side  limiting  the  powers  of  the  States  to  take 
back  an  election  that  is  accomplished  according  to  the  forms  of  law, 
if  that  be  true  in  this  case,  as  it  is  true,  then  it  must  be  true,  I  sub 
mit,  utterly  true  beyond  fair  room  for  debate,  that  when  the  States, 
whose  power  is  limited  to  a  single  act  of  appointing  according  to  the 
requirements  of  the  Legislature  electors,  have  made  that  appoint 
ment,  have  made  it  on  the  only  day  that  they  could,  have  made  it  by 
the  men  who  held  on  that  day  every  vestige  and  indication  of  right 
which  it  was  possible  to  hold  on  the  day  of  election  ;  if  it  be  true,  I 
say,  that  such  is  the  limitation  as  between  the  Senate  and  its  mem 
bers,  how  much  more  thoroughly  true  must  it  be  that  this  body 
having  no  power  but  the  power  to  count — I  care  not  now  how  latitu- 
dinary  you  may  make  that  word  signify  for  the  purposes  of  this  Com- 
nlission,  still  it  is  but  a  power  to  count — how  much  more  true  must 
it  be  that  under  your  power  to  count  you  cannot  assume  that  these 
officers  appointed  according  to  the  form  of  every  law  that  existed  on 
election  day,  holding  all  the  authority  that  the  Legislature  enabled 
them  to  hold  on  that  day,  certified  by  every  certihcate  that  it  was 
possible  to  hold  under  the  laws  of  the  States  on  that  day,  that  you 
with  no  other  power  than  the  power  to  count  shall  go  back  and  de 
stroy  by  quo  warrantos  or  anything  else  that  act  after  the  accomplish 
ment  of  the  election  of  a  President,  and  thus  throw  away,  destroy, 
overthrow  an  election  accomplished  according  to  all  the  forms  of  law  ? 

Gentlemen,  I  say  without  exaggeration  and  without  falling  into 
any  extravagance  that  comes  from  heat  of  debate,  that  it  is  inevita 
bly  true  that  if  you  suffer  men  to  start  away  down  in  the  piepoudre 
courts  of  our  country  on  their  own  private  motion,  quo  warrantos,  or 
bills  in  the  Legislature,  or  any  act  that  shall  unseat  the  President  of 
the  United  States  before  the  day  of  counting,  you  can  unseat  him 
after.  I  challenge  gentlemen  to  show  where  that  rule  of  law  is  that 
shall  say  "  thus  far  thou  mayest  go,  and  no  further."  If  you  can 
unseat  Mr.  Tilden  to-day,  he  being  the  President,  by  a  judgment  of 
a  republican  court  in  my  republican  State,  you  can  do  it  after  he  is 
in  office,  for  there  is  no  limitation  upon  the  power,  and  there  is  no 
principle  that  compels  the  courts  that  have  jurisdiction  in  quo  war- 
ranto  and  whose  case  is  simply  started  before  the  vote,  to  make  their 
decision  after  the  count  in  February,  no  principle  that  compels  them 
to  make  their  decision  before  the  inauguration  day  ;  and  you  establish 
that  rule  and  you  have  at  once  put  it  in  the  power  of  the  States,  as  I 
have  already  remarked,  to  overthrow  the  Constitution,  to  destroy  it  in 
this  its  very  citadel,  and  to  end  the  life  of  the  State. 

I  thank  you,  gentlemen,  for  the  very  singular  kindness  with  which  I 
have  been  listened  to. 

Mr.  EVARTS.  Mr.  President  and  gentlemen  of  the  Commission, 
the  wisdom  of  the  method  and  order  of  this  examination  adopted  by 
the  Commission  has  fully  proved  itself  in  its  execution.  The  intelli 
gent  and  experienced  and  learned  minds  acting  in  the  Commis 
sion  saw  at  once  that  the  decisive  lines  of  the  controversy  were  to 
be  determined  upon  the  limitation  of  their  powers  and  the  limit 
ation  of  the  subjects  and  the  means  for  producing  those  subjects 
upon  which  those  powers  were  to  act.  In  the  full  discussion  accorded 
to  counsel,  and  in  the  deliberations  of  the  Commission  extended  dur 
ing  the  periods  of  their  private  session,  the  result  is  disclosed  in  this 
form  and  to  this  effect,  that  this  Commission  will  receive  no  evidence 
and  will  merely  inspect  the  certificates  that  the  Constitution  and  the 
laws  of  the  United  States  have  authorized  for  transmission,  and  as 
such  received  by  the  President  of  the  Senate,  have  been  opened  to 
the  two  Houses,  save  in  one  particular,  that  in  aiding  them  to  in 
spect  these  certificates,  and  within  the  limits  of  the  information  there 
disclosed,  determine  and  advise  the  two  Houses  of  Congress  how  many 
and  what  votes  shall  be  counted  for  the  State  of  Florida,  it  will  re 
ceive  evidence  touching  the  eligibility  of  one  of  the  named  electors 
appointed.  In  that  determination  I  do  not  understand  the  Commis 
sion  to  have  overpassed  the  question,  what  the  effect  is  as  to  the  ac 
ceptance  or  rejection  of  a  vote  thus  challenged  for  ineligibility,  but 
to  h»ve  decided  that  on  that  point  they  will  receive  the  evidence  that 
may  be  offered  in  order  that  they  may  determine  in  the  first  place 
whether  upon  the  facts  the  exception  taken  to  Humphreys's  vote  is 
maintainable  ;  and  secondly,  whether,  if  maintainable  and  maintained 
upon  the  facts,  the  methods  of  the  Constitution  and  the  duty  now 
presently  being  discharged,  permit  of  any  rejection  from  the  certifi 
cated  vote  transmitted  and  opened  of  the  vote  of  an  elector  upon 
that  ground. 

I  will  first  deal  with  the  question  of  fact.  I  call  the  attention  of 
the  Commission  to  the  proposition  that  the  point  of  exception  under 
the  Constitution,  the  matter  proposed  of  disqualification  under  the 
Constitution,  is  simply  this :  that  at  the  time  of  his  appointment  he 
filled  an  office  of  honor  or  emolument  under  the  United  States.  I 


except  to  the  mode  of  proof  as  to  its  effect  when  it  stops  where  it 
did,  that  was  used  by  the  excepting  party  to  his  qualification,  that 
they  used  a  commission  of  the  date  of  1872  and  proved  no  occupa 
tion  of  the  office  later  than  August,  187G.  I  understand  that  when 
the  certificate  of  a  governor  and  the  vote  of  a  State  is  in  the  very 
process  of  counting  to  be  questioned  in  the  presence  of  the  two 
Houses  of  Congress  no  exception  that  shall  proceed  for  its  prosperity 
upon  the  power  of  the  exceptor  to  find  an  old  commission  and  then 
take  advantage  of  the  unreadiness  or  want  of  notice  that  the  excep 
tion  was  to  be  raised  to  argue  from  the  ancient  case  that  all  things 
remain  as  they  were  until  contradicted.  The  danger  of  that  proposi 
tion  in  a  transaction  of  this  nature  can  be  at  once  discerned.  Let 
whosoever  take  up  the  burden  of  proving  that  on  the  7th  day  of  No 
vember  one  of  these  certified  electors  having  the  warrant  of  the  seal 
and  authority  of  the  State  as  having  been  elected  was  Disqualified 
for  that  election,  he  must  prove  it  down  to  and  as  of  that  day.  But 
when  the  proof  stops  there,  the  neighbor,  the  friend,  the  lawyer 
whose  dealings  are  to  fill  out  with  living  effect  the  dead  commission, 
stops  with  his  necessary  proof  in  the  month  of  August,  you  have 
failed  to  find  that  actual  possession  and  use  of  the  office,  even  pre 
sumptively,  beyond  the  date,  for  no  reason  was  given  in  the  wi1  ness's 
evidence  why  his  knowledge  stopped  there  unless  the  action  of  the 
officer  stopped  there. 

You  must  dispose  of  this  question  of  fact  upon  some  method  of 
strictness  suitable  to  the  nature  of  the  transaction  in  which  you  are 
engaged  and  suitable  to  the  exercise  of  the  duty,  not  under  an 
organized  and  arranged  commission  like  this,  but  as  an  ordinary 
discharge  of  constitutional  duty  by  the  two  Houses  in  their  joint 
convention  ;  and  I  submit  that  there  is  no  claim,  the  proof  there  stop 
ping,  that  it  is  to  be  regarded  as  a  challenge  which  requires  the  fact 
that  he  was  in  office  on  the  7th  of  November  to  be  presumed. 

I  now  come  to  the  counter-proof,  supposing  that  that  step  is  passed  ; 
•and  the  counter-proof,  not  challenged  in  form,  comes  to  this,  that 
early  in  October  Humphreys  resigned  in  writing  his  office  to  the  cir 
cuit  judge  of  that  circuit  and  received  from  him  an  acceptance  of 
the  resignation,  such  judge  proceeding  to  instruct  him  to  turn  over 
whatever  of  public  means  for  the  exercise  of  the  office  he  held  to  the 
collector  of  customs  who  would  discharge  the  office,  such  judge  at 
the  same  time  advising  the  collector  of  the  accepted  resignation  and 
of  the  devolution  of  the  office  upon  him,  followed  by  the  evidence  of 
Mr.  Humphreys  that  thereafter,  from  the  early  day  in  October,  he 
himself  discharged  no  part  of  its  duties  and  held  out  no  professions  of 
capacity  to  discharge  them,  and  moreover  that  the  collector  from 
that  time  thenceforth  until  after  the  period  of  inquiry,  the  7th  of 
November,  and  perhaps  till  now,  occupied  the  office  and  discharged 
its  duties. 

Upon  this  plenary  and  apparently  conclusive  proof  an  objection  is 
made  that  as  the  appointment  was  made  by  the  circuit  court,  the 
resignation  could  only  be  made  to  and  received  by  the  court  in  ses 
sion,  and  that  no  such  session  having  taken  place,  within  the  mean 
ing  of  the  Constitution  of  the  United  States  which  prescribes  as  a 
qualification  for  an  elector  that  he  should  not  exercise  an  office  under 
the  United  States,  Mr.  Humphreys  was  an  officer  of  the  United  States 
on  the  7th  day  of  November.  Now,  this  office  had  no  term  whatever 
prescribed  by  statute  ;  it  had  no  enlargement  by  necessity  or  by  pre 
scription  beyond  the  present  will  of  resignation.  The  office  itself 
was  secured  for  the  public  by  no  clause  requiring  it  to  be  occupied 
and  exercised  until  a  successor  was  qualified.  There  was  no  need  of 
the  office  being  refilled.  The  act  took  care  of  the  service  by  pre 
scribing  that  when  there  was  no  officer  of  this  kind  the  collector 
should  discharge  the  duty  of  this  act  of  Congress. 

Upon  that  state  of  law,  in  view  of  the  existing  legislation  of  Con 
gress  on  the  subject  of  resignations  to  which  I  shall  call  your  atten 
tion,  is  it  to  be  pretended  for  a  moment  that  there  was  any  power  to 
hold  an  occupant  of  that  office  to  the  performance  of  its  duties  one 
moment  beyond  his  will  1  Can  it  be  pretended  that,  beyond  the 
necessity  of  the  conveyance  of  the  resignation  as  determining  that 
will,  executed  and  placed  in  tlto  power  of  the  authority  thus  made 
its  depositary,  he  could  be  held  under  any  law,  if  there  had  been  any, 
or  his  sureties  under  any  law  or  jurisprudence  enforcing  the  obliga 
tions  of  sureties,  for  the  failure  to  perform  acts  or  to  do  duties  after 
his  office  was  thus  resigned  ? 

Besides,  look  at  the  nature  of  this  disqualification  as  proposed  to 
the  voters  in  the  State  of  Florida  and  those,  who  produce  the  candi 
dates  and  name  them  to  be  voted  for.  Is  the  title,  the  paper-title 
back  in  the  archives  of  courts  or  offices,  to  be  searched  for,  by  elect 
ors  in  determining  whether  their  fellow-citizen,  Mr.  Humphreys,  shall 
receive  their  votes  ?  They  know  who  are  in  the  possession  and  in  the 
exercise  of  offices  under  the  Government  of  the  United  States,  by  their 
action,  by  their  public  possession,  and  exercise  of  the  office ;  and  now 
when  Mr.  Humphreys,  to  the  knowledge  of  his  neighbors  in  Pensacola 
and  the  community  throughout  the  State  of  Florida,  is  out  of  his 
office  and  its  constant  duties  are  performed  by  another  from  and  after 
the  date  in  October,  are  they  to  lose  the  effect  of  their  suffrage  by  the 
production  of  a  certificate  that  in  1872  he  held  the  office  ?  I  think 
not. 

I  have  said  that  I  would  ask  your  attention  to  the  only  provisions 
in  the  statutes  of  the  United  States  that  bring  their  bearing  upon 
the  question  of  resignation  ;  and  they  are  found  at  three  pages  of 
this  volume,  233,  251,  and  277, 


50 


ELECTORAL  COMMISSION. 


Mr.  Commissioner  ABBOTT.    Are  you  quoting  by  pages  or  sections  ? 

Mr.  EVARTS.    Pages. 

Mr.  Commissioner  ABBOTT.    The  Revised  Statutes? 

Mr.  EVARTS.  Yes.  They  relate  only  to  resignations  of  military 
officers  or  enlisted  soldiers  in  the  nature  of  desertion.  Now,  under  a 
scheme  of  laws  that  from  the  foundation  of  the  Government  until 
now  has  never  lifted  finger  to  restrict  the  right  of  citizens  to  retire 
from  office  at  their  mere  will,  -who  shall  say  that  within  the  property 
of  this  electoral  qualification  and  this  count  of  it,  on  this  evidence 
any  question  is  to  he  made  ? 

But  the  authorities  seem  to  be  very  clear  as  to  the  right  of  resigning 
without  even  acceptance.  In  section  2(50  of  Mr.  McCrary's  book,  I 
read : 

Where  tho  law  requires  an  officer  resigning  to  do  so  by  a  written  resignation — 

Where  the  law  in  terms  requires  an  officer  resigning  to  do  so  by  a 
written  resignation — 

to  be  sent  to  the  governor,  it  Is  nol  necessary  that  the  governor  should  signify  his 
acceptance  of  a  resignation  to  make  it  valid.  The  tenure  of  office,  in  such  a  case, 
does  not  depend  upon  the  will  of  the  executive,  but  of  the  incumbent. 

Mr.  Commissioner  ABBOTT.  Is  not  that  a  case  where  the  law  ex 
pressly  provides  that  the  office  may  be  resigned  by  the  party  by  a 
written  resignation  without  any  acceptance  1f 

Mr.  EVAETS.    I  have  examined  the  law. 

Mr.  Commissioner  ABBOTT.     I  think  you  will  find  it  so. 

Mr.  EVARTS.  It  is  spoken  of  as  a  law  which  requires  a  resigna 
tion  in  writing.  This  careful  commentator  quotes  it  as  a  law  that 
requires  "an  officer  resigning  to  do  so  by  a  written  resignation." 

A  civil  officer  has  the  absolute  right  to  resign  his  office  at  pleasure,  and  it  is  not 
within  the  power  of  the  executive  to  compel  him  to  remain  in  office. 

And  the  authorities  for  this  are  given  in  the  first  volume  of  Mc 
Lean's  Reports,  page  512,  where  that  learned  judge  says: 

There  can  be  no  doubt  that  a  civil  officer  has  a  right  to  resign  his  office  at  picas- 
tiro  ;  and  it  is  not  in  the  power  of  the  Executive  to  compel  him  to  remain  in  office. 
It  is  only  necessary  that  the  resignation  should  be  received  to  take  effect ;  and  this 
does  not  depend  upon  the  acceptance  or  rejection  of  the  resignation  by  the  Presi 
dent.  And  if  Fogg  had  resigned  absolutely  and  unconditionally,  I  should  have  110 
doubt  that  the  defendant  could  not  be  held  bound  subsequently  as  his  surety. 

This  was  a  question  of  suretyship.  There  is  a  case  in  California, 
the  People  vs.  Porter,  6  California,  Reports,  27.  "  Resignation  of  of 
fice"  is  the  head-note.  "A  resignation  is  effectual  without  its  accept 
ance  by  the  appointing  power."  You  will  observe  that  under  this 
condition  of  law,  all  the  circumstances  of  this  office  making  its  ap 
plication  a  necessary  result  from  the  nature  of  the  office  and  the 
tenure  not  limited  in  any  way,  all  that  was  necessary  was  to  make  a 
permanent  vacation  of  the  office,  evidenced  by  the  conduct  of  the 
resigning  officer,  and  followed  not  necessarily  by  any  necessary  proof, 
but  if  followed  by  the  public  possession  and  discharge  of  the  office, 
it  took  the  officer  out  of  his  place  within  the  disqualification  or  qual 
ification  concerning  it. 

I  might  refer  to  a  very  important  proposition  made  by  Mr.  Manager 
HOAR  on  the  impeachment  of  Mr.  Belknap  found  on  page  62  of  the 
RECORD,  volume  4,  part  7,  of  this  Congress,  the  two  concluding  para 
graphs  on  the  first  column  of  tha.t  page.  I  will  not  occupy  time  by 
reading  them ;  but  it  was  there  laid  down  by  the  authority  of  the 
House  of  Representatives  through  their  mauagars  that  in  this  coun 
try  the  acceptance  of  a  resignation  was  not  essential  to  vacate  office, 
and  that  the  English  authorities  to  the  contrary  turned  upon  the 
peculiarity  of  their  laws  and  their  system  which  exacted  maintenance 
of  office  against  the  will  of  an  officer. 

Mr.  Commissioner  HOAR.  With  the  exception  there  stated,  that  of 
the  class  of  offices  which  a  person  could  be  compelled  by  mandamus 
to  accept. 

Mr.  EVARTS.  So  I  understood ;  but  that  was  drawn  from  the  Eng 
lish  cases. 

Mr.  Commissioner  HOAR.  And  the  early  New  England  cases.  The 
office  of  constable  a  person  could  be  compelled  by  mandamus  to 
accept. 

Mr.  EVARTS.  But  there  it  was  I  believe  contended,  certainly  it 
is  matter  of  public  knowledge  and  history,  that  in  the  United  States 
service  there  are  no  such  civil  offices  ;  and  no  pretense  of  any  such 
obligation  has  been  set  forth.  We  have  been  satisfied  to  rest  upon 
the  working  maxim  of  our  politics  that  none  resign. 

Now,  I  will  consider,  and  very  briefly,  the  question  of  ineligibility 
made  apparent  by  proof  aliunde,  as  bearing  upon  the  question  whether 
the  vote  is  to  be  omitted  in  the  count.  That  question,  if  not  open 
for  discussion,  will  nevertheless  occupy  me  but  a  very  brief  period, 
and  I  must  assume  that  it  is  open,  that  there  has  been  no  determina 
tion  that  ineligibility  made  to  appear  by  extraneous  proof  would  lead 
to  the  rejection  of  the  vote.  This  clause  of  the  Constitution  which 
simply  prescribes  an  exclusion  from  the  office  of  elector,  left  open  to 
the  appointment  of  the  States,  of  persons  filling  seats  in  Congress  or 
occupying  office  under  the  United  States,  is  a  clause  of  the  Constitu 
tion  not  executing  itself  and  not  executed  by  law ;  and  when,  there 
fore,  in  the  presence  of  the  two  Houses,  tho  transaction  commences 
of  counting  the  presidential  votes,  no  objection  of  that  kind  can  be 
heard  or  entertained,  because  Congress  has  not  filled  out  the  legisla 
tion  necessary  to  provide  the  means  of  adducing  proof  in  advance, 
one  way  and  the  other,  and  the  effect  that  is  to  be  given  to  the  pres 
ence  of  a  disqualified  elector.  Let  me  call  your  attention  to  a  case 


of  the  greatest  weight  in  all  our  discussions  of  matters  before  the 
Supreme  Court — the  case  of  Groves  vs.  Slaughter,  in  15  Peters ;  I  read 
from  page  500.  Look  at  that  question  as  it  was  presented.  The  con 
stitution  of  Mississippi  contained  this  provision  : 

The  introduction  of  slaves  into  this  State  as  merchandise  or  for  sale  shall  be  pro 
hibited  from  and  after  the  1st  day  of  May,  1833. 

After  that  date  they  were  imported  for  sale ;  they  were  sold ;  and 
tho  buyer  gave  his  notes  for  the  price ;  and  the  question  was  whether 
the  notes  could  be  collected.  The  courts  of  Mississippi  held  that 
they  could  not ;  and  the  Supreme  Court  of  the  United  States,  with  but 
two  dissenting  judges,  held  that  the  constitution  did  not  execute  it 
self  and  that  until  legislation  was  provided  that  was  to  have  that 
effect,  it  was  not  executed.  The  court  had  the  advantage  in  their 
decision  of  the  arguments  of  the  ablest  men  at  the  bar;  Mr.  Clay 
and  Mr.  Webster  both  appeared  in  this  case  and  other  very  eminent 
lawyers.  At  pages  500  and  501,  Mr.  Justice  Thompson,  giving  the 
opinion  of  tho  court,  said : 

Admitting  tho  constitution  is  mandatory  upon  the  Legislature,  and  that  they  have 
neglected  their  duty  in  not  carrying  it  into  execution,  it  can  have  no  effect  upon  the 
construction  of  this  article.  Legislative  provision  is  indispensable  to  carry  into 
effect  the  object  of  this  prohibition.  It  requires  the  sanction  of  penalties  to  effect 
this  object.  '  How  is  a  violation  of  tbis  prohibition  to  be  punished?  Admitting  it 
would  be  a  misdemeanor,  punishable  by  flue,  this  would  be  entirely  inadequate  to 
the  full  execution  of  the  object  intended  to  be  accomplished.  What  would  become 
of  the  slaves  thus  introduced  ?  Will  they  become  free  immediately  upon  their  in 
troduction  or  do  they  become  forfeited '  to  the  State  ?  These  are  questions  not 
easily  answered.  And  although  these  difficulties  may  be  removed  by  subsequent 
legislation,  yet  they  are  proper  circumstances  to  be  taken  into  considertion  when 
we  are  inquiring  info  the  intention  of  the  convention  in  thus  framing  this  article.  It 
is  unreasonable  to  suppose  that,  if  this  prohibition  was  iut ended,  per  se,  to  operate 
without  any  legislative  aid,  there  would  not  have  been  some  guards  and  checks 
thrown  around  it  to  secure  its  execution. 

Now  suppose  this  injunction  of  the  Constitution  is  mandatory  on  the 
States  not  to  appoint  as  electors  those  who  are  within  the  prescribed 
disqualification,  Congress  has  not  undertaken  to  execute  it;  the  States 
have  not  undertaken  to  execute  any  procedure  by  which  votes  for 
disqualified  persons  shall  cause  the  failure  of  the  vote  of  the  Stale. 
They  have  provided  no  means;  none  have  been  exercised  here,  and  I 
submit  to  this  Commission  that,  laying  down  as  you  must  a  rule  that 
is  suitable  to  the  ordinary  and  orderly  and  unretarded  progress  of  the 
proceedings  of  the  two  Houses  when  the  President  of  the  Senate  opens 
the  two  certificates  and  dealing  only  with  the  certificates  and  your 
judgment  about  evidence,  unless  in  this  particular,  you  must  hold  that 
in  this  particular  also,  unless  there  be  statutory  provisions  of  the 
United  States  or  of  the  State  purging  the  lists,  you  must  count  the  vote 
that  the  State  sends  forward  and  that  its  governor  certifies  where 
there  is  no  question  of  objection  of  any  other  nature,  which  the  ease 
of  course  now  being  considered  contains,  you  are  undertaking  to  deal, 
in  the  process  of  counting  the  vote,  with  a  question  to  be  settled  by 
fact  antecedent  to  the  appointment,  and  you  are  exposed  to  a  final 
and  irrevocable  rejection  of  the  vote  from  the  mere  casual  impression 
or  uncertainty  of  evidence. 

Tbis  subject,  then,  being  rejected  from  a  further  consideration,  I 
understand  there  is  no  matter  left  but  for  the  execution  by  this  Com 
mission  of  the  duty  accorded  to  it  by  the  act  of  Congress  under  which 
it  is  organized,  to  determine  out  of  the  materials  of  these,  three  cer 
tificates  what  and  how  many  votes  are  to  be  counted  for  the  State  of 
Florida. 

The  first  certificate  is  subject  to  no  criticism.  You  have  rejected 
all  means  whatever  of  questioning  it  by  evidence  as  to  what  occurred 
before  the  vote  was  cast,  before  the  vote  was  certified  by  the  gov 
ernor,  or  after  either  of  those  parts  of  the  transaction  up  to  the  time 
of  the  counting.  No  fact  can  intervene.  This  vote  then  is  to  be 
counted,  not  because  it  is  the  best  that  is  seen,  but  by  the  absolute 
fullness  of  its  title  in  complying  with  all  the  laws  that  have  been 
imposed  by  Congress  concerning  the  complete  verification  of  a  cer 
tificate.  The  fact  certified  is  not  gainsaid  by  proof,  for  it  is  ex 
cluded.  There  was  no  offer  of  proof  between  the  fact  of  the  canvass 
closed  and  recorded  and  the  canvass  certificated. 

This  certificate  then  includes  with  every  degree  of  certainty  and 
assurance  the  votes  of  the  State  of  Florida,  and  there  are  four  votes 
here,  and  there  is  room  for  no  more.  To  make  it  therefore  of  any 
practical  importance  in  the  further  discussion,  there  must  be  appar 
ent  on  the  two  other  certificates  either  such  disparagement  of  the 
first  or  such  authenticity  in  the.  latter  as  should  displace  the  one  and 
substitute  the  other,  or  there  must  be  such -production  of  rival  and 
competing  certificates  as  leaves  the  Commission  to  rest  in  doubt  and 
uncertainty  as  to  which  votes  are  to  be  counted. 

Now,  as  you  Avill  not  allow  evidence  outside  of  this  first  certificate 
as  bearing  directly  upon  its  actual  affirmative  authenticity  and  suffi 
ciency,  you  will  not  allow  any  evidence  collaterally  on  the  mere  pre 
sentation  or  support  of  any  other  certificate.  If  another  certificate 
comes  here  that,  by  its  own  credit,  is  made  superior  to  ours,  it  dis 
places  it.  If  it  is  made  equal  to  ours,  then  there  are  two  certificates 
and  then  you  must  determine  which  of  the  two  or  whether  either  is 
entitled  to  consideration.  That  leads  me  to  ask  attention  to  these 
other  certificates,  so  called.  By  the  only  certificate  that  relates  to  an 
apparent  act  in  the  election  of  President  of  the  United  States  on  the 
part  of  the  State  of  Florida,  it  is  shown  to  have  been  wholly  without 
authority  of  law,  and  this  second  certificate,  so  far  from  competing 
with  the  first  or  disparaging  the  first,  confirms  it  in  all  respects;  in 
the  first  place  negatively,  for  it  wants  the  certificate  of  the  executive 


ELECTORAL  COMMISSION. 


51 


that  is  prescribed ;  in  the  second  place,  by  an  entirely  superfluous 
and  worthless  paper,  so  far  as  the  Constitution  and  laws  of  the  United 
States  are  concerned  and  so  far  as  the  laws  of  Florida  are  concerned, 
of  an  attorney-general  of  that  State,  having  no  more  power  or  au 
thority  to  certify  anything  about  the  election  than  the  commander 
of  the  militia  of  the  State,  carrying  therefore  on  its  face  no  invitation 
to  your  hospitality  and  excluding  itself  from  consideration  by  its  be 
ing  wholly  without  legal  support  in  the  laws  of  Florida  and  wholly 
unrecognized  under  the  Constitution  and  laws  of  the  United  States. 

But  if  you  treat  it  as  a  paper,  read  it  for  what  it  says.  It  shows 
you  that  the  recorded  canvass  as  it  lay  in  the  secretary  of  state's 
office  was  the  only  transaction  in  that  election  that  the  governor  of 
the  State  by  its  laws  could  certify  to,  and  that  his  certificate  rested 
upon  that  fact  and  could  not  be  questioned  for  reason  of  its  not  ob 
serving  the  executive  duty.  Let  me  ask  your  attention  to  the  true 
result  of  this  certificate,  as  was  well  and  firmly  stated  by  my  asso 
ciate,  Mr.  Stoughton,  when  he  said  that  it  showed  that  it  would  have 
been  a  violation  of  duty  on  the  part  of  the  governor  of  the  State  of 
Florida  to  have  certified  or  looked  at  anything  else,  provided  you  take 
this  attorney-general's  certificate  af  what  the  law  is.  He  describes 
himself  as  an  attorney-general,  and  by  virtue  of  that  office  one  of 
the  members  of  the  board  of  State  canvassers  of  the  State  of  Florida, 
and  he  undertakes  to  certify  "  that,  by  the  authentic  returns  of  the 
votes  cast  in  the  several  counties  of  the  State  of  Florida,  *  *  *  said 
returns  " — that  is,  the  county  returns — "  being  on  file  in  the  office  of 
the  secretary  of  state,  and  seen  and  considered  by  me  as  such  mem 
ber  of  the  board  of  State  canvassers  of  the  said  State  of  Florida,  it 
appears  and  is  shown  "  that  the  four  gentlemen  named  "were  chosen 
the  four  electors  of  President  and  Vice-President  of  the  United 
States." 

And  I  do  further  certify  that,  under  the  act  of  the  Legislature  of  the  State  of  Flor 
ida  establishing  said  hoard  of  State  canvassers,  no  provision  has  been  enacted,  nor 
is  any  such  provision  contained  in  the  statute  law  of  this  State,  whereby  the  result 
shown  and  appearing  by  said  returns — 

That  is,  the  county  returns — 
to  said  board  of  State  canvassers  can  be  certified  to  the  executive  of  the  said  State. 

If  that  is  not  as  complete  an  exclusion  of  the  possibility  of  there 
being  any  reliance  or  resort  by  the  laws  of  Florida  on  the  part  of  the 
executive  to  any  of  this  evidence,  these  returns,  or  any  part  of  them, 
what  could  supply  such  a  conclusion  ?  And  when  you  look  at  the 
law  of  Florida  already  brought  to  the  attention  of  the  Commission, 
you  find  that,  as  a  part  and  the  final  part  of  the  transaction  of  ap 
pointing  electors,  the  canvassers  having  made  their  report,  it  is  the 
governor's  duty  thereupon  to  issue  his  certificate  to  the  electors  thus 
shown  to  be  elected,  which  is  the  final  warrant  by  the  State  of  Flor 
ida  of  their  appointment  and  the  justification  of  their  action  in 
voting. 

I  come  now  to  a  third  certificate,  so  called,  and  we  are  to  proceed  to 
inquire  whether  there  is  anything  on  that  which  disparages  or  over 
tops  the  paramount  authority  of  the  first  certificate.  In  regard  to 
this  certificate,  I  say  that  it  is  a  paper  having  no  warrant  whatever 
under  the  Constitution  or  laws  of  the  United  States  or  of  the  State 
of  Florida — I  mean  of  the  laws  of  the  State  of  Florida  as  they  ex 
isted  when  the  appointment  was  completed  and  when  the  vote  was 
cast  and  certified  and  transmitted  here.  It  is  a  posthumous  certifi 
cate  of  post-mortem  action,  never  proceeding  from  any  vital  or  living 
college  of  electors,  but  only  by  the  galvanic  agency  of  interested  party 
purpose,  taking  effect  after  the  whole  transaction  was  ended.  I  sub 
mit  to  your  honors,  without  making  any  imputation  as  between  po 
litical  parties,  that  the  inspection  of  this  certificate  shows  that,  the 
transaction  having  gone  on  and  been  completed  within  the  purview 
of  the  Constitution  and  the  laws  of  the  United  States  and  the  laws 
of  the  State  of  Florida,  a  government,  coming  into  being  on  the  sub 
sequent  1st  of  January  by  the  change  of  political  parties,  under 
takes  to  undo  what  has  already  been  done. 

That  proposes  (without  offense  to  the  arrangement  of  the  two  par 
ties  in  this  transaction)  that  one  party  was  in  possession  of  power 
during  the  procedure  of  the  transaction  and  was  succeeded  by  a 
change  of  party.  It  would  be  just  the  same  if  the  reverse  situation 
in  the  names  of  the  parties  were  concerned.  If  it  can  be  done,  then  all 
the  care  and  all  the  wisdom  and  all  the  contrivances  that  are  to  make 
this  transaction  in  the  States  final  at  some  point,  certifiable  at  some 
point,  and  in  some  manner  and  by  some  officer  are  to  go  for  nothing, 
if  when  there  are  new  officers,  new  interests,  new  legislators,  by  either 
or  all  the  powers  of  the  changed  government,  the  vote  that  has  been 
deposited  can  be  corrupted,  subtracted,  obscured,  or  substituted ;  if 
Legislature,  governor,  judiciary,  all  enter  into  the  transaction  that  is 
to  substitute  for  the  deposited  vote  of  the  State  a  vote  that  they  then 
presently  seek  to  deposit,  or  that  its  efficacy,  if  not  adequate  for  its 
own  counting,  shall  displace  the  counting  of  the  completed  transac 
tion. 

This  certificate,  opened  by  the  President  of  the  Senate,  and  by  that 
mere  act,  therefore,  laid  before  the  Houses  of  Congress  and  trans 
mitted  here,  when  the  contents  are  opened  and  read,  is  shown  to  be 
no  certificate  under  the  Constitution  of  the  United  States  or  the  act 
of  Congress  or  the  laws  of  Florida  in  existence  at  the  time  of  the 
casting  of  the  electoral  vote  of  that  State  within  its  borders.  It  is 
under  the  aspect  and  the  cover  of  a  certificate  transmitted  to  the 
President  of  the  Senate  connected  with  the  election,  made  the  vehicle 
of  carrying  into  the  physical  presence  and  powers  of  the  two  Houses, 


and  thus  of  this  Commission,  what  is  utterly  nugatory,  utterly  inef 
fectual,  utterly  unauthorized  by  any  provision  of  the  Constitution. 

You  cannot  count  that,  then,  as  an  electoral  vote.  Nobody  pretends 
that  that  certificate,  coming  here  on  the  31st  of  January,  reciting 
legislation  not  completed,  I  think,  until  the  26th,  and  some  quo  war- 
ranto  judgment  referred  to  that  was  terminated  on  the  23d  or  17th — 
the  dates  are  utterly  immaterial — is  a  paper  that  the  President  of  the 
Senate  was  by  the  Constitution  required  to  receive.  It  was  not  a 
paper  that  is  a  certified  vote  of  the  State.  It  is  not  a  paper  that  can 
carry  any  means  of  furnishing  you  with  the  vote  of  the  State  to  be 
counted ;  so  in  respect  of  evidence  it  is  wholly  without  authority. 

It  will  be  observed  that  the  certificate  of  Governor  Drew,  by  pub 
lic  knowledge  shown  to  have  come  into  his  office  on  the  1st  of  Jan 
uary  or  later  perhaps,  but  the  term  of  his  office  dates  from  then,  un 
dertakes  by  authority  of  an  act  passed  January  17,  1877,  which  had 
ordered  a  new  "canvass  of  the  returns  of  said  votes-  on  file,"  which 
canvass  "  was  on  the  19th  day  of  January  made  according  to  the  laws 
of  the  State  and  the  interpretation  thereof  by  the  supreme  court"  to 
recite  that  four  gentlemen  named  "were  duly  determined,  declared, 
and  certified" — that  is,  by  these  canvassers  taking  up  the  transaction 
in  January  under  a  law  passed  in  January  and  making  a  scrutiny 
ending  on  the  17th — "  to  have  been  elected  electors  of  President  and 
Vice-President  of  the  United  States  for  the  State  of  Florida  "  at  the 
past  election  in  November,  "  as  shown  by  said  returns; "  and  it  further 
recites  that — 

In  a  proceeding  on  the  part  of  the  State  of  Florida  by  information  in  the  nature  of 
quo  warranto  wherein  the  said  Robert  Bullock,  Robert  B.  Hilton,  "Wilkinson  Call, 
and  James  E.  Tonge  were  relators,  and  Charles  H.  Pearce,  Frederick  C.  Humphreys, 
William  H.  Holden,  and  Thomas  W.  Long  were  respondents,  the  circuit  court  of 
this  State  for  the  second  judicial  circuit,  after  full  consideration  of  tho  law  and  the 
proofs  produced  on  behalf  of  the  parties  respectively,  by  its  judgment  determined 
that  said  relators  were,  at  said  election,  iu  fact  and  in  law,  elected  such  electors  as 
against  tho  said  respondents  and  all  other  persons : 

Now,  therefore,  and  also  in  pursuance  of  an  act  of  tho  Legislature  entitled  "  An 
act  to  declare  and  establish  the  appointment  by  the  State  of  Florida  of  electors  of 
President  and  Vice-President  of  the  United  States,"  approved  January  26,  A.  D. 
1877, 1,  George  F.  Drew,  governor  of  the  State  of  Florida,  do  hereby  make  and  cer 
tify  the  following  list  of  the  names  of  the  said  electors  chosen,  appointed,  and  de 
clared  as  aforesaid,  to  wit. 

The  certificate  required  was  a  certificate  to  be  delivered  to  the  col 
lege  of  electors  at  or  before  the  day,  and  that  is  the  only  certificate 
which  can  have  any  force  ;  and  here  we  have  a  certificate  of  a  gov 
ernor  who  was  not  governor  at  that  time. 

Then,  besides,  we  have  all  that  is  here  stated  to  be  absolutely  posj. 
hac,  subsequent  to  the  transaction,  and  only  allowed  to  present  itself 
on  the  31st  day  of  January  just  past,  to  have  some  influence  upon  the 
transaction  that  had  been  completed  and  been  certified ;  and  that 
when  the  two  competing  certificates  of  the  rival  electors  had  been 
finished  and  placed  in  possession  of  the  President  of  the  Senate  long 
before  this  authority  arose.  What  becomes  of  the  authority  in  Con 
gress,  exercised  under  the  Constitution,  to  say  that  the  votes  shall  all 
be  delivered  on  the  part  of  the  States  on  the  same  day  ?  Is  not  that 
a  substantive  provision  ?  Is  not  that  a  hold  that  Congress  by  the 
Constitution  was  given  concerning  the  deposit  of  the  electoral  vote  ? 
Certainly  it  was. 

What  becomes  of  the  provision  of  the  act  of  Congress,  justified  by 
the  Constitution,  that  the  elections  or  other  methods  of  appointment 
that  the  State  may  use  shall  be  on  the  same  day  ?  What  does  it 
mean  ?  Does  it  mean  anything  ?  Did  our  fathers  trifle  upon  ques 
tions  of  punctilio  and  order  ?  No.  If  it  means  anything,  it  means 
that  it  must  be  done  on  one  day,  that  it  shall  not  be  undone  on  any 
other  day.  It  is  to  be  done  on  one  day ;  it  is  to  be  finished  on  one 
day;  and  they  would  laugh  at  the  triviality  of  the  wisdom  of  their 
successors  in  the  great  places  of  the  Constitution,  the  Senate  and  the 
House  and  the  great  judges  of  the  land,  if  on  the  first  occasion  that 
it  became  necessary  or  at  all  effectual  to  undo,  it  should  be  held  as 
constitutional  law  that  when  it  was  provided  it  should  all  be  done  on 
one  day,  that  meant  that  after  what  was  done  was  known,  and  after 
the  importance  of  undoing  it  was  understood,  and  after  the  change 
of  parties  or  the  ambition  of  human  nature  made  it  important  to 
undo  in  separate  parcels  and  at  various  times  what  had  been  supposed 
to  have  been  concluded  and  made  sacred  in  the  deposit  that  the 
Constitution  had  assigned  for  a  finished  transaction,  that  courts,  that 
legislatures,  that  governors  remote  from  responsibility  or  seconded 
in  their  transactions  by  the  opinion  of  party  and  the  applause  of  po 
litical  interests  should  have  the  fingering  of  every  vote  for  President 
until  the  counting  was  concluded. 

What  are  the  prodigious  claims  here  ?  That  by  a  lawsuit,  and  a 
lawsuit  in  a  State  court,  begun  and  ended  it  may  be  afterward,  be 
gun  if  you  please  but  ended  afterward,  by  virtue  of  that  transaction 
the  State's  completed  vote  is  to  be  retrieved  and  reversed ;  and  that 
when  a  justice's  court  of  the  first  instance  has  so  decided,  as  my 
learned  brother,  Mr.  Green,  has  said  the  courts  of  the  United  States 
make  a  low  obeisance  to  Mr.  Justice  White,  and  say :  "  That  is  the 
end  of  the  law  ;  that  is  the  fiat  of  the  State."  Well,  supposing  that 
we  had  succeeded  in  counting  a  President  in  under  quo  warranto,  jus 
tified  under  the  Constitution  and  the  laws  as  they  now  are  or  that 
shall  be  opened  by  legislation  to  the  tribunals  of  the  country,  and 
suppose  that  then  a  quo  warranto  is  started  to  prove  that  the  Presi 
dent  in  his  seat  should  be  dislodged  because  some  of  the  votes  counted 
for  him  were  not  by  dejure  electors,  and  then  it  is  proposed  that  the 
decision  of  the  State  court  is  "  the  be-all  and  the  end-all "  of  that 


ELECTORAL  COMMISSION. 


inquiry ;  that  whichever  of  those  candidates  takes  his  seat  as  Presi 
dent  of  the  United  States  in  a  situation  of  evenly  balanced  elections, 
his  continued  possession  of  the  Federal  office  upon  the  judgment  post 
Me  of  a  State  that  hold|  whenever  a  quo  warranto  comes  to  an  end 
by  due  procedure  of  their  laws ;  that  the  title  of  the  President  that 
acquired  the  count  of  the  votes  of  Ohio  or  of  New  York  was  a  mis 
count,  a  count  of  spurious  votes,  so  held  and  determined  by  the 
State  in  the  independence  of  its  judiciary  passing  upon  the  question. 
What  sort  of  a  government,  what  sort  of  a  Presidency,  what  sort  of 
muniments  and  protections  of  regularity  and  permanence  of  authority 
under  the  Constitution  are  provided  by  a  scheme  of  perpetual  four 
years'  dependence  upon  a  quo  warranto  in  the  State  of  Nevada  or  of 
Florida? 

You  then  must  never  lose  sight  of  the  matter  that  you  are  to  advise 
what  votes  and  how  many  shall  be  counted  by  the  two  Houses  that 
stand  in  a  present  duty,  never  intended  by  the  Constitution  to  be  in 
terrupted  by  a  day  or  by  an  hour.  When  you  have  determined  that 
evidence  shall  not  invade  the  regularity  of  the  finished  transaction 
of  the  State  or  defeat  the  regularity  of  the  certification  under  the 
acts  of  Congress  at  the  time  when  the  votes  are  sealed  up  in  their 
packages  and  transmitted,  when  you  have  determined  that  that  shall 
not  be  invaded  by  extraneous  evidence,  you  have  determined  as  by  a 
double  decision  that  it  shall  not  be  invaded,  disparaged,  or  exposed 
to  any  question  by  a  mere  certificate  that  is  its  own  agent  and  author 
and  volunteer  in  disturbance  of  the  counting  of  the  votes. 

The  PRESIDENT.  Will  any  other  gentleman  speak  on  your  side, 
Mr.  Evarts  ? 

Mr.  EVARTS.    We  have,  I  believe,  a  little  unoccupied  time. 

The  PRESIDENT.    O,  yes. 

Mr.  EVARTS.    We  do  not  propose  to  occupy  it. 

The  PRESIDENT.    The  case  is  submitted  on  your  side  ? 

Mr.  EVARTS.     Yes,  sir. 

The  PRESIDENT.  There  are  fifty-five  minutes  left  for  reply  to  the 
other  side. 

Mr.  MERRICK.  Mr.  President  and  gentlemen  of  the  Commission, 
the  duty  of  closing  this  argument  has,  I  regret  to  say,  been  imposed 
upon  me,  more  especially  as  the  protracted  session  of  this  court  or  the 
atmosphere  of  this  room  has  given  me  a  very  severe  pain  in  my  head; 
but,  may  it  please  your  honors,  I  know  the  importance  of  a  speedy 
termination  of  the  labors  of  this  Commission,  and  shall  proceed  to  the 
discharge  of  my  duty  as  best  I  can  without  asking  the  indulgence  of 
any  delay. 

The  counsel  on  the  other  side  in  their  arguments  to-day  seem  to 
have  taken  a  step  even  in  advance  of  what  they  took  on  the  occasion 
of  the  preceding  argument  and  now  seek  to  exclude  even  any  inquiry 
whatever  into  the  subject-matter  submitted  to  this  Commission  for 
their  consideration ;  and  while  the  learned  counsel  who  has  just 
closed  has  so  eloquently  called  your  attention  to  the  painful  condi 
tion  that  would  be  presented  should  we  proceed  to  an  election  of 
a  President  of  the  United  States  subject  to  the  delays  that  might  be 
incident  to  the  various  judgments  that  might  be  rendered  on  quo 
warrantos  instituted  for  the  purpose  of  ascertaining  the  truth  of  the 
due  election  of  electors,  he  omitted  to  call  your  attention  to  the  coun 
terpart  of  that  picture,  the  condition  of  Government  we  should  have 
with  a  President  walking  up  to  the  presidential  chair  along  a  path 
way  strewn  with  recognized  frauds,  perjuries,  and  crime,  into  which 
the  people  of  this  country  are  neither  allowed  to  inquire  through 
their  representatives  in  the  Federal  Congress  nor  through  their  rep 
resentatives  in  the  government  of  the  States.  I  apprehend  that  this 
Commission  in  considering  the  picture  the  learned  gentleman  has 
presented  to  you,  will  find  in  the  counterpart  even  a  worse  picture 
and  one  from  which  the  mind  and  the  heart  of  every  patriotic  citizen 
will  start  back  pained  and  shocked  and  agonized. 

All  that  we  have  asked,  may  it  please  your  honors,  and  all  that  we 
ask  now  under  the  rules  of  evidence  prescribed  by  this  tribunal,  is 
that  the  truth  shall  be  ascertained  in  these  matters  in  regard  to  which 
you  are  to  act  and  that  when  that  truth  is  ascertained  it  may  become 
in  its  necessary  and  legal  results  a  practical  matter  incorporated  into 
the  political  history  of  the  country. 

The  point  to  which  the  learned  gentleman  first  addressed  himself 
was  that  raised  by  the  counsel  for  the  objectors  this  morning  to  the 
vote  of  Humphreys  because  of  his  position  as  an  official  under  the 
Federal  Government,  and  both  gentlemen  have  taken  the  position 
that  we  are  so  fastened  to  fraud  and  illegality,  if  either  should  ex 
ist  in  this  matter,  that  there  can  be  no  inquiry  by  the  Congress  of 
the  United  States,  or  this  Commission,  or  the  two  Houses  of  Con 
gress,  even  to  ascertain  whether  an  elector  coming  forward  and  de 
positing  his  ballot  is  within  the  class  of  persons  inhibited  from  hold 
ing  that  office  of  elector  by  the  Constitution  of  the  United  States.  I 
beg  pardon,  may  it  please  your  honors,  for  using  the  word  "  inhib 
ited,"  for  to  speak  of  a  person  inhibited  by  the  Constitution  from 
holding  certain  Federal  office  or  to  speak  of  a  person  as  ineligible  for 
certain  reasons  is  to  convey  a  very  erroneous  impression  of  the  pro 
vision  of  the  Federal  Constitution  on  the  subject  now  under  consid 
eration. 

This  provision  is  not  directed  immediately  to  any  personal  dis 
ability  of  the  individuals  to  whom  it  refers,  nor  is  it  directed  immedi 
ately  to  any  personal  disqualification  under  which  such  person  may 
be,  but  the  disqualification  operates  upon  the  power  given  to  the 
State,  and  disables  the  State  from  appointing  such  persons  rather 


than  disables  the  person  from  holding  the  office.  This  probably  is 
the  only  article  in  the  Constitution  of  the  United  States  in  which 
there  is  anything  in  the  nature  of  a  grant  from  the  Federal  Govern 
ment  to  the  State.  Throughout  our  entire  system  the  Federal  Gov 
ernment  becomes  the  recipient  of  power  from  the  States,  and  is  the 
grantee  of  powers  and  not  the  grantor,  or  to  speak  more  correctly  in 
the  phraseology  of  the  law,  is  the  donee  and  not  the  donor ;  but  in  this 
particular  instance  a  power  is  given  to  the  States  to  appoint  electors 
in  such  manner  as  their  Legislatures  respectively  may  think  proper 
and  expedient.  But,  says  the  article  : 

No  Senator  or  Representative,  or  person  holding  an  office  of  trust  or  profit  under 
the  United  States,  shall  be  appointed  an  elector. 

You  will  see  from  the  phraseology  of  the  article  that  it  is  a  limita 
tion  upon  the  power  of  appointment  rather  than  a  designation  of  the 
disability  of  the  appointee.  A  State  has  the  power  to  appoint  whom 
it  pleases  within  certain  limitations,  and  when  it  transcends  those 
limitations  it  does  not  execute  a  power  which  is  given  to  it,  but  assumes 
to  act  beyond  the  given  power,  and  the  attempted  appointment  is 
necessarily  absolutely  null  and  void.  And  yet  the  learned  counsel  on 
the  other  side  would  tell  us  that,  whether  the  State  regards  this  re 
quirement  of  the  Federal  Constitution  or  not,  whether  the  State  in 
the  execution  of  the  power  delegated  to  her  shall  appoint  one  whom 
it  is  beyond  her  power  to  appoint  or  not,  we  are  not  to  enter  into  the 
inquiry,  forsooth,  but  to  accept  as  final  and  conclusive  in  a  presiden 
tial  election  the  vote  of  one  whom  the  Constitution  of  the  United 
States  has  declared  the  State  shall  under  no  circumstances  appoint. 

In  contrast  with  this  provision  of  the  Constitution,  and  by  analogy 
to  develop  more  distinctly  the  view  I  have  presented,  recur,  may  it 
please  your  honors,  to  those  provisions  that  relate  to  the  personal  dis 
qualification  of  citizens  of  the  United  States  to  occupy  the  office  of 
Representatives  and  Senators  in  Congress.  Those  provisions  direct 
that  no  person  who  has  a  certain  disability  or  who  fails  to  have  cer 
tain  qualifications  shall  be  a  Senator  or  Representative ;  for  instance, 
no  person  shall  be  a  Representative  until  he  attains  the  age  of  twenty- 
five  years ;  no  person  shall  be  a  Senator  until  he  attains  the  age  of 
thirty.  Under  the  clauses  of  the  Constitution  referred  to,  if  an  in 
dividual  is  elected  to  the  House  of  Representatives  before  he  is  twenty- 
five  years  of  age,  but  reaches  that  ago  prior  to  the  time  of  taking  his 
seat,  he  is  capable  of  occupying  the  position ;  and  if  a  Senator  is 
elected  before  he  reaches  the  age  of  thirty,  but  attains  that  age  be 
fore  he  takes  his  seat,  he  is  capable  of  occupying  that  position.  But 
in  the  case  of  the  State  as  to  its  electors  it  is  not  a  matter  of  time  nor 
a  personal  disability  that  either  the  lapse  of  time  or  anything  on  earth 
can  dispense  with,  for  it  is  a  limitation  upon  the  power,  and  if  the 
State  exceeds  the  power  granted  the  act  is  void  from  the  very  day  it 
was  attempted  to  be  performed,  and  the  individual  who  assumes  to 
cast  the  ballot  when  appointed  in  excess  of  that  power  of  appoint 
ment  casts  a  piece  of  paper  that  might  in  every  view  of  constitutional 
law  and  every  ordinary  view  of  power  in  the  law  be  regarded  as  a 
blank. 

Now,  may  it  please  your  honors,  we  maintain  that  the  State  of 
Florida,  if  it  should  be  that  you  hold  the  first  certificate  valid,  has 
appointed  as  one  of  her  electors  an  office-holder  of  the  Federal  Gov 
ernment,  and  thus  exceeded  her  power.  Upon  that  question  there  are 
two  matters  of  fact  arising :  first,  was  he  an  office-holder,  and,  second,  if 
so,  was  he  at  the  time  of  the  appointment  ?  The  learned  counsel  on  the 
other  side  require  that  we  should  be  limited  to  the  strictest  possible 
proof  of  the  fact  of  his  incumbency  on  the  day  of  the  appointment. 
I  apprehend  that  as  far  as  legal  principles  are  known  and  recognized, 
when  you  have  once  proved  the  incumbency  of  an  individual,  the 
presumption  of  law  follows  and  goes  with  you  and  the  burden  of  proof 
is  upon  him  to  show  that  that  incumbency  has  ceased  to  exist.  It  is 
not  for  us  to  trace  the  fact  of  his  continuing  in  office  down  from  the 
day  of  his  appointment.  If  we  prove  the  commission  under  the  broad 
seal  by  which  he  holds  that  office,  and  then  superadd  to  that  com 
mission  the  fact  that  he  has  discharged  the  functions  of  that  office  at 
a  period  of  time  somewhat  near  in  date  to  the  period  of  his  appoint 
ment,  the  presumption  of  law  is  that  he  acted  under  the  commission 
from  the  date  of  his  appointment  and  up  to  the  present  time,  until 
that  presumption  is  rebutted  by  evidence  upon  the  other  side. 

But  the  learned  counsel  on  the  other  side  had  the  officer  himself 
upon  the  stand ;  and  if  the  resignation  as  proved  by  that  officer  is  not 
a  sufficient  resignation,  then,  as  a  matter  of  course,  he  did  not  resign 
at  all  according  to  his  own  evidence,  and  was  still  in  office  on  the 
day  of  his  pretended  appointment  as  elector.  The  resignation,  as 
shown  by  him,  was  a  private  letter  addressed  to  the  judge  of  the  cir 
cuit  court,  who  was  then  in  Ohio — I  forget  the  particular  locality  in 
Ohio  to  which  the  letter  was  addressed 

Mr.  STOUGHTON.    Newark. 

Mr.  MERRICK.  Newark,  Ohio  ;  and  the  receipt  of  a  letter  by  him 
from  the  judge  indicating  his  acceptance  of  that  resignation.  The 
statute  of  the  United  States  requires  that  this  appointment  shall  be 
made  by  the  circuit  court,  and  if  any  resignation  is  necessary  at  all, 
as  we  hold  that  it  is,  and  the  acceptance  of  a  resignation,  that  res 
ignation  can  only  be  made  to  the  power  that  gave  the  appointment, 
and  the  power  that  gave  the  appointment  is  the  only  power  capa 
ble  of  accepting  that  resignation  and  relieving  the  party  from  the 
incumbency  of  the  official  position. 

The  circuit  court  being  the  power  that  gave  the  appointment,  it 
was  to  the  circuit  court  that  his  resignation  shottld  have  been  sent  j 


ELECTORAL  COMMISSION. 


53 


and  if  an  acceptance  was  necessary  it  was  the  circuit  court  that  should 
have  given  that  acceptance,  and  the  acceptance  should  have  ap 
peared  upon  the  records  of  that  court  if  ever  given,  alongside  of 
the  commission,  nullifying  the  commission  by  the  same  sanctity  of 
record  which  the  commission  had  in  bestowing  the  oflice.  But  it  is 
in  proof  before  this  honorable  Commission  that  there  is  no  record  of 
that  resignation  ;  that  the  commission  stands  upon  the  records  of  the 
court  to-day  unimpeached  and  unimpaired  by  any  recorded  resigna 
tion  of  the  officer  that  it  clothed  with  official  power ;  and  I  respect 
fully  submit  that,  until  that  resignation  is  there  recorded,  until  that 
resignation  is  accepted  by  the  power  which  gave  it  and  appears  of 
record,  this  party  still  continues  in  office. 

Mr.  Commissioner  HOAR.  Mr.  Merrick,  I  should  like  to  ask  you  a 
question  which  perhaps  it  will  be  convenient  to  state  now  and  you  can 
answer  it  at  such  time  as  you  choose.  Section  6  of  article  1 ,  to  which  you 
have  just  referred,  provides  that  no  person  holding  any  office  under  the 
United  States  shall  be  a  member  of  either  House  during  his  continu 
ance  in  office.  Now  if  this  gentleman  had  been  elected  a  Senator  or 
Representative  of  the  United  States,  and  the  judge  of  the  circuit  court 
had  refused  to  accept  his  resignation  as  shipping  commissioner,  do 
you  hold  that  he  never  could  have  taken  the  office  of  Senator  or  Rep 
resentative  ?  If  not,  how  do  you  distinguish  the  case  from  the  pres 
ent  one  ? 

Mr.  MERRICK.  I  will  answer  the  question.  I  do  not  hold  that  if 
his  resignation  had  never  been  accepted  lie  would  not  have  been  com 
petent  to  act  as  a  Senator  of  the  United  States ;  but  when  elected  to 
the  Senate  of  the  United  States  the  acceptance  by  the  Senate  of  the 
United  States  of  that  individual  as  a  Senator  would  have  been  his 
discharge  from  that  office,  provided  he  had  prior  to  that  time  tend 
ered  his  resignation  to  the  court. 

Mr.  Commissioner  HOAR.  Then  if  taking  upon  himself  the  incom 
patible  office  be  a  sufficient  discharge  from  the  other  one,  in  that 
case  is  not  the  taking  upon  himself  the  office  of  elector  ? 

Mr.  MERRICK.  If  this  were  a  personal  disability  it  would  have 
been.  If  it  was  a  personal  disqualification  in  the  man  it  would  have 
effected  that  result.  But  where  the  difficulty  in  taking  the  office  is 
not  a  personal  disqualification  in  the  individual,  but  a  limitation 
upon  the  power  that  is  to  give  the  office,  it  does  not  have  that  effect. 

Mr.  Commissioner  ABBOTT.  The  acceptance  in  that  way  would  be 
at  a  time  very  much  later  than  the  appointment,  would  it  not? 

Mr.  MERRICK.  Necessarily  so.  It  rests  upon  that  distinction 
that  the  one  is  a  limitation  upon  the  power  and  the  other  is  a  dis 
qualification  of  the  person. 

Mr.  Commissioner  ABBOTT.  Mr.  Merrick,  I  understand  you  to 
claim  in  this  case  that  an  acceptance  is  not  necessary,  but  still  the 
resignation  must  be  to  the  party  or  court  or  person  appointing. 

Mr.  MERRICK.  It  must  be  unquestionably.  If  a  resignation  even 
is  not  necessary,  as  I  stated  to  Judge  HOAR  I  think  in  my  reply,  yet 
if  he  had  resigned,  whether  accepted  or  not,  the  offer  of  the  resigna 
tion  is  necessary,  and  that  offer  must  be  made  to  the  power  that  gave 
the  appointment.  Suppose  he  had  resigned  to  the  clerk  of  the  court, 
addressed  the  clerk  at  Newark,  Ohio,  a  private  letter  saying  "  I  as 
shipping  commissioner  beg  leave  to  tender  my  resignation  to  you," 
or  "beg  leave  to  tender  my  resignation,"  how  would  it  have  been 
understood  ?  It  would  have  been  understood  as  a  resignation  in 
tended  for  the  clerk  to  present  to  the  court,  and  until  it  got  to  the 
court  it  could  not  act  as  a  resignation  of  his  office,  either  with  or 
without  any  acceptance. 

The  PRESIDENT.  Mr.  Merrick,  if  a  commissioner  of  the  circuit 
court  tenders  his  resignation  to  the  judge  and  the  judge  directs  it  to 
be  filed  in  the  court,  is  that  an  acceptance  ? 

Mr.  MERRICK.  When  the  court  is  in  session  it  is  an  act  of  the 
court;  and  if  the  commissioner  sends  that  resignation  to  the  clerk's 
office  it  is  there  to  wait  for  the  sitting  of  the  court  and  is  then  filed 
during  the  session. 

Mr.  Commissioner  GARFIELD.  Mr.  Merrick,  allow  me  to  ask  you 
do  you  hold  that  in  case  there  should  be  a  long  vacation  of  the 
court,  or  the  court  should  be  abolished  by  law,  or  the  judge  should 
die  and  for  a  year  or  two  no  appointment  be  made  in  his  place,  this 
commissioner  could  never  have  resigned  ? 

Mr.  MERRICK.  I  should  refer  that  case  to  one  of  the  returning 
boards  of  the  South.  I  hardly  know  in  such  an  extreme  case  what 
reply  to  make. 

Mr.  Commissioner  GARFIELD.  I  understand  your  position  to  be 
that  he  cannot  resign  except  when  the  court  is  in  session. 
i  Mr.  MERRICK.  He  cannot  resign  except  when  the  court  is  in  ses 
sion  ;  but  I  presume  that  death  and  the  abolition  of  an  office  and  the 
extinction  of  a  government  and  the  wiping  out  of  a  country  and  the 
destruction  of  a  whole  people  would  make  exceptions  to  all  principles 
of  law. 

i  The  PRESIDENT.  I  shall  not  take  these  interruptions  out  of  your 
time,  Mr.  Merrick. 

Mr.  MERRICK.  Now,  may  it  please  your  honors,  I  pass  from  that 
branch  of  the  case. 

Mr.  Commissioner  MILLER.  Before  you  pass  from  that,  Mr.  Mer 
rick,  I  should  like  to  ask  you  a  question.  You  have  been  very  much 
taxed,  but  I  know  your  ability  to  reply.  You  say  that  the  distinction 
between  a  man  who  accepts  the  office  of  Senator  or  Member  of  the 
House  of  Representatives,  who  is  ineligible  by  holding  another  office, 
and  the  man  who  accepts  and  acts  in  the  office  of  elector,  being  in  the 


same  situation,  is  that  in  one  case  the  disability  or  inhibition  goes  to 
the  power  of  the  State  and  in  the  other  it  does  not.  Now,  if  the  lan 
guage  is  precisely  the  same,  that  no  man  shall  be  elected  to  the  office 
of  Senator  unless  he  is  thirty  years  old  and  no  man  shall  be  appointed 
to  he  office  of  elector  who  holds  another  office*,  where  is  the  difference 
in  the  question  of  power  in  the  State? 

Mr.  MERRICK.  I  am  not  prepared  to  answer  that  the  language 
quoted  is  the  exact  language. 

Mr.  Commissioner  MILLER.  I  do  not  know  that  it  is  the  exact 
language,  for  the  text  is  not  before  me. 

Mr.  MERRICK.  Allow  me  to  look  at  the  Constitution  before  I 
answer  the  question. 

Mr.  Commissioner  MILLER.  Are  not  both  State  officers  in  one 
sen^e  at  least,  both  elected  by  the  power  of  the  State? 

Mr.  MERRICK.  No  person  of  a  certain  description  shall  be  a  mem 
ber  of  either  House.  Says  the  Constitution : 

Ko  Senator  or  Representative  shall,  during  the  time  for  which  he  was  elected,  be 
appointed  to  any  civil  office  under  the  authority  of  the  United  States,  which  shall 
have  been  created,  &c. 

Ko  person  shall  be  a  Representative  who  shall  not  have  attained  the  age  of  twenty- 
five  years. 

No  person  shall  be  a  Senator,  who  shall  not  have  attained  to  the  age  of  thirty 
years. 

But  in  reference  to  the  elec*>rs  it  is  that  "no  person  shall  be  ap 
pointed,"  following  a  previous  grant  of  power  to  appoint ;  and  accord 
ing  to  the  rules  of  law,  wherever  there  is  a  power  given  to  do  an  act 
the  donee  of  the  power  can  only  execute  it  according  to  the  law, 
when  he  pursues  strictly  the  limitations  and  the  directions  of  the 
donor.  You  will  perceive  there  is  a  marked  difference  in  the  two 
cases. 

I  pass,  then,  may  it  please  your  honors,  from  that  subject.  My 
first  inquiry  in  passing  from  it  is  as  to  what  through  the  labors  of  this 
honorable  Commission  we  have  reached  in  reference  to  a  definite 
conclusion  with  regard  to  the  testimony  before  you  for  consideration. 
The  learned  counsel  who  last  addressed  you  seemed  to  be  under  the 
impression,  and  endeavored  to  force  that  impression  upon  your  con 
sideration,  that  by  the  order  passed  no  extrinsic  evidence  should 
be  taken  as  to  certificate  No.  1,  and  therefore  no  evidence  contained 
in  certificates  Nos.  2  and  3  could  be  used  to  invalidate  certificate 
No.  I.  I  do  not  understand  the  order  passed  by  this  tribunal  as 
the  learned  counsel  on  the  other  side  seem  to  have  understood  it.  I 
understand  the  scope  and  meaning  of  that  order  to  be  that  while  you 
in  the  exercise  of  the  powers  of  the  two  Houses  of  Congress  and 
representing  the  Federal  Government  in  that  regard  will  not  go  be 
hind  the  certificates,  so  to  speak,  to  impeach  them  by  extraneous  evi 
dence,  yet  you  will  consider  whatever  the  State  has  sent  you  in  those 
certificates  for  the  purpose  of  ascertaining  which  certificate  repre 
sents  the  true  wishes  and  will  of  the  State.  The  order  is : 

That  no  evidence  will  be  received  except  snch  as  was  laid  before  the  two  Houses 
by  the  President  of  the  Senate  with  the  different  certificates. 

If  what  is  contained  in  the  three  certificates  is  evidence  before  you, 
it  is  evidence  for  all  the  purposes  of  this  case ;  and  whatever  evidence 
there  is  in  certificate  No.  3  to  show  that  that  certificate  contains  the 
names  of  the  persons  duly  appointed  by  the  State  of  Florida  must 
either  directly  or  indirectly  operate  to  invalidate  or  affect  certificate 
No.  1. 

Now  what  is  before  you  in  those  certificates  T  In  certificate  No.  1 
you  have  the  statement  of  Governor  Stearns  as  to  the  appointment 
of  certain  individuals  as  electors,  and  in  certificate  No.  2,  which  the 
counsel  seem  to  treat  with  a  good  deal  of  indignation,  if  not  con 
tempt,  you  have  the  certificate  of  the  attorney-general  of  Florida  as 
to  the  appointment  of  certain  other  parties  as  electors  of  the  State  of 
Florida,  and  the  further  certificate  from  those  electors  that  they 
applied  to  the  governor  of  the  State  for  a  certificate  which  was  re 
fused.  Now,  I  submit  as  a  principle  of  law,  sound  in  itself,  and  in 
reply  to  the  argument  made  by  the  counsel  who  opened  for  the  other 
side,  and  as  a  satisfactory  assurance  against  those  serious  consequences 
that  he  seemed  to  apprehend  from  the  practical  application  and  ex 
perience  of  the  positions  advanced  by  us,  that  where  a  party  entitled 
to  receive  a  piece  of  evidence  from  an  official  applies  for  it  and  does 
not  get  it,  but  is  refused,  he  is  in  as  good  position  before  a  court  of 
justice  as  though  he  had  received  it.  You  cannot  and  will  not  charge 
upon  that  individual  or  upon  the  interests  and  rights  of  the  State  or 
the  nation  which  that  individual  claims  to  represent,  the  consequences 
of  the  delinquency  of  an  official  who  has  failed  or  refused  to  perform 
his  duty.  It  was  not,  as  the  learned  counsel  on  the  other  side  have 
intimated,  that  we  waited  until  after  it  was  seen  how  the  election  had 
gone.  There  is  no  danger  from  this  case  whatever,  as  he  would  sug 
gest,  that  hereafter,  if  the  precedent  of  a  favorable  decision  to  the 
objectors  should  be  reached,  that  door  would  be  thrown  open  to 
fraud  and  to  the  bad  passions  of  men,  to  the  excitements  of  politics, 
and  the  acerbity  of  party  hatreds,  to  interfere  with  the  just  result  of 
popular  expression ;  none  whatever.  On  the  contrary,  what  we  seek 
and  what  we  ask  for  is  that  those  excitements  should  be  suppressed 
by  the  calm  voice  of  reason  of  this  august  tribunal  and  that  men  who 
would  hereafter  seek  to  perpetuate  political  power  through  the  in 
strumentalities  of  fraud,  deceit,  and  bad  practices  should  find  in  the 
history  of  the  Government  recorded  to-day  the  declaration  that  all 
such  iniquitous  proceedings,  schemes,  and  designs  will  be  utter  fail 
ures  and  unavailing  for  the  production  of  any  result.  Instead  of 


54 


ELECTORAL  COMMISSION. 


waiting  to  sec  how  these  elections  had  gone,  as  intimated  by  the  coun 
sel,  or  instead  of  its  being  a  case  from  which  hereafter  parties  might 
he  induced  so  to  Avait,  it  is  apparent  to  this  court  from  these  certifi 
cates  that  the  men  who  Claimed  to  be  elected  as  the  so-called  Tilden 
electors  of  Florida  went  to  the  governor,  carrying  with  them  a  major 
ity  of  the  electors  of  that  State,  and  asked  the  governor  to  give  them 
tlie  certificate  which  under  the  statute  law  of  the  United  States  they 
were  entitled  to  receive.  That  governor,  possibly  influenced  by  some 
of  those  motives  which  the  gentleman  has  so  kindly  ascribed  as  im 
pelling  the  action  of  other  people,  declined  to  give  that  certificate, 
and  they  were  left  to  look  for  the  next  best  evidence  they  could  find. 

Mr.  Commissioner  THURMAN.  If  it  does  not  interrupt  yon,  I 
should  like,  Mr.  Merrick,  to  hear  you  upon  this  point :  Suppose  that 
what  you  call  the  Tilden  electors  had  never  voted  at  all ;  the  question 
I  should  like  to  hear  counsel  upon  is  this :  is  it  competent,  by  subse 
quent  State  proceedings,  to  show  that  the  men  who  did  vote,  the  Hayes 
electors,  had  no  title  to  vote  ? 

Mr.  MERRICK.  Most  unquestionably.  The  State  cannot  have  her 
voice  simulated.  It  happens  that  on  this  occasion  the  true  voice  of 
the  State  was  spoken ;  but  if  it  had  not  been,  there  could  have  been 
no  more  power  and  vigor  in  the  simulated  tones  of  her  voice  to  reach 
the  councils  of  the  Federal  Government  than  there  is  when  those  sim 
ulated  tones  come  ringing  along  with  tfee  true  sentiments  of  her  peo 
ple.  The  State  is  not  to  be  deceived  and  cheated  in  that  way.  She 
might  on  the  day  after  he'r  people  voted  have  instituted  her  quo  u-ar- 
ranto  standing  in  the  presence  of  her  own  judicial  tribunals,  clothed 
with  the  majesty  of  her  executive  power,  and  appealing  to  her  judi 
cial  authority  asked,  "By  what  right  do  you  assume  to  exercise  the 
power  of  this  State?"  So  standing  there  she  could  have  stripped 
from  them  the  garments  they  had  stolen ;  stripped  from  their  shoulders 
her  livery  which  they  had  stolen  "  to  serve  the  devil  in."  It  was  her 
liyery.  She  could  proceed  against  them,  whether  others  spoke  in  her 
behalf  or  not.  In  this  case  the  proceeding  was  by  individuals  under 
circumstances  which  the  State  subsequently  felt  constrained  to  rec 
ognize.  But  in  the  case  supposed  by  Senator  TIIURMAN  the  proceed 
ing  would  have  been  directly  by  the  State  herself  in  her  courts  or 
through  her  Legislature. 

Could  not  she  have  proceeded  in  her  courts,  could  she  in  conjunc 
tion  with  proceedings  in  her  courts  also  have  proceeded  through 
her  Legislature  ?  The  power  is  given  to  the  State  to  appoint  electors 
in  such  manner  as  her  Legislature  may  prescribe.  That  power  so 
given  to  appoint  necessarily  carries  with  it  and  implies  a  power  to 
certify  to  that  appointment,  and  it  is  for  her  to  authenticate  the  ap 
pointment  which  she  makes  in  the  exercise  of  the  power  conferred 
upon  her  under  that  provision  of  the  Constitution.  I  do  not  mean  to 
question  or  deny  that  the  United  States  through  its  statutes  may 
provide  also  for  a  mode  of  authentication,  as  it  has  done ;  but,  as 
seems  to  have  been  concluded  by  the  Commission,  that  mode  of  au 
thentication  is  not  by  any  means  conclusive,  and,  as  I  respectfully 
submit,  is  not  the  best  evidence  of  the  appointment.  The  best  evi 
dence  of  the  appointment  is  from  the  State  herself  in  obedience  to 
her  own  law  and  in  the  execution  of  that  power  of  providing  for  the 
authentication  of  the  appointment  she  is  authorized  to  make.  The 
Legislature  of  the  State  would  have  the  right  in  the  canvass  of  the 
vote  even,  as  over  and  above  any  returning  board,  to  ascertain  who 
were  the  parties  really  and  truly  appointed. 

Mr.  Commissioner  EDMUNDS.  Do  you  maintain  that,  Mr.  Merrick, 
as  an  act  of  legislative  will  notwithstanding  the  previous  law  that 
had  provided  some  other  method  ? 

Mr.  MERRICK.  Yes,  may  it  please  your  honors,  notwithstanding 
the  previous  law  that  may  have  provided  some  other  method.  If  the 
Legislature  of  Florida,  having  the  power  under  the  Constitution  to 
appoint  electors,  found  that  under  the  previous  law  there  had  been 
proceedings  by  the  ministerial  officers  of  the  State  out  of  which  pro 
ceedings  had  cornea  commission  authorizing  individuals  not  appointed 
in  fact  to  exercise  a  power  instead  of  those  who  were  truly  appointed, 
she  might  by  her  Legislature  enact  a  law  to  proceed  not  to  change 
the  relation,  not  to  divest  vested  rights,  not  to  create  new  rights  and 
new  relations,  but  in  the  exercise  of  legislative  authority  to  ascer 
tain  who  had  been  in  point  of  fact  duly  appointed  according  to  ex 
isting  laws. 

Mr.  Commissioner  EDMUNDS.  By  that  you  mean  that  the  Legis 
lature  is  the  judge  of  who  had  been  appointed  in  fact? 

Mr.  MERRICK.  The  Legislature  could  proceed  to  ascertain  who 
had  been  in  point  of  fact  appointed  according  to  the  law  of  the  State, 
and  the  result  of  the  inquiry  coming  from  the  State  is  evidence,  the 
best  evidence,  better  evidence  than  the  mere  certificate  of  the  gover 
nor,  if  it  comes  officially  from  the  State. 

But  in  this  position  in  this  case  I  do  not  need  to  assume  it,  may 
it  please  your  honors ;  and  the  interrogatories  propounded  upon  ab 
stract  questions  evoke  from  me  abstract  answers  that  are  applicable 
to  those  questions  only,  for  in  this  case  the  Legislature  of  Florida 
proceeded  to  execute  the  decree  of  the  courts  of  the  State  of  Florida. 
The  question  had  been  before  her  judicial  tribunals  and  theLe<nsla- 
ture  did  not  primarily  and  of  its  own  motion  enter  into  the  consider 
ation  of  this  question  and  act  upon  it,  but  the  question  having  come 
before  the  courts  of  Florida  and  the  courts  having  construed  the  law 
of  Florida,  the  Legislature  gave  effect  to  that  judicial  construction  of 
the  St?,te  law. 

Now  it  appears  iu  certificate  No.  3  that  the  governor  issued  this 


certificate  in  obedience  to  the  acts  of  the  Legislature  of  Florida  and 
in  obedience  to  the  decision  of  her  courts,  and  this  certificate  No.  3 
is  the  only  certificate  before  this  tribunal  that  contains  a  canvass  of 
the  votes  of  Florida. 

The  learned  counsel  spoke  of  the  incoming  of  a  new  administration 
and  the  displacement  of  an  old,  of  there  being  hostile  political  par 
ties  ;  but  I  apprehend  that  such  a  circumstance  is  a  matter  of  very 
little  importance  in  this  inquiry,  for  the  State  as  a  political  organiza 
tion  goes  on  forever  and  never  dies,  and  whatever  the  governor  who 
was  governor  at  the  time  the  electors  voted  could  do  after  that  event, 
his  successor  can  do  j  ust  as  well.  The  change  of  the  administration 
makes  no  difference  whatever  in  the  gubernatorial  power. 

This  certificate,  then,  contains,  as  I  have  stated,  the  only  canvass 
that  is  before  your  honors  ;  it  contains  a  canvass  of  the  votes  of  the 
people  of  Florida  made  under  the  authority  of  an  act  of  the  Legisla 
ture  of  Florida.  There  is  no  other  canvass  here.  It  states  that  the 
canvass  has  been  made  and  that  a  certain  result  has  been  reached  in 
virtue  of  a  decision  of  the  court  of  last  resort  in  Florida  ;  and  these 
documents  are  here  under  the  sanction  of  State  authority.  Now  how 
far  will  this  tribunal  regard  this  paper  as  representing  the  facts  in 
reference  to  the  condition  of  these  two  claimants  who  hold  these  cer 
tificates,  the  first  certificate  unaccompanied,  the  second  accompanied 
by  this  evidence  ? 

I  suppose — and  these  remarks  are  made  in  contemplation  of  that 
position — that  your  honors,  according  to  the  rule  laid  down,  have 
concluded  that  the  right  to  ascertain  who  were  really  the  agents  of 
the  State,  who  were  really  authorized  to  represent  the  State,  was 
limited  to  the  evidence  laid  before  the  two  Houses  of  Congress  and 
in  or  accompanying  the  certificates.  According  to  this  certificate  No. 
3,  a  canvass  of  the  votes  of  Florida  was  made  under  legislative  en 
actment  iu  pursuance  of  her  judicial  decision.  I  speak  not  now  of 
the  quo  warranto  ;  I  speak  of  a  case  that  occurred  prior  to  the  decis 
ion  of  the  quo  tvarranto.  How  far  are  we  bound  in  this  regard  by  the 
j  udicial  decision  of  the  court  of  Florida  ?  The  learned  counsel  who 
addressed  this  Commission  last  on  behalf  of  the  other  side  seemed 
disposed  somewhat  to  sneer  at  the  idea  that  the  tribunals  of  the 
United  States  should  be  bound  by  the  decisions  of  the  courts  of  the 
State  in  matters  so  grave  as  this.  For  my  part,  it  seems  to  me  that 
the  graver  the  subject,  and  the  higher  it  rises,  the  more  binding  be 
come  the  obligations  of  the  law;  and  I  submit  to  your  honors  as  a 
proposition  of  law  that  in  reference  to  all  matters  having  local  con 
cern  of  a  statutory  character,  in  reference  to  all  local  municipal  laws 
of  the  States  upon  all  subjects,  the  Supreme  Court  of  the  United 
States  without  exception  invariably  accepts  as  final  and  conclusive 
the  decisions  of  the  courts  of  the  State,  even  although  it  may  not  ap 
prove  the  correctness  of  their  logic  or  the  wisdom  of  their  conclusion. 

1  beg  leave  to  refer  to  one  or  two  cases  upon  that  subject.    In  the 
case  of  the  Tioga  Railroad  Company  vs.  The  Blossburg  Railroad  in 
20  Wallace,  143,  the  court  uses  the  following  language : 

These  decisions  upon  the  construction  of  the  statute  are  binding  upon  us  what 
ever  we  may  think  of  their  soundness  on  general  principles. 

In  those  three  lines  is  contained  the  rule  I  have  just  now  indicated 
to  your  honors.  This  was  an  opinion  in  reference  to  the  operation 
under  certain  conditions  and  circumstances  of  the  law  of  limitations 
of  New  York  ;  and  the  learned  justice,  in  delivering  the  opinion  on  be 
half  of  the  court  and  accepting  it  of  course  for  himself,  announced 
the  doctrine  that  the  decisions  of  the  State  tribunals  "  upon  the  con 
struction  of  its  statutes  are  binding  upon"  the  Supreme  Court  "  what 
ever  we  may  think  of  their  soundness." 

The  opinion  was  delivered  by  his  honor  Mr.  Justice  Bradley,  follow 
ing  a  long  line  of  preceding  opinions  of  the  same  character. 

In  the  case  of  Green  vs.  Neal's  lessees,  6  Peters,  the  same  doctrine 
was  announced.  In  the  case  of  the  township  of  Elmwood  vs.  Macy, 

2  Otto,  294,  the  same  rule  was  announced.     It  is  unnecessary  for  me 
to  read  from  the  case,  for  I  shall  have  occasion  to  refer  presently  to 
the  dissenting  opinion  in  the  case  on  another  point. 

In  the  case  of  Thompson  rs.  Whitman,  18  Wallace,  467,  where  the 
opinion  was  delivered  by  his  honor  Mr.  Justice  Bradley,  the  same  gen 
eral  principle  was  announced : 

Where  a  court  has  jurisdiction,  it  has  a  right  to  decide  every  question  which 
occurs  in  the  cause,  and  whether  its  decision  be  correct  or  otherwise,  its  judgment, 
until  reversed,  is  regarded  as  binding  in  every  other  court.  But,  if  it  act  without 
authority,  its  judgments  and  orders  are  regarded  as  nullities. 

And  in  the  case  in  4  Wallace  referred  to  by  Mr.  Green  in  his  open 
ing  to-day  the  same  rule  is  announced,  his  honor  Mr.  Justice  Field, 
if  I  mistake  not,  giving  the  opinion  of  the  court,  that  the  State  de 
cision  is  incorporated  into  the  State  statute,  and  that  the  courts  of 
the  United  States  in  considering  and  applying  the  statute  apply  it 
as  modified,  enlarged,  or  limited  by  that  decision,  giving  to  the  de 
cision  the  same  effect  as  though  in  so  many  words  it  had  been  incor 
porated  into  the  statute  at  the  time  of  the  passage  of  the  act. 

After  submitting  these  few  suggestions  in  reference  to  the  author 
ity  of  the  State  courts,  I  beg  leave  to  suggest  some  views  in  reference 
as  to  the  time  of  the  appointment  and  as  to  what  is  the  appointment. 

The  learned  counsel  on  the  other  side  have  regarded  the  appoint 
ment  as  made  up  of  several  acts  reaching  their  culmination  in  the 
giving  of  the  certificates  by  the  governor  at  or  about  the  time  of  the 
meeting  of  the  electoral  college.  That  certificate  has  nothing  to  do 
with  the  appointment  whatever,  no  relation  to  it  in  any  way  or  shape, 


ELECTORAL  COMMISSION. 


55 


and  I  submit  is  simply  evidence  of  a  previously  existing  fact  which 
became  a  consummated  fact  on  the  day  of  election  at  the  hour  when 
the  polls  were  closed.  A  certificate,  whether  it  be  the  certificate  of 
the  governor,  or  of  the  attorney -general,  or  of  the  canvassing  board, 
is  only  evidence  that  the  appointment  has  been  made  by  the  people, 
but  itself  is  no  part  of  the  appointment,  in  no  way  essential  to  it 
ind  in  no  way  connected  with  it.  It  seems  to  be  the  theory  and  the 
basis  of  the  argument  of  the  counsel  who  preceded  mo  that  this  ap 
pointment  had  depended  in  some  way  upon  the  niuninient  of  the 
title,  and  if  it  did  not 

Mr.  EVARTS.  I  spoke  of  the  governor's  certificate  under  the  law 
of  Florida  which  was  given  to  each  elector  as  his  warrant  to  execute 
his  duty,  and  not  the  congressional  certificate. 

Mr.  MERRICK.  Even  that  has  as  little  reference  to  the  appoint 
ment  as  the  certificates  required  by  Congress ;  for  these  certificates, 
each  of  them,  are  only  evidence  that  something  has  been  done — .are 
evidence  that  the  individual  to  whom  they  are  given  has  been  in 
vested  with  a  power,  not  granted  by  the  governor,  not  granted  by 
the  executive  power  of  the  State,  but  that  he  has  been  invested  with 
a  power  gran  ted  by  the  people,  and  of  which  grant  this  shall  be  the 
muniment  of  title. 

Now,  may  it  please  your  honors,  this  principle  has  been  very  clearly 
stated  in  several  cases,  to  one  or  two  of  which  I  beg  leave  to  refer, 
among  them  the  twenty-seventh  volume  of  New  York  Reports,  the 
case  of  The  People  vs.  Pease,  at  pages  54  and  55 : 

It  is  made  the  duty  of  the  board  of  county  canvassers,  upon  the  statement  of  votes 
given,  to  determine  what  person — 

Very  similar  to  the  law  organizing  some  of  our  present  returning 
boards — 

to  determine  what  person,  by  the  greatest  number  of  votes,  has  been  duly  elected 
to  any  office  mentioned  in  said  statement.  (1  Kevised  Statutes,  fifth  edition,  page 
438,  section  10.)  County  treasurers  of  the  several  counties  of  this  State  are  to  be 
elected  at  a  general  election,  and  hold  their  office  for  three  years.  (Ibid,  page  400, 
section  17.)  And  the  certificate  of  the  board  of  canvassers  authorized  to  canvass 
the  votes  given  for  any  elective  office  is  made  evidence  of  the  election  of  the  per 
son  therein  declared  to  have  been  elected. 

*****  *  * 

"What  is  it  that  confers  title  to  the  office,  and  the  legal  right  to  the  reception  of 
its  emoluments  ?  It  surely  is  the  fact  that  the  greatest  number  of  qualified  voters 
have  so  declared  their  wishes  at  an  election  held  pursuant  to  law.  It  is  not  the  can 
vass,  or  estimate,  or  certificate  which  determines  the  right.  These  are  only  evi 
dences  of  the  right,  but  the  truth  may  be  inquired  into,  and  the  very  right  ascer 
tained.  "When  it  is  so  ascertained,  the  legal  consequences  follow  that  the  person 
usurping  the  office  is  ousted,  the  person  legally  entitled  takes  the  office  and  its  fees, 
&c.,  and  recovers  from  the  usurper  the  fees  or  emoluments  belonging  to.the  office 
received  by  him  by  means  of  his  usurpation,  thereof. 

It  is  not  the  canvass,  then,  or  the  estimates,  or  the  certificates  which 
determine  the  right.  The  right  is  determined  by  the  vote  of  the  peo 
ple,  and  the  canvass  is  only  to  ascertain  what  that  vote  was  and  the 
certificate  is  evidence  as  to  who  received  the  larger  majority  of  votes. 

Mr.  Commissioner  EDMUNDS.  Was  that  a  quo  warranto,  Mr.  Mer- 
rick  f 

Mr.  MERRICK.  It  was  a  proceeding  by  quo  warranto.  There  are 
other  authorities  of  a  similar  nature  to  which  I  will  refer  the  court, 
and  taking  a  suggestion  from  the  inquiry  made  by  the  Senator,  I 
would  remark  that  it  is  quite  immaterial  whether  it  was  a  proceeding 
by  quo  ivaii-anto  or  not,  tor  the  same  rule  would  apply  in  all  cases, 
ban-ing  the  fact  claimed  by  the  other  side  in  behalf  of  a  proceeding 
or  an  action  involving  the  acts  of  an  officer  de  facto.  The  rule  is  the 
same,  no  matter  what  may  be  the  action,  as  to  whether  the  appoint 
ment  is  derived  from  executive  appointment  or  derived  from  the 
people.  By  the  act  of  the  Legislature  of  Florida,  which  Legislature 
was  authorized  to  appoint  her  electors  in  such  a  manner  as  it  might 
deem  proper,  it  was  provided  that  the  electors  should  be  appointed 
by  the  people.  They  were  voted  for  and  appointed  by  the  people. 
The  State  did  not  provide  that  her  electors  should  be  appointed  by 
her  executive  or  by  her  returning  board,  but  that  they  should  be  ap 
pointed  by  the  people;  and  whatever  othei?  machinery  of  the  govern 
ment  was  dedicated  to  use  in  this  direction  was  machinery  dedicated 
to  the  office  of  ascertaining  whom  the  people  had  appointed,  and  pro 
viding  those  whom  the  people  had  appointed  with  the  proper  muni 
ments  of  title  in  order  that  no  one  might  be  deceived  or  led  astray, 
and  no  inconvenience  might  result  from  their  claim  to  the  official 
position. 

Mr.  Commissioner  THURMAN.  Mr.  Merrick,  are  you  not  arguing 
a  question  that  is  settled  by  the  Constitution  and  the  act  of  Con 
gress  ?  The  Constitution  says  that  Congress  may  determine  the  time 
of  choosing  the  electors.  The  act  of  Congress  says : 

Except  in  case  of  a  presidential  election  prior  to  the  ordinary  period,  as  speci 
fied  in  sections  147  to  149,  inclusive,  when  the  offices  of  President  and  "Vice-Pres 
ident  both  become  vacant,  the  electors  of  President  and  Vice-President  shall  be 
appointed,  in  each  State,  on  the  Tuesday  next  after  the  first  Monday  in  Novem 
ber,  in  every  fourth  year  succeeding  every  election  of  a  President  and  Vice-Presi- 
deut. 

They  are  to  be  appointed  on  that  day. 

Mr.  MERRICK.  The  Senator  is  correct.  I  am  engaged  in  possibly 
a  useless  discussion  on  this  point.  The  electors  are  to  be  appointed 
on  the  day  specified,  and  being  appointed  on  that  day  whatever  trans 
pires  after  that  day  with  regard  to  them  has  relation  to  that  ap 
pointment  and  is  simply  evidence  of  that  appointment.  It  is  hardly 
necessary  that  I  should  refer  your  honors  to  any  other  authorities 
upon  that  subject  after  Senator  THURMAN'S  remark. 


May  it  please  your  honors,  a  word  or  two,  for  my  time  is  rapidly  pass 
ing,  in  reference  to  the  writ  of  quo  warranto  which  is  in  this  case.  The 
counsel  on  the  other  side  have  stated  that  they  considered  that  the 
quo  warranto  judgment  was  no  longer  before  the  Commission.  I  un 
derstand  the  order  of  the  court  to  refer  to  the  certificates  and  to  state 
that  all  the  certificates  contain  were  evidence,  and  as  certificate  No.  3 
makes  recital  of  the  fact  of  the  quo  warranto  as  being  the  basis  of  ex 
ecutive  action  in  issuing  the  certificate,  the  judgment  on  this  quo  war 
ranto  is  before  this  Commission.  It  is  before  the  Commission  as  a 
judgment  of  the  court  of  the  State,  independent  of  this  certificate.  We 
have  that  judgment  here  in  a  proper  form ;  and  although  it  may  not 
be  proper  under  the  order  to  use  it  before  this  court  as  evidence  in 
this  particular  case  as  to  these  parties  as  a  plea,  it  is  before  the  court 
as  evidence  of  what  is  the  construction  of  the  law  of  Florida  by  her 
judicial  tribunals. 

The  PRESIDENT.  I  have  already  allowed  you  five  minutes  for  in 
terruptions.  •  I  must  consider  your  time  as  closed. 

Mr.  Commissioner  EDMUNDS.  Mr.  Merrick  has  been  interrupted 
so  much  that  I  think  he  ought  to  have  five  minutes  more. 

Mr.  MERRICK.  I  am  much  obliged  to  the  Senator  for  his  consid 
eration  ;  and  while  I  accept  it  with  grateful  acknowledgment,  I  beg 
to  say  that  the  time  allowed  would  scarcely  compensate  for  the 
interruptions.  They  have  diverted  me  to  such  an  extent  from  the 
line  of  argument  I  was  pursuing  as  to  have  entirely  broken  the  direc 
tion  of  thought  and  reasoning  I  had  intended  to  follow. 

I  submit  that  the  quo  warranto  is  then  before  you  at  least  as  evi 
dence  of  what  is  the  law  of  Florida.  If  it  is  not  evidence  as  to  the 
title  of  these  particular  individuals,  it  is  before  you  as  evidence  of 
the  law  of  Florida,  and  it  tells  you  that  according  to  that  law  of 
Florida  the  so-called  Hayes  electors  were  not  appointed  and  the  Til- 
den  electors  were  appointed ;  it  tells  you  that  according  to  the  law 
of  Florida  the  so-called  Tilden  electors  were  appointed,  as  it  has  found 
upon  an  issue  of  fact,  to  which  issue  of  fact  it  has  applied  the  law. 
If  you  will  look  into  the  record  of  quo  warranto  you  will  find  that  it 
was  not  decided  upon  a  simple  demurrer,  not  upon  a  simple  question 
of  jurisdiction,  although  the  court  decided  that  it  had  jurisdiction, 
that  question  being  directly  brought  before  it;  but  it  was  decided 
upon  the  facts  in  this  case.  A  plea  having  been  interposed  by  the  re 
spondents  in  the  quo  warranto  to  the  effect  that  they  were  the  duly  elect 
ed  electors  and  had  received  a  majority  of  the  votes  of  the  people,  and 
issue  being  joined  upon  that  plea,  a  jury  being  waived  by  agreement  of 
counsel  and  the  cause  having  been  submitted  to  the  court  to  be  tried 
upon  the  facts,  it  was  tried  upon  the  facts.  All  the  facts  were  brought 
before  the  court.  The  canvass  was  before  the  court ;  the  county  re 
turns  were  before  the  court ;  all  the  evidence  that  the  Hayes  electors 
desired  to  bring  before  the  court  to  have  that  fact  adjudicated  was 
there ;  and  upon  all  that  evidence  so  before  that  court  that  court 
decided  that  according  to  the  law  of  Florida  as  applied  to  the  case 
made  before  it  the  Hayes  electors  were  not  appointed,  and  the  Tilden 
electors  were  appointed. 

I  then  submit,  may  it  please  your  honors,  in  reference  to  this  quo 
warranto  in  the  first  instance,  that  it  is  before  you  as  part  of  cer 
tificate  No.  3,  so  intimately  connected  with  it  and  interwoven  with 
it  that  you  cannot  fail  to  regard  it  as  part  of  the  legitimate  evidence 
to  be  considered  when  you  come  to  determine  which  of  these  certifi 
cates  you  will  accept,  and  that  if  it  is  not  before  you  in  that  char 
acter  it  is  then  before  you  as  a  judicial  decision  of  the  courts  of  Florida 
bearing  testimony  as  to  what  is  the  law  of  Florida,  not  in  its  general 
conclusion  and  general  result,  but  bearing  testimony  as  to  that  law  in 
specific  details  found  throughout  the  case  as  the  various  points  were 
made  and  presented,  and  as  you  will  find  them  decided  upon  looking 
into  the  record. 

May  it  please  your  honors,!  have  endeavored  in  the  remarks  I 
have  made  to  present  this  case,  as  far  as  I  possibly  could,  as  I  would 
any  ordinary  case  at  law,  keeping  far  away  from  my  heart  and  lips 
all  feeling  or  expression  of  a  partisan  character.  If  in  the  heat  of 
the  argument  or  in  response  to  inquiries  made  of  me  I  shoiild  have 
broken  in  any  particular  the  resolution  I  had  formed  in  that  regard, 
I  can  only  beg  pardon  of  the  sacred  traditions  that  cluster  about  this 
chamber  of  justice. 

Mr.  GREEN.  The  brief  to  which  I  alluded  in  my  argument  is 
now  here,  and  with  the  permission  of  the  Commission  I  will  have  it 
distributed  among  its  members. 

The  PRESIDENT.    Certainly. 

Mr.  GREEN.  I  will  also  ask  permission  to  state  that  the  brief 
which  had  been  prepared  for  what  is  known  as  the  Oregon  case,  to 
which  Judge  Hoadly  alluded  in  his  argument,  has  not  yet  come  from 
the  printer ;  but  that  we  expect  to  have  it  during  the  afternoon.  He 
requests  me  also  to  state  thatthat  brief  having  been  prepared  for  use  in 
the  Oregon  case  necessarily  contains  some  matters  which  he  would  not 
use  in  this  argument  if  he  had  had  time  to  prepare  a  brief  specially 
for  this  case. 

The  PRESIDENT.  I  will  state  to  the  bar  that  there  will  be  no  f  ur- 
ther  public  business  transacted  to-day  by  he  Commission. 

Mr.  Commissioner  EDMUNDS.  I  move  that  the  Commission  take 
a  recess  for  half  an  hour. 

Mr.  Commissioner  PAYNE.  I  move  a  substitute,  that  the  Commis 
sion  adjourn  until  to-morrow  morning  at  ten  o'clock. 

Mr.  Comjnissioner  EDMUNDS.  On  that  motion  I  ask  for  the  yeas 
and  nays. 


56 


ELECTORAL  COMMISSION. 


The  PRESIDENT.  The  motion  to  adjourn  takes  precedence.  The 
question  is  on  the  motion  to  adjourn  until  to-morrow  at  ten  o'clock. 

The  question  being  taken  by  yeas  and  nays,  resulted— yeas  8,  nays 
7;  as  follows: 

Those  who  voted  in  the  affirmative  are  :  Messrs.  Abbott,  Bayard, 
Bradley,  Clifford,  Field,  Hunton,  Payne,  and  Thurinan— 8. 

Those  who  voted  in  the  negative  are :  Messrs.  Edmunds,  Freling- 
huysen,  Garfield,  Hoar,  Miller,  Morton,  and  Strong— 7. 

So  the  motion  was  agreed  to;  and  (at  four  o'clock  and  fifty  minutes 
p.  in.)  the  Commission  adjourned  until  to-morrow  at  ten  o'clock  a.  m. 


FRIDAY,  February  9,  1877. 

The  Commission  met  at  ten  o'clock  a.  m.  pursuant  to  adjournment 
all  the  members  being  present. 

The  Journal  of  yesterday  was  read. 

Mr.  Commissioner  GARFIELD.  Mr.  President,  I  "wish  to  call, 
attention  to  the  language  of  the  minutes,  to  see  whether  it  is  not  bet 
ter  to  correct  it.  It  speaks  of  you  as  "  the  Presiding  Justice."  The 
query  is  whether  your  proper  title  is  not  that  of  "  President."  It 
seems  to  me  the  language  employed  might  carry  the  implication  that 
we  were  in  some  sense  a  court;  that  we  were  all  justices,  and  you 
the  presiding  justice.  It  is  a  mere  matter  of  form,  however. 

The  PRESIDENT.  I  atn  content  with  it  either  way  as  to  myself. 
It  commenced  in  the  way  the  gentleman  indicates,  and  perhaps  it  is 
hardly  worth  while  to  change  it  now. 

Mr.  Commissioner  MORTON.  It  seems  to  me  that  the  members 
should  not  be  designated  as  Justices,  or  Senators,  or  Representatives, 
but  simply  as  Commissioners. 

The  PRESIDENT.  Probably  they  should  be  if  they  have  not  been. 
I  am  content  with  it  either  way  myself.  The  language  of  the  law 
is  "  President,"  undoubtedly. 

Mr.  Commissioner  MORTON.    That  is  your  title,  sir. 

The  PRESIDENT.  If  that  be  so,  the  other  members  of  the  Com 
mission  are  Commissioners.  Unless  otherwise  ordered,  as  that  seems 
to  be  the  sense  of  the  Commission,  the  Chair  will  direct  the  minutes 
to  be  hereafter  so  made.  The  case  in  regard  to  Florida  having  been 
submitted,  shall  the  doors  be  closed  for  consultation  ? 

Mr.  Commissioner  MORTON.    I  move  that  the  doors  be  now  closed. 

The  motion  was  agreed  to  ;  and  the  Commission  proceeded  to  de 
liberate  with  closed  doors  in  the  matter  of  the  electoral  vote  of  the 
State  of  Florida. 

After  debate, 

Mr.  Commissioner  THURMAN  (at  one  o'clock  and  thirty-seven  min 
utes  p.  m.)  moved  that  the  Commission  take  a  recess  for  half  an  hour. 

The  motion  was  agreed  to. 

At  two  o'clock  and  seven  minutes  p.  m.,  the  recess  having  expired, 
the  Commission  resumed  its  session  for  deliberation. 

After  further  debate, 

Mr.  Commissioner  STRONG  moved  that  general  debate  on  the  ques 
tion  pending  be  closed  on  or  before  six  o'clock  p.  m. 

The  motion  was  agreed  to. 

Mr.  Commissioner  EDMUNDS  moved  that  after  six  o'clock  p.  m. 
each  Commissioner  be  allowed  to  speak  but  once,  and  not  longer  than 
five  minutes. 

The  motion  was  agreed  to. 

Mr.  Commissioner  THURMAN  offered  the  following  resolution  : 

Resolved,  That  F.  C.  Humphreys  was  not  a  United  States  shipping  commissioner 
on  the  7th  day  of  November,  1876. 

After  debate, 

Mr.  Commissioner  THURMAN  withdrew  his  resolution. 

After  further  debate, 

Mr.  Commissioner  EDMUNDS  offered  the  following  resolution  : 

Resolved,  That  the  following  bo  adopted  as  the  decision  of  the  Commission  in  the 
case  of  Florida : 

ELECTORAL  COMMISSION, 
Washington,  D.  0.,  February  9,  A.  D.  1877. 

To  the  President  of  the  Senate  of  the  United  States,  presiding  in  the  meeting  of 
the  two  Houses  of  Congress,  under  the  act  of  Congress  entitled  "An  act  to  pro 
vide  for  and  regulate  the  counting  of  the  votes  for  President  and  Vice-President, 
and  the  decision  of  questions  arising  thereon,  for  the  term  commencing  March  4, 
A.  D.  1877,"  approved  January  29,  A.  D.  1877: 

The  Electoral  Commission  mentioned  in  said  act  having  received  certain  certifi 
cates  and  papers  purporting  to  be  certificates,  and  papers  accompanying  the  same, 
of  the  electoral  votes  from  the  State  of  Florida,  and  the  objections  thereto  submit 
ted  to  it  under  said  act,  now  report  that  it  has  duly  considered  the  same,  pursuant 
to  said  act,  and  has  decided  and  does  hereby  decide,  that  the  votes  of  Frederick 
C.  Humphreys,  Charles  H.  Pearce,  William  H.  Holden,  and  Thomas  W.  Long, 
named  in  the  certificate  of  M.  L.  Stearns,  governor  of  said  State,  which  votes  are 
certified  by  said  persons,  as  appears  by  the  certificate  submitted  to  the  Commission, 
as  aforesaid,  and  marked  "number  one,"  by  said  Commission,  and  herewith  re 
turned,  are  the  votes  provided  for  by  the  Constitution  of  the  United  States,  and  that 
the  same  ai-e  lawfully  to  be  counted  as  therein  certified,  namely  :  Four  (4)  votes  for 
Rutherford  B.  Hayes,  of  the  State  of  Ohio,  for  President,  and  four  (4)  votes  for 
William  A.  Wheeler,  of  the  State  of  New  York,  for  Vice-President. 

The  Commission  also  has  decided,  and  hereby  decides  and  reports,  that  the  four 
persons  first  before  named  were  duly  appointed  electors  in  and  by  said  State  of 
Florida. 

The  brief  ground  of  this  decision  is,  that  it  appears  upon  such  evidence  as  by 
the  Constitution  and  the  law  named  in  said  act  of  Congress  is  competent  and  per 
tinent  to  the  consideration  of  the  subject,  that  the  before-mentioned  electors  ap 
pear  to  have  been  lawfully  elected  such  electors  of  President  and  Vice-President 


of  the  United  States,  for  the  term  beginning  March  4, 1877,  of  the  State  of  Florida, 
and  that  they  voted  as  such  at  the  time  and  in  the  manner  provided  for  by  the 
Constitution  of  the  United  States  and  the  law. 
The  Commission  has  also  decided,  and  does  hereby  decide  and  report,  that,  as  a 


certificates  or  the  votes  provided  for  by  the  Constitution  of  the  United  States  and 
that  they  ought  not  to  be  counted  as  such. 
Done  at  Washington  the  day  and  year  first  above  written. 

Mr.  Commissioner  HUNTON  offered  the  following  as  a  substitute : 
That  the  electors  named  in  certificate  No.  2,  to  wit,  Wilkinson  Call,  J.  E.  Yonge, 
Robert  Bullock,  and  Robert  B.  Hilton,  are  the  four  persons  who  were  duly  appointed 
electors  by  the  State  of  Florida  on  the  7th  day  of  November,  1876,  and  that  their 
votes  as  certified  in  such  certificate  are  the  votes  provided  for  by  the  Constitution 
of  the  United  States. 

The  question  being  on  the  adoption  of  the  substitute,  it  was  de 
cided  in  the  negative : 

YEAS 7 

NAYS 8 

Those  who  voted  in  the  affirmative  were  :  Messrs.  Abbott,  Bayard, 
Clifford,  Field,  Hunton,  Payne,  and  Thurman — 7. 

Those  who  voted  in  the  negative  were :  Messrs.  Bradley,  Edmunds, 
Frelinghuysen,  Garfield,  Hoar,  Miller,  Morton,  and  Strong— 8. 

Thereupon  the  resolution  offered  by  Mr.  Commissioner  EDMUNDS 
was  withdrawn. 

Mr.  Commissioner  GARFIELD  offered  the  following  resolutions : 

Resolved,  That  the  four  persons,  to  wit,  Frederick  C.  Humphreys,  Charles  H. 
Pearce,  William  A.  Holden,  and  Thomas  W.  Long  were  duly  appointed  electors  of 
President  and  Vice-President  for  the  State  of  Florida,  and  that  the  votes  cast  by 
the  aforesaid  four  persons  are  the  votes  provided  for  by  the  Constitution  of  the 
United  States. 

Resolved,  That  Mr.  EDMUNDS,  Mr.  BRADLEY,  and  Mr.  MILLER  be  appointed  a 
committee  to  draft  a  report  of  the  action  of  the  Commission,  as  required  by  law. 

The  question  being  on  the  adoption  of  the  first  resolution,  it  was 
decided  in  the  affirmative : 

YEAS 8 

NAYS 7 

Those  who  voted  in  the  affirmative  were :  Messrs.  Bradley,  Ed 
munds,  Frelinghuysen,  Garfield,  Hoar,  Miller,  Morton,  and  Strong — 8. 

Those  who  voted  in  the  negative  were :  Messrs.  Abbott,  Bayard, 
Clifford,  Field,  Hunton,  Payne,  and  Thurman — 7. 

The  question  being  on  the  adoption  of  the  second  resolution  offered 
by  Mr.  Commissioner  GARFIELD,  it  was  decided  in  the  affirmative. 

Mr.  Commissioner  EDMUNDS  (at  six  o'clock  and  five  minutes  p. 
m.)  moved  that  the  Commission  take  a  recess  for  one  hour. 

The  motion  was  agreed  to ;  and  a  recess  was  accordingly  taken 
until  seven  o'clock  and  five  minutes  p.  m. 

The  recess  having  expired,  the  Commission  resumed  its  session  for 
deliberation. 

Mr.  Commissioner  EDMUNDS,  on  behalf  of  committee  appointed 
to  prepare  a  report  of  the  Commission  in  the  matter  of  the  electoral 
vote  of  the  State  of  Florida,  offered  the  following  order : 

Ordered,  That  the  following  be  adopted  as  the  final  decision  and  report  in  the 
matters  submitted  to  the  Commission  as  to  the  electoral  vote  of  the  State  of  Florida : 

ELECTORAL  COMMISSION, 
Washington,  D.  C.,  February  9,  A.  D.  1877. 
To  the  President  of  the  Senate  of  the  United  States,  presiding  in  the  meeting  of  the 

two  Houses  of  Congress,  under  the  act  of  Congress  entitled  "  An  act  to  provide 

for  and  regulate  the  counting  of  the  votes  for  President  and  Vice-President,  and 

the  decision  of  questions  arising  thereon,  for  the  term  commencing  March  4,  A. 

D.  1877,"  approved  January  29,  A.  D.  1877 : 

The  Electoral  Commission  mentioned  in  said  act,  having  received  certain  certifi 
cates  and  papers  purporting  to  be  certificates,  and  papers  accompanying  the  same, 
of  the  electoral  votes  from  the  State  of  Florida,  and  the  objections  thereto  submit 
ted  to  it  under  said  act,  now  report  that  it  has  duly  considered  the  same,  pursuant 
to  said  act,  and  has  decided,  and  does  hereby  decide,  that  the  votes  of  Frederick  C. 
Humphreys,  Charles  H.  Pearce,  William  H.  Holden.  and  Thomas  W.  Long  named 
in  the  certificate  of  M.  L.  Steasns,  governor  of  said  State,  which  votes  are  certified 
by  said  persons  as  appears  by  the  certificate  submitted  to  the  Commission,  as  afore 
said,  and  marked  ''number  one"  by  said  Commission,  and  herewith  returned,  are  the 
votes  provided  for  by  the  Constitution  of  the  United  States,  and  that  the  same  are 
lawfully  to  be  counted  as  therein  certified,  namely  :  four  (4)  votes  for  Rutherford 
B.  Hayes,  of  the  State  of  Ohio,  for  President,  and  four  (4)  votes  for  William  A. 
Wheeler,  of  the  State  of  New  York,  for  Vice-President.  The  Commission  also  has 
decided,  and  hereby  decides  and  reports,  that  the  four  persons  first  before  named 
were  duly  appointed  electors  in  and  by  said  State  of  Florida. 

The  ground  of  this  decision,  stated  briefly,  as  required  by  said  act,  is  as  follows : 

That  it  is  not  competent  under  the  Constitution  and  the  law,  as  it  existed  at  the 
date  of  the  passage  of  said  act,  to  go  into  evidence  aliunde  on  the  papers  opened 
by  the  President  of  the  Senate  in  the  presence  of  the  two  Houses  to  prove  that 
other  persons  than  those  regularly  certified  to  by  the  governor  of  the  Stale  of 
Florida,  in  and  according  to  the  determination  and  declaration  of  their  appoint 
ment  by  the  board  of  State  canvassers  of  said  State  prior  to  the  time  required  for 
the  performance  of  their  duties,  had  been  appointed  electors,  or  by  counter-proof 
to  show  that  they  had  not,  and  that  all  proceedings  of  the  courts  or  acts  of  the 
Legislature,  or  of  the  executive  of  Florida,  subsequent  to  the  casting  of  the  votes 
of  the  electors  on  the  prescribed  day  are  inadmissible  for  any  such  purpose. 

As  to  the  objection  made  to  the  eligibility  of  Mr.  Humphreys,  the  Commission  is 
of  opinion  that,  without  reference  to  the  question  of  the  effect  of  the  vote  of  an  in 
eligible  elector,  the  evidence  does  not  show  that  he  held  the  office  of  shipping  com 
missioner  on  the  day  when  the  electors  were  appointed. 

The  Commission  has  also  decided,  and  does  hereby  decide  and  report,  that,  as  a 
consequence  of  the  foregoing,  and  upon  the  grounds  before  stated,  neither  of  the 
papers  purporting  to  be  certificates  of  the  electoral  votes  of  said  State  of  Florida, 
numbered  two  (2)  and  three  (3)  by  the  Commission,  and  herewith  returned,  are  the 
certificates  of  the  votes  provided  for  by  the  Constitution  of  the  United  States,  and 
that  they  ought  not  to  be  counted  as  such. 

Done  at  Washington,  the  day  and  year  first  above  •written. 


ELECTORAL  COMMISSION. 


57 


The  question  being  on  the  adoption  of  the  report  of  the  Commission, 
it  was  decided  in  the  affirmative: 

YEAS 8 

NAYS 7 

Those  who  voted  in  the  affirmative  were :  Messrs.  Bradley,  Ed 
munds,  Frelinghuysen,  Garfield,  Hoar,  Miller,  Morton,  and  Strong — 8. 
Those  who  voted  in  the  negative  were :  Messrs.  Abbott,  Bayard, 
Clifford,  Field,  Hunton,  Payne,  and  Thurman. 

So  the  report  of  the  Commission  was  adopted;  and  said  decision 
and  report  was  thereupon  signed  by  the  members  agreeing  therein, 
as  follows : 

SAM.  F.  MILLER, 
W.  STRONG, 
JOSEPH  P.  BRADLEY, 
GEO.  F.  EDMUNDS, 
.  .  •   • ,  O.  P.  MORTON, 

FRED'S  T.  FRELTNGHUYSEN, 
JAMES  A.  GARFIELD, 
GEORGE  F.  HOAR, 

Commissioners. 

Mr.  Commissioner  EDMUNDS  moved  the  following : 
Ordered,  That  the  President  transmit  a  letter  to  the  President  of  the  Senate,  in 
the  following  words: 

WASHINGTON,  D.  C.,  February  9, 1877. 

SIR  :  I  am  directed  by  the  Electoral  Commission  to  inform  the  Senate  that  it  has 
considered  and  decided  upon  the  matters  submitted  to  it,  under  the  act  of  Congress 
concerning  the  same,  touching  the  electoral  votes  from  the  State  of  Florida,  and 
herewith,  l>y  direction  of  said  Commission,  I  transmit  to  you  the  said  decision,  in 
writing,  signed  by  the  members  agreeing  therein,  to  be  read  at  the  meeting  of  the 
two  Houses,  according  to  said  act.  All  the  certificates  and  papers  sent  to  the  Com 
mission  by  the  President  of  the  Senate  are  herewith  returned. 

Hon.  THOMAS  W.  FERRY, 

President  of  the  Senate. 

And  that  he  deliver  to  him  therewith  the  written  decision  of  the  Commission 
this  day  made,  and  all  the  certificates,  papers,  and  objections  in  the  case  of  Florida. 

The  order  was  adopted  and  the  letter  was  thereupon  signed  ac 
cordingly  by  "NATHAN  CLIFFORD,  President  of  the  Commission." 
Mr.  Commissioner  EDMUNDS  moved  the  following: 

Ordered,  That  the  President  of  the  Commission  transmit  to  the  Speaker  of  the 
House  of  Representatives  a  letter  in  the  following  words : 

WASHINGTON,  D.  C.,  February  9, 1877. 

Sin :  I  am  directed  by  the  Electoral  Commission  to  inform  the  House  of  Representa 
tives  that  it  has  considered  and  decided  upon  the  matters  submitted  to  it  under  the 
act  of  Congress  concerning  the  same,  touching  the  electoral  votes  from  the  State  of 
Florida,  and  has  transmitted  said  decision  to  the  President  of  the  Senate,  to  be 
read  at  the  meeting  of  the  two  Houses,  according  to  said  act. 

Hon.  SAMUEL  J.  RANDALL, 

Speaker  of  the  House  of  Representatives. 

The  order  was  adopted  ;  and  the  letter  was  thereupon  signed  ac 
cordingly  by  "  NATHAN  CLIFFORD,  President  of  the  Commission." 
On  motion  of  Mr.  Commissioner  ABBOTT, 

Ordered.  That  the  injunction  of  secrecy  imposed  on  the  action  had  to-day  as  en 
tered  in  the  Journal,  be  removed. 

On  motion  of  Mr.  Commissioner  BRADLEY, 

Ordered,  That  when  the  Commission  adjourn,  it  be  until  three  o'clock  p.  m.  to 
morrow,  the  10th  instant. 

On  motion  of  Mr.  Commissioner  EDMUNDS,  at  eight  o'clock  and 
five  minutes,  the  Commission  adjourned. 

SATURDAY,  February  10,  1877. 

The  Commission  met  at  three  o'clock  p.  m.,  pursuant  to  adjourn 
ment.  Present:  The  President  of  the  Commission,  and  Commission 
ers  MILLER,  FIELD,  STRONG,  BRADLEY,  EDMUNDS,  MORTON,  FRELING 
HUYSEN,  GARFIELD,  HUNTON,  and  HOAR. 

The  Journal  of  yesterday  was  read,  corrected,  and  approved. 

On  motion  of  Mr.  Commissioner  EDMUNDS,  the  Commission  (at 
three  o'clock  and  twenty-eight  minutes  p.  m.)  adjourned  till  Monday 
next  at  half  past  two  o'clock  p.  m. 


MONDAY,  February  12,  1877. 

The  Commission  met  at  half  past  two  o'clock  p.  m.  pursuant  to  ad 
journment. 

Present :  The  President,  and  Commissioners  MILLER,  FIELD,  STRONG, 
BRADLEY,  EDMUNDS,  MORTON,  FRELINGHUYSEN,  BAYARD,  PAYNE, 
HUNTON,  ABBOTT,  GARFIF.LD,  and  HOAR. 

On  motion  of  Mr.  Commissioner  HOAK,  the  Commission  took  a  re 
cess  until  four  o'clock  p.  m. 

The  Commission  re-assembled  at  four  o'clock  p.  m. 

The  Journal  of  Saturday's  proceedings  was  read  and  approved. 

At  four  o'clock  and  forty  minutes  p.  m.,  a  communication  from  the 
two  Houses  of  Congress  in  joint  session  was  presented  by  Mr.  GOR- 
UAM,  Secretary  of  the  Senate,  and  read,  as  follows : 

HALL  OF  THE  HOUSE  OF  REPRESENTATIVES, 

February  12,  1877. 
To  the  President  of  the  Commission : 

More  than  one  return  or  paper  purporting  to  be  a  return  or  certificate  of  electoral 
votes  of  the  State  of  Louisiana  having  been  received  and  this  day  opened  in  the 
presence  of  the  Uyo  Houses  of  Congress  and  read,  and  objections  thereto  haying 
been  made,  the  said  returns,  with  all  accompanying  papers,  and  also  the  objections 
thereto,  are  herewith  submitted  to  the  judgment  and  decision  of  the  Commission, 
as  provided  by  law. 

T.  W.  FERRY, 
President  of  the  Senate: 


Mr.  Commissioner  FIELD.  I  move  that  the  certificates  and  papers 
accompanying  the  same,  and  the  objections  thereto,  be  printed. 

The  motion  was  agreed  to. 

The  PRESIDENT.    Who  represent  the  objectors  ? 

Mr.  Representative  FIELD.  Mr.  President,  Mr.  MCDONALD  of  the 
Senate  and  Mr.  JENKS  of  the  House  will  represent  the  objectors.  I 
understand  they  are  coming  now. 

Mr.  Commissioner  EDMUNDS.  The  objectors  to  which  certificate ; 
I  assume  that  there  are  several  ? 

Mr.  Representative  FIELD.    They  will  explain  for  themselves. 

Mr.  TRUMBULL.    There  are  three  certificates. 

The  PRESIDENT.    And  an  objection  to  each,  I  presume  ? 

Mr.  TRUMBULL.  Yes,  sir.  The  objections  to  the  first  and  third 
are  represented  by  Senator  MCDONALD  and  Mr.  JENKS  of  the  House 
of  Representatives. 

Mr.  EVARTS.  The  objections  to  the  second  certificate  will  be 
represented  by  Mr.  HOWE  of  the  Senate  and  Mr.  HURLBUT  of  the 
House. 

Mr.  Commissioner  MILLER.  Will  the  gentlemen  be  prepared  to  go 
on  this  evening  ? 

Mr.  Commissioner  MORTON.  Senator  THURMAN  sent  word  to  me 
that  he  would  not  be  able  to  be  here  to-day  and  preferred  that  the 
argument  be  not  commenced  until  to-morrow. 

The  PRESIDENT.  I  will  then,  with  the  consent  of  the  Commis 
sion,  state  that  two  objectors  to  certificates  numbered  1  and  3,  if  I 
am  correctly  informed,  may  be  heard  in  oral  argument  in  support  of 
their  objections  and  to  advocate  the  validity  of  any  certificate  the 
validity  of  which  they  maintain.  In  like  manner  two  objectors  to  cer 
tificate  No.  2 — as  I  now  assume  it  to  be  without  having  looked  at  the 
papers — will  also  be  heard  under  like  circumstances  and  to  the  same 
extent.  "  Under  this  rule  not  more  than  four  persons  shall  speak, 
and  neither  side  shall  occupy  more  than  two  hours." 

Mr.  Commissioner  MORTON.  I  move  an  adjournment  to  ten  o'clock 
to-morrow. 

Mr.  Commissioner  FIELD.     I  should  prefer  eleven. 

[It  is  understood  that  the  following  counsel  appear: 
Hon.  John  A.  Campbell,  of  Louisiana, 
Hon  Lyman  Trumbull,  of  Illinois, 
Hon.  Matt.  H.  Carpenter,  of  Wisconsin, 
Richard  T.  Merrick,  Esq.,  of  Washington,  D.  C., 
George  Hoadly,  Esq.,  of  Ohio, 
Ashbel  Green,  Esq.,  of  New  Jersey, 
Hon.  William  M.  Evarts,  of  New  York,^ 

Hon.  E.  W.  Stoughton,  of  New  York,      I  In  opposition  to  certificate 
Hon.  Stanley  Matthews,  of  Ohio,  f  No.  2.] 

Hon.  Samuel  Shellabarger,  of  Ohio,        J 

The  PRESIDENT.  I  will  put  the  longest  time  first.  The  motion 
of  Mr  Justice  FIELD  is  that  the  Commission  adjourn  until  to-morrow 
at  eleven  o'clock  in  the  forenoon. 

The  motion  was  agreed  to  ;  there  being  on  a  division — ayes  8,  noes 
3  ;  and  (at  four  o'clock  and  forty-five  minutes  p.  m.)  the  Commission 
adjourned  until  to-morrow  at  eleven  o'clock  a.  m. 


In  opposition  to  cer 
tificates  Nos.  1  and  3. 


TUESDAY,  February  13, 1877. 

The  Commission  met  at  eleven  o'clock  a.  m.  pursuant  to  adjourn 
ment. 

Present :  The  President,  and  Commissioners  MILLER,  FIELD,  STRONG, 
BRADLEY,  EDMUNDS,  MORTON,  FRELINGHUYSEN,  BAYARD,  PAYNE, 
HUNTON,  ABBOTT,  GARFIELD,  and  HOAR. 

The  various  objectors  to  the  certificates  from  Louisiana  and  the  re 
spective  counsel  were  also  present. 

The  Journal  of  yesterday  was  read  and  approved. 

The  PRESIDENT.  Three  certificates  are  before  the  Commission 
to  each  of  which  there  are  objections.  For  my  own  convenience  I 
have  numbered  them  one,  two,  and  three.  Two  of  the  objectors  to 
certificates  numbered  one  and  three  will  now  be  heard  under  the 
fourth  rule. 

Mr.  Commissioner  GARFIELD.  Are  the  certificates  numbered  in 
the  order  they  were  presented  to  the  two  Houses  ? 

The  PRESIDENT.  I  have  so  numbered  them,  as  I  am  assured  by 
the  Stenographer. 

Mr.  Commissioner  GARFIELD.  I  wish  to  understand  if  they  are 
in  the  chronological  order  of  their  presentation. 

The  PRESIDENT.  They  are.  Each  side  will  be  entitled  to  two 
hours.  Two  who  support  the  views  of  the  objectors  to  certificates  num 
bered  one  and  three  will  be  heard,  and  two  of  the  objectors  who  sup 
port  the  objections  to  certificate  number  two.  First  those  support 
ing  the  objections  to  numbers  one  and  three  will  be  heard. 

Mr.  Senator  MCDONALD.  Mr.  President,  as  the  Commission  is  not 
full,  I  would  prefer  to  wait  a  few  moments  to  see  whether  it  cannot 
be  filled  before  proceeding. 

The  PRESIDENT.  If  there  be  no  objection,  we  shall  wait  a  few 
moments.  We  cannot  wait  long,  I  suppose. 

Senator  MCDONALD.     If  a  member  of  the  Commission  is  absent, 
what  is  the  rule  in  reference  to  proceeding  ? 
'-  The  PRESIDENT.    There  is  no  rule  on  the  subject ;  but  the  law 


58 


ELECTORAL  COMMISSION. 


provides  for  cases  of  physical  inability  to  attend,  and  points  out 
measures  for  filling  the  vacancy.  There  is  nothing  in  the  rules  on 
the  subject. 

Mr.  Senator  McDONALD.  I  have  understood,  but  do  not  know 
personally,  that  Senator  THURMAN  has  been  ill  for  some  days,  at  least 
not  very  well  able  to  give  his  attention  to  business.  If  it  is  not  likely 
that  he  will  be  present  this  morning,  I  would  rather  some  action 
should  be  taken  in  regard  to  his  absence  before  proceeding. 

Mr.  Commissioner  EDMUNDS.  Mr.  MCDONALD  must  be  aware  that 
we  can  scarcely  assume  that  Judge  THURMAN  is  physically  unable  to 
be  present  and  proceed  to  notify  the  Senate  in  order  that  the  place 
may  be  filled  without  some  sort  of  proof.  Undoubtedly,  I  presume, 
if  Judge  THURMAN  thought  himself  unable  to  attend  he  would  so  in 
form  the  Commission  in  writing. 

Mr.  Senator  McDONALD.  I  should  judge  so  ;  and,  therefore,  I 
suppose  if  he  is  able  he  will  be  here  in  a  short  time  unless  the  Com 
mission  receives  a  message  from  him  to  the  contrary. 

Mr.  Commissioner  EDMUNDS.  It  does  not  appear  to  me  that  we 
should  be  justified  in  waiting  on  account  of  the  absence  of  a  single 
member  of  the  Commission  or  of  any  number  less  than  a  quorum,  in 
the  present  state  of  affairs.  We  have  only  reached  the  second  of 
what  are  understood  to  be  four  causes  submitted  to  us.  The  first  one 
having  occupied  nine  or  ten  days,  we  have  now  only  sixteen  days, 
including  this  one,  before  the  presidential  office  begins  ;  so  that  it 
appears  to  me  we  should  avoid  our  duty  under  the  statute  if  we 
were  not  to  proceed.  Of  course,  if  Senator  THURMAN  be  ill  we  ought 
to  be  advised,  so  that  his  place  may  be  filled  ;  but  without  any  evi 
dence  of  that,  it  appears  to  me  due  to  all  parties  concerned  that  we 
should  proceed,  as  we  have  done  occasionally  when  one  or  more  gen 
tlemen  may  have  been  temporarily  absent. 

Mr.  Commissioner  MILLER.  We  have  constantly  proceeded  in 
the  discharge  of  the  duties  of  this  Commission  with  members  of  it 
absent  for  the  time ;  it  is  no  reason  for  delayingproceedings. 

Mr.  Commissioner  BAYARD.  I  have  just  sent  a  message  to  the 
Senate  Committee  room  on  Private  Land  Claims,  of  which  Mr.  THUR 
MAN  is  chairman,  to  ask  the  clerk  there  in  regard  to  the  probability 
of  his  presence.  The  last  communication  he  made  was  to  Mr.  Com 
missioner  MORTON  yesterday,  to  whom  he  sent  some  message  asking 
that  the  argument  might  not  proceed  yesterday  afternoon  in  his 
absence.  From  that  I  presume  he  expected  to  be  here  this  morning. 

The  PRESIDENT.  By  general  consent  we  can  wait  a  few  minutes 
until  the  messenger  returns  from  his  committee-room. 

Mr.  EVARTS.  Mr.  President,  allow  me  to  ask  the  attention  of  the 
Commission  to  certain  laws  of  Louisiana  which  are  not  included  in 
the  compilation  we  have  received  that  was  printed  under  the  direc 
tion  of  the  Commission  and  that  are  important  for  the  consideration 
of  the  principal  questions  of  law. 

The  PRESIDENT.  Would  it  be  convenient  for  you  to  make  a 
note  of  them  and  hand  it  to  us  ? 

Mr.  EVARTS.  I  simply  ask,  by  giving  a  note  to  the  Clerk,  that 
they  may  be  printed  in  season  for  to-morrow  morning. 

The  PRESIDENT.  I  take  it  all  the  members  of  the  Commission 
desire  the  laws  to  be  printed,  if  you  will  furnish  a  note  to  the  Secre 
tary. 

Mr.  EVARTS.  We  supposed  it  was  proper  we  should  ask  the  con 
sent  of  the  Commission. 

The  PRESIDENT.  I  suppose  it  is  hardly  necessary  to  submit  it  to 
the  Commission. 

Mr.  EVARTS.  One  was  printed  last  night  since  the  compilation, 
but  the  other  it  seems  has  been  printed  and  was  omitted  from  the 
compilation  under  the  notion  that  it  was  repealed  ;  but  wo  still  de 
sire  its  use,  and  it  may  be  there  are  copies  of  it  already  in  print. 

The  PRESIDENT,  (after  the  expiration  of  five  minutes.)  Senator 
THURMAN'S  clerk  reports  that  Senator  THURMAN  is  suffering  from 
neuralgia,  but  will  be  out  to-day.  Shall  the  business  of  the  Commis 
sion  proceed  ?  [Putting  the  question.] 

The  question  was  determined  in  the  affirmative. 

The  PRESIDENT.  One  of  the  objectors  to  certificates  Nos.  1  and  3 
will  now  be  heard. 

Mr.  Senator  McDONALD.  Mr.  President  and  gentlemen  of  the 
Commission,  the  certificates  announced  by  the  President  as  first  un 
der  consideration  embrace  the  electoral  votes  cast  for  Hayes  for  Pres 
ident  and  Wheeler  for  Vice-President. 

The  PRESIDENT.  You  may  not  only  support  the  objections,  but 
any  other  certificate  which  you  claim  to  be  valid  within  the  allotted 
time — two  hours  for  your  side. 

Mr.  Senator  McDONALD.  If  the  votes  contained  in  these  certifi 
cates  are  the  votes  provided  for  in  the  Constitution,  then  they  are  to 
be  counted.  To  constitute  them  the  votes  provided  for  in  the  Consti 
tution  they  must  have  been  cast  by  electors  who  were  competent  and 
who  have  been  appointed  electors  in  the  manner  prescribed  by  the 
Legislature  of  the  State.  The  objections  that  we  make  to  these  votes 
are — 

First.  That  the  Legislature  did  not  provide  the  manner  of  the  ap 
pointment  of  the  electors  who  cast  them  ; 

Second.  That  they  were  fraudulently  returned  by  the  officers  in 
trusted  with  the  canvass  and  return  of  the  votes ; 

Third.  That  two  of  them  were  incompetent  under  the  Constitution 
of  the  United  States ; 


Fourth.  That  others  of  them  were  disqualified  from  serving  or  act 
ing  by  the  constitution  and  laws  of  the  State  of  Louisiana ;  and 

Fifth.  That  at  the  time  of  their  appointment  the  State  of  Louisiana 
did  not  have  a  government  republican  in  form. 

With  respect  to  the  laws  of  the  State  authorizing  the  appointment 
of  electors  I  shall  call  the  attention  of  the  Commission  to  the  statutes 
which  have  been  heretofore  enacted,  and  which  are  understood  to 
stand  still  upon  the  statute-book.  It  will  be  found  in  the  session 
laws  of  1868  that  a  special  law  was  enacted  for  the  appointment  of 
presidential  electors ;  and  that  this  special  law  was  re-enacted  in  the 
revised  code  of  1870,  and  will  be  found  at  page  550  of  that  revised 
code.  It  is  also  printed  in  one  of  the  compilations  of  laws  that  have 
been  printed  under  the  order  of  this  Commission,  at  page  93. 

Mr.  Commissioner  GARFIELD.  Which  one,  the  first  or  the  second 
print  ?  We  have  had  two. 

Mr.  Senator  McDONALD.  I  am  not  able  to  determine,  but  the 
second,  I  think.  It  is  entitled  in  this  revision  "  Presidential  Elect 
ors,  Session  Laws,  1868,  No.  193,"  Revised  Statutes  of  Louisiana  of 
1870,  page  550. 

Mr.  TRUMBULL.    It  is  the  last  publication  of  the  compilation. 

(Mr.  Commissioner  THURMAN  appeared  and  took  his  seat,) 

Mr.  Senator  McDONALD.  It  will  be  observed  that  this  special 
law  does  make  specific  provision  for  the  appointment  of  presidential 
electors  by  a  popular  vote.  It  also  provides  for  the  manner  of  the 
return  and  canvass  of  that  vote.  It  will  be  seen  by  section  2826 
that— 

Immediately  after  the  receipt  of  the  return  from  each  parish,  or  on  the  fourth 
Monday  of  November,  if  the  returns  should  not  sooner  arrive,  the  governor,  in  the 
presence  of  the  secretary  of  state,  the  attorney-general,  a  district  judge  of  the  dis 
trict  in  which  the  seat  of  government  may  be  established,  or  any  two  of  them,  shall 
examine  the  returns  and  ascertain  therefrom  the  persons  who  have  been  duly  elected 
electors. 

At  the  session  at  which  this  revision  was  adopted  there  was  another 
act  passed.  It  is  also  published  in  one  of  these  compilations  at  page 
924. 

Mr.  Commissioner  ABBOTT.  That  is  in  the  compilation  without  a 
cover. 

Mr.  Senator  McDONALD.  There  are  two  sets  of  compilations  with 
out  covers  and  one  of  them  is  the  same  as  this  covered  pamphlet  to 
which  I  previously  referred  ;  the  other  has  this  act  of  1870 ;  and  it 
will  be  necessary  ibo  obtain  the  proper  copy  in  order  to  follow  these 
citations.  Your  honors  will  see  by  the  first  section  of  this  act  that 
the  elections  provided  for  in  it  are  styled  "  the  general  elections  of 
the  State."  Section  35  specifically  provides  for  the  election  of  presi 
dential  electors.  That  section  is  as  follows  : 

That  in  every  year  in  which  an  election  shall  bo  held  for  electors  of  President 
and  Vice-President  of  the  United  States,  such  election  shall  bo  held  on  the  Tues 
day  next  after  the  first  Monday  in  the  month  of  November  in  such  year,  in  accord 
ance  with  an  act  of  the  Congress  of  the  United  States,  approved  January  23,  1845, 
entitled  "  An  act  to  establish  a  uniform  time  for  holding  elections  for  electors  for 
President  and  Vice-President  in  all  of  the  States  of  the  Union, "and  such  elections 
shall  be  held  and  conducted  and  returns  made  thereof  in  the  manner  and  form  pre 
scribed  by  the  law  for  general  elections. 

Not  merely  the  elections  shall  be  held  and  conducted  and  returns 
made,  but  the  returns  shall  also  conform  to  the  provisions  prescribed 
in  the  laws  for  general  elections.  The  repealing  section  of  this  act, 
which  is  the  eighty-fifth  section,  reads  as  follows  : 

That  all  laws  or  parts  of  laws  contrary  to  the  provisions  of  this  act,  and  all  laws 
relating  to  the  same  subject-matter,  are  hereby  repealed,  and  this  act  shall  take 
effect  from  and  after  its  passage. 

It  was  approved  March  16,  1870 ;  and  so  your  honors  will  see  that 
two  laws  covering  the  same  subject  seem  to  have  been  enacted  or 
recognized  at  the  same  session ;  the  special  law  of  1868  carried  for 
ward  into  the  code  of  1870  and  the  session  act  of  1870.  By  the  en 
acting  clause  attached  to  the  code,  the  provisions  of  the  code  were 
to  take  effect  on  the  1st  day  of  April,  1870,  and  this  was  after  the 
close  of  the  session  of  1870,  at  which  this  general  law  was  passed. 
And  to  meet  any  questions  that  might  arise  out  of  a  conflict  between 
the  session  act  of  1870  and  the  provisions  embodied  in  the  code,  an 
other  act  was  passed,  one  to  which  the  gentleman  from  New  York 
[Mr.  Evarts]  called  the  attention  of  the  court. 

Mr.  Commissioner  BRADLEY.  When  you  speak  of  "  the  code," 
you  refer  to  the  revised  statutes? 

Mr.  Senator  McDONALD.  Yes,  sir;  it  is  called  in  Louisiana,  I 
believe,  the  code. 

Mr.  Commissioner  BRADLEY.    No ;  the  code  is  a  different  thing. 

Mr.  Senator  McDONALD.    The  revised  statutes. 

Mr.  EDMUNDS.  Can  you  give  us  the  date  of  the  approval  of  the 
revising  act  ? 

Mr.  McDONALD.  March  14;  and  to  take  effect  on  the  1st  of 
April. 

Mr.  EDMUNDS.  That  I  understood ;  but  I  did  not  get  the  date  of 
the  approval  before. 

Mr.  Senator  McDONALD.  It  will  be  found  in  the  revised  statutes;  I 
have  not  the  volume  here.  The  act  I  now  refer  to  is  an  act  printed  this 
morning  to  be  a  part  of  this  compilation  of  statutes  that  have  been 
printed  under  the  direction  of  the  Commission.  It  is  entitled  "  An 
act  giving  precedence  in  authority  to  all  the  other  acts  and  joint  res 
olutions  passed  by  the  General  Assembly  at  this  session  over  the  acts 
known  as  the  revision  of  the  statutes  and  of  the  civil  code  and  code 


ELECTORAL  COMMISSION. 


59 


of  practice,  when  there  exists  any  conflict  in  the  provisions  of  said' 
acts  and  revision."    It  is  a  single  section,  and  is  as  follows  : 

That  all  the  acts  and  resolutions  passed  during  the  present  session  of  the  Gen 
eral  Assembly  which  may  bo  contrary  to  or  in  any  manner  in  conflict  with  the  acts 
of  the  present  session  known  as  the  revision  of  the  statutes  of  a  general  character 
and  of  the  civil  code  and  code  of  practice,  shall  have  precedence  of  said  revision 
and  bo  held  as  the  law  in  opposition  thereto  and  as  repealing  those  acts  so  far  as 
they  may  bo  in  conflict  therewith. 

This  presents  a  question,  and  a  very  grave  one,  as  to  which  of  these 
acts  was  in  force  at  the  close  of  the  session  of  the  Legislature  of  1870, 
(and  upon  the  taking  effect  of  the  revised  statutes,)  and  upon  that 
fact  depend  very  important  questions  arising  hereafter.  If  the  ses 
sion  laws  of  1870  had  the  operation  which  the  Legislature  enacting 
those  revised  statutes  expressly  determined  that  they  should  have, 
and  repealed  the  provisions  of  the  revised  statutes  wherever  there 
was  a  conflict  between  the  session  laws  and  the  revised  statutes. 
If  repealing  statute  has  this  effect  then  the  special  law  providing  for 
the  election  of  electors,  first  enacted  in  1868  and  carried  forward  into 
the  revised  statutes,  was  thereby  repealed.  Ordinarily,  and  perhaps 
almost  universally,  the  last  expressed  will  of  the  Legislature  must 
stand ;  and  where  several  acts  are  passed  at  the  same  session  of  the 
Legislature  and  they  are  in  such  conflict  that  they  cannot  be  recon 
ciled,  the  last  act  must  stand  and  the  first  give  place.  But  this  pre 
sents  a  little  different  question  from  that.  These  acts  embraced  in 
the  revised  statutes  were  a  revision  of  laws  compiled  by  the  author 
ity  of  the  Legislature  and  to  take  effect  by  its  will,  and  at  the  same 
session  in  which  it  acted  upon  that  revision  it  was  passing  laws.  Its 
session  acts  were  from  day  to  day  considered  and  passed  by  it,  and 
in  contemplation  that  there  might  be  conflicts  between  those  session 
acts  and  this  revision  of  laws  that  was  being  prepared  they  declared 
the  force  and  effect  of  their  session  acts  with  respect  to  those  revised 
statutes,  so  that  it  is  not  to  be  said  that  when  they  passed  this  act 
thus  restricting  the  operation  and  effect  of  the  revised  statutes  that 
notwithstanding  the  clear  intent  and  purpose  of  the  Legislature  in 
so  doing  that,  the  revised  statutes  contained  the  last  will  of  the  Leg 
islature,  because  they  took  effect  in  April  at  a  later  period  than  the 
passage  of  this  law. 

I  have  not  time  to  elaborate  this  proposition  and  can  but  state  it 
for  the  consideration  of  the  Commission.  But  if  it  has  the  effect 
which  the  will  of  the  Legislature  designed  it  should  have,  then  the 
act  of  1870  (and  I  call  it  the  act  of  1870  to  distinguish  it  from  the 
special  law  of  1868)  went  upon  the  statute-book  as  the  election  law 
of  the  State  of  Louisiana,  and  provided  the  mode  and  manner  which 
the  State  designed  to  carry  into  effect  the  provisions  of  the  constitu 
tion  with  reference  to  her  right  and  authority  to  appoint  electors,  for 
the  section  of  that  law  to  which  I  have  called  your  honors'  attention 
fully  covers  this  question,  and  in  point  of  fact  it  was  so  considered 
by  the  authorities  iu  the  State  of  Louisiana ;  and  when  the  election  for 
the  appointment  of  electors  in  1872  took  place  it  was  conducted  under 
the  session  act  of  1870  both  as  to  the  election  and  the  returns.  The 
act  of  1867  carried  forward  into  the  revised  statutes  was  ignored, 
and  the  act  of  the  session  of  1870  was  the  one  regarded  as  iu  force, 
and  so  regarded  until  the  20th  day  of  November,  1872,  when  another 
act,  was  passed  to  which  I  shall  call  your  honors'  attention.  Your 
honors  perhaps  know  the  fact  judicially  that  at  that  time  the  Legis 
lature  of  Louisiana  was  not  in  session.  The  act  had  been  passed  at 
the  previous  session  but  had  not  been  signed  by  the  governor  and  was 
not  signed  by  him  until  the  20th  of  November,  1872.  This  he  was 
authorized  to  do  under  their  constitution.  The  law  took  effect  from 
the  date  of  his  signature.  This  act  is  found  on  page  96  of  this  second 
compilation  of  statutes.  That  is  entitled : 

An  act  to  regulate  the  conduct  and  to  maintain  the  freedom  and  purity  of  elec 
tions  ;  to  prescribe  the  mode  of  making  returns  thereof  ;  to  provide  for  the  election 
of  returning-officers,  and  defining  their  powers  and  duties ;  to  prescribe  the  mode 
of  entering  on  the  rolls  of  the  Senate  and  House  of  Kepresentatives ;  and  to  en 
force  article  103  of  the  constitution. 

The  first  section  declares  that  the  elections  therein  provided  for 
shall  be  styled  the  general  elections.  The  seventy -first  section,  which 
is  the  repealing  clause,  is  as  follows : 

That  this  act  shall  take  effect  from  and  after  its  passage,  and  that  all  others  on 
the  subject  of  election  laws  be,  and  the  same  are  hereby,  repealed. 

This  unquestionably  repealed  the  session  act  of  1870.  It  is  an  act 
upon  the  same  subject  throughout  so  far  as  the  general  elections  of 
the  State  of  Louisiana  are  concerned,  but  it  omits  to  make  any  pro 
vision  for  the  appointment  of  electors.  Section  29  is  the  only  section 
that  makes  any  reference  to  the  subject  of  presidential  electors,  and 
it  is  as  follows : 

That  in  every  year  in  which  an  election  shall  be  held  for  electors  of  President 
and  Vice-President  of  the  United  States,  such  election  shall  be  held  at  the  time 
fixed  by  act  of  Congress. 

But  it  fails  to  provide,  as  the  act  of  1870  did  in  the  section  that 
applied  to  the  same  subject,  that  such  election  should  be  held  under 
the  provisions  of  this  act  or  that  the  canvass  and  return  should  be 
under  the  provisions  of  this  act.  Your  honors  will  see,  by  comparing 
this  section  with  the  one  I  have  already  quoted  in  the  session  acts 
of  1870,  that  while  it  refers  to  presidential  electors  and  their  appoint 
ment  it  makes  no  provision,  as  the  other  act  does,  for  their  election 
or  appointment. 

Mr.  Commissioner  MORTON.  Have  you  looked  at  the  thirty-sec 
ond  section  ? 


Mr.  McDONALD.    I  have  noted  the  thirty-second  section.    It  is — 
That  the  provisions  of  this  act,  except  as  to  the  time  of  holding  elections,  shall 
apply  in  the  election  of  all  officers  whose  election  is  not  otherwise  provided  for. 

If  the  act  of  1868  stood  unaffected  by  the  legislation  of  1870,  then 
this  section  would  have  something  to  apply  to ;  but  if  the  session 
laws  of  1870  repealed  the  act  of  1868,  if  that  was  their  force  and 
effect  both  in  reference  to  the  conflict  between  them  and  as  to  the 
proper  construction  of  the  repealing  act  passed  in  the  session  of  1870, 
then  this  could  not  be  held  to  apply ;  for  there  can  be  no  question  but 
what  the  act  of  1870  in  Mo  was  repealed  by  this  act  of  1872.  If  the 
provisions  had  not  been  such  as  to  bring  them  in  conflict,  the  repeal 
ing  clause  of  1872  unquestionably  embraced  it. 

Again,  I  may  state  to  your  honors  that  the  authorities  of  Louisiana 
regarded  the  act  of  1872  and  the  amendments  subsequently  made  as 
the  only  laws  in  force  regulating  the  election  of  all  officers  and  of  all 
persons ;  and  if  it  should  be  held  that  under  this  twenty- sixth  section 
and  the  reference  there  made  there  might  be  held  an  election  for 
electors,  still  it  leaves  this  difficulty  yet  unprovided  for,  that  there  is 
not  anywhere  in  the  act  of  1870  or  in  the  act  of  1872  or  its  amendments 
any  provision  whatever  for  filling  vacancies  in  the  electoral  college, 
as  it  is  termed,  except  by  election.  No  other  provision  exists  in  either 
of  these  laws  for  filling  vacancies  of  this  class  except  by  popular 
election. 

I  will  simply  place  these  statutes  before  your  honors  for  your  due 
consideration,  and  shall  not  undertake  further  to  discuss  their  bear 
ing  at  present.  I  have  already  stated  that  the  election  of  1872  for 
the  appointment  of  electors  took  place  under  the  session  acts  of  1870, 
and  that  the  election  of  1876  took  place  under  the  act  of  1872  and 
the  amendments  that  have  been  since  made.  So  far  as  a  construction 
has  been  given  to  these  statutes  by  the  authorities  of  the  State,  it  has 
been  to  hold  that  the  act  of  1870  took  the  place  of  all  other  laws 'on 
the  subject  of  the  appointment  or  election  of  officers,  and  the  act  of 
1872  took  its  place  and  repealed  all  other  laws  on  the  subject,  "  all 
election  laws,"  to  use  the  language  of  the  repealing  clause ;  and  there 
is  not  to  be  found  in  the  act  of  1872  any  provisions,  specific  or  other 
wise,  providing  for  the  election  of  presidential  electors;  and  if  there 
is  any  provision  that  could  be  under  any  circumstances  made  to 
embrace  that  subject,  then  there  is  no  provision  whatever  for  tilling 
any  vacancies  that  may  exist  in  the  electoral  college  except  by 
popular  election. 

Mr.  Commissioner  THURMAN.  Were  there  any  vacancies  filled  in 
this  case  ? 

Mr.  Senator  McDONALD.  Yes,  sir ;  two  vacancies  were  filled  by 
electing  the  same  persons  who,  it  was  claimed,  had  been  elected  by  the 
popular  vote. 

Mr.  Commissioner  BRADLEY.  Why  do  you  say,  "  Except  by  pop 
ular  election  ?  "  Is  there  a  section  that  provides  for  that  ? 

Mr.  Senator  McDONALD.  Yes,  sir;  section  24  is:  "all elections  to 
be  held  in  this  State  to  fill  any  vacancies  shall  be  conducted,"  &c. 

Then,  as  the  fact  was  that  the  officers  in  charge  of  the  administra 
tion  of  the  laws  in  the  State  of  Louisiana,  with  respect  to  her  elec 
tions,  did  hold  the  election  under  the  act  of  1872,1  propose  to  consider 
in  what  manner  they  held  it,  for  we  charge  that  these  persons  who 
have  undertaken  to  cast  the  electoral  votes  now  under  consideration 
were  fraudulently  returned  by  the  officers  intrusted  with  the  canvass 
of  the  votes  cast  by  the  people.  In  considering  this  branch  of  the 
subject  it  will  be  only  necessary  for  me  to  examine  the  acts  and  con 
duct  of  those  who  are  termed  "  the  returning  officers  of  the  State  of 
Louisiana."  Their  powers  and  duties  are  denned  in  sections  3  and  26 
of  the  act  of  1872.  They  are  the  same  precisely  as  those  conferred 
upon  similar  officers  by  the  law  of  the  session  of  1870.  First,  how 
ever,  your  honors,  as  to  the  constitution  of  this  board,  the  second  sec 
tion  provides : 

That  five  persons,  to  be  elected  by  the  senate  from  all  political  parties,  shall  bo 
the  returning  officers  for  all  elections  in  the  State,  a  majority  of  whom  shall  consti 
tute  a  quorum,  and  have  power  to  make  the  returns  of  all  elections.  In  case  of  any 
vacancy  by  death,  resignation ,  or  otherwise,  by  either  of  the  board,  then  the  va 
cancy  shall  be  filled  by  the  residue  of  the  board  of  returning  officers. 

Your  honors  will  see  that  the  board  herein  provided  consists  of 
five,  and  that  in  its  political  caste  it  shall  represent  all  the  political 
parties,  and  if  a  vacancy  occurs  the  remaining  members  of  the  board 
shall  fill  it.  This  is  a  very  peculiar  statute-,  a  very  singular  law. 
Here  a  board,  organized  with  powers  over  the  election  returns  of  all 
elections,  is  made  perpetual,  with  the  power  within  itself  to  continue 
that  perpetuity.  When  once  established,  the  board  has  gone  out 
from  the  State  authorities,  from  the  people,  from  the  popular  control, 
into  the  hands  of  these  men,  and  they  continue  on  and  on  and  on 
forever. 

I  have  already  said  that  their  duties  were  prescribed  and  their  au 
thority  circumscribed;  and  your  honors  will  see  that  it  is  very  neces 
sary  to  circumscribe  such  authority.  The  sections  to  which  I  have 
made  reference  have  been  under  review  before  ;  they  are  not  here  to 
be  considered  for  the  first  time ;  such  has  been  the  condition  of  affairs 
in  Louisiana  that  it  has  become  the  duty  on  former  occasions  of  Con 
gress,  on  the  part  of  the  Senate  and  on  the  part  of  the  House,  to  in 
vestigate  the  matter  of  popular  elections  there  and  the  powers  of  this 
board.  The  powers,  so  far  as  canvass  and  return  are  concerned,  I 
have  already  stated,  as  embraced  in  the  act  of  1872,  are  the  same  as 
those  embraced  in  the  act  of  1870. 

Now  let  us  see  what  construction  has  been  given  to  those  powers 


60 


ELECTORAL  COMMISSION. 


heretofore.  I  will  first  call  your  honors'  attention  to  the  report 
made  by  the  Senate  Committee  on  Privileges  and  Elections— report 
417,  of  the  Forty-second  Congress,  first  session,  under  date  of  Feb 
ruary  10, 1878— submitted  by  Senator  MORTON,  the  chairman,  in  which 
the  following  language  is  used: 

Tbo  statute  of  Louisiana  authorizes  the  supervisors  of  registration  in  the  par 
ishes  or  the  commissioners  of  election,  to  make  affidavit  in  regard  to  any  violence, 
tumult,  fraud,  or  bribery  by  which  a  fair  election  has  been  prevented,  which  shall 
be  forwarded  to  the  returning  board,  along  with  the  returns,  and  upon  which  the 
returning  board  may  reject  the  vote  of  a  poll  in  making  the  count ;  and  if  the  evi 
dence  of  the  officers  of  the  election  is  not  sufficient  to  satisfy  the  minds  of  the  re 
turning  board  in  regard  to  the  matters  charged,  they  are  authorized  to  send  for  per 
sons  and  papers  and  take  further  testimony  upon  the  matter ;  but  they  have  no  au 
thority  to  make  such  investigation  unless  the  foundation  is  first  laid  by  the  sworn 
statements  of  the  officers  of  the  election,  as  before  mentioned. 

That  report  was  made  to  the  Senate  of  the  United  States,  and  upon 
that  report  and  the  facts  therewith  connected  the  Senate  acted  in 
1873  upon  the  electoral  vote  of  that  State. 

In  the  House  of  Representatives  also  a  committee  report  waiS  made 
on  the  23d  of  February,  1875,  signed  by  honorables  George  F.  Hoar, 
William  A.  Wheeler  and  W.  P.  Frye,  members  of  the  committee. 
They  quote  at  length  sections  3  and  26,  and  I  will  read  them  as  they 
have  quoted  them : 

SEC.  3.  Be  it  further  enacted,  <£c.,  That  in  such  canvass  and  compilation  the  re 
turning  officers  shall  observe  the  following  order :  They  shall  compile  first  the 
statements  from  all  the  polls  or  voting-places  at  which  there  shall  have  been  a  fair, 
free,  and  peaceable  registration  and  election.  Whenever,  from  any  poll  or  voting- 
place,  there  shall  be  received  the  statement  of  any  supervisor  of  registration  or  com 
missioner  of  election,  in  form  as  required  by  section  26  of  this  act,  on  affidavit  of 
three  or  more  citizens,  of  any  riot,  tumult,  acts  of  violence,  intimidation,  armed  dis 
turbance,  bribery,  or  corrupt  influences,  which  prevented,  or  tended  to  prevent,  a 
fair,  free,  and  peaceable  vote  of  all  qualified  electors,  entitled  to  vote  at  such  poll 
or  voting-place,  such  returning  officers  shall  not  canvass,  count,  or  compile  the 
statement  of  votes  from  such  poll  or  voting-places  until  the  statements  from  all 
othfer  polls  or  voting-places  shall  have  been  canvassed  and  compiled.  The  return 
ing  officers  shall  then  proceed  to  investigate  the  statements  of  riot,  tumult,  acts  of 
violence,  intimidation,  armed  disturbance,  bribery,  or  corrupt  influences  at  any  such 
poll  or  voting-place  ;  and  if  from  the  evidence  of  such  statement  they  shall  be  con 
vinced  that  such  riot,  tumult,  acts  of  violence,  intimidation,  armed  disturbance, 
bribery,  or  corrupt  influences  did  not  materially  interfere  with  the  purity  aud  free 
dom  of  the  election  at  such  poll  or  voting-place,  or  did  not  prevent  a  sufficient  number 
of  qualified  voters  thereat  from  registering  or  voting  to  materially  change  the  result 
of  the  election,  then,  and  not  otherwise,  said  returning  officers  shall  canvass  and  com 
pile  the  vote  of  such  poll  or  voting-place  with  those  previously  canvassed  and  com 
piled  ;  but  if  said  returning  officers  shall  not  be  fully  satisfied  thereof,  it  shall  be  their 
duty  to  examine  further  testimony  in  regard  thereto,  and  to  this  end  they  -shall  have 

Eower  to  send  for  persons  and  papers.  If,  after  such  examination,  the  said  return- 
ig  officers  shall  be  convinced  that  said  riot,  tumult,  acts  of  violence,  intimidation, 
armed  disturbance,  bribery,  or  corrupt  influences  did  materially  interfere  with  the 
purity  and  freedom  of  the  election  at  such  poll  or  voting-place,  or  did  prevent  a 
sufficient  number  of  the  qualified  electors  thereat  from  registering  and  voting  to 
materially  change  the  result  of  the  election,  then  the  said  returning  officers  shall 
not  canvass  or  compile  the  statement  of  the  votes  of  such  poll  or  voting-place,  but 
shall  exclude  it  from  their  returns :  Provided,  That  any  person  interested  in  said 
election  by  reason  of  being  a  candidate  for  office  shall  be  allowed  a  hearing  before 
said  returning  officers  upon  making  application  within  the  time  allowed  for  the  for 
warding  of  the  returns  of  said  election. 

There  is  their  authority ;  there  is  the  direction  by  which  they  are  to 
be  guided  ;  and  section  26  provides  for  the  character  of  these  papers 
that  are  thus  to  assail  and  attack  these  polls ;  and  that  is : 

SEC.  26.  Be  it  further  enacted,  <tc.,  That  in  any  parish,  precinct,  ward,  city,  or  town 
in  which,  during  the  time  of  registration  or  revision  of  registration,  or  on  any  day 
of  election,  there  shall  be  any  riot,  tumult,  acts  of  violence,  intimidation,  and  dis 
turbance,  bribery,  or  corrupt  influences  at  any  place  within  said  parish,  or  at  or 
near  any  poll  or  voting-place  or  place  of  registration,  or  revision  of  registration, 
which  riot,  tumult,  acts  of  violence,  intimidation,  and  disturbance,  bribery,  or  cor 
rupt  influences  shall  prevent,  or  tend  to  prevent,  a  fair,  free,  peaceable,  and  full 
vote  of  all  the  qualified  electors  of  said  parish,  precinct,  ward,  citv,  or  town,  it 
shall  be  the  duty  of  the  commissioners  of  election,  if  such  riot,  tumult,  acts  of  vio 
lence,  intimidation  and  disturbance,  bribery,  or  corrnpt  influences  occur  on  the  day 
of  election,  or  of  the  supervision  of  registration  of  the  parish,  if  they  occur  during 
the  time  of  registration,  or  revision  of  registration,  to  make  in  duplicate  and  under 
oath  a  clear  and  full  statement  of  all  the  facts  relating  thereto,  and  the  effect  pro 
duced  by  such  riot,  tumult,  acts  of  violence,  intimidation,  and  disturbance,  bribery, 
or  corrupt  influences,  in  preventing  a  fair,  free,  peaceable,  and  full  registration  or 
election,  and  of  the  number  of  qualified  electors  deterred  by  such  riots,  tumult, 
acts  of  violence,  intimidation  and  disturbance,  bribery,  or  corrupt  influences  from 
registering  or  voting,  which  statement  shall  also  be  corroborated  under  oath  by 
three  respectable  citizens,  qualified  electors  of  the  parish. 

When  such  statement  is  made  by  a  commissioner  of  election  or  a  supervisor  of 
registration,  he  shall  forward  it  in  duplicate  to  the  supervisor  of  registration  of  the 
parish,  if  in  the  city  of  New  Orleans,  to  the  secretary  of  state,  one  copy  of  which, 
if  made  to  the  supervisor  of  registration,  shall  be  forwarded  by  him  to  the  return 
ing  officers  provided  for  in  section  2  of  this  act,  when  he  makes  the  returns  of  elec 
tions  in  his  parish.  His  copy  of  said  statement  shall  be  so  annexed  to  his  returns 
of  elections  by  paste,  wax,  or  some  adhesive  substance,  that  the  same  can  be  kept 
together,  and  the  other  copy  the  supervisor  of  registration  shall  deliver  to  the  clerk 
of  the  court  of  his  parish  for  the  use  of  the  district  attorney. 

Now,  after  quoting  these  sections  as  I  have  read  them,  the  report 
proceeds : 

_  Upon  this  statute  we  are  clearly  of  the  opinion  that  the  returning  board  had  no 
right  to  do  anything  except  to  canvass  and  compile  the  returns  which  were  lawfully 
made  to  them  by  the  local  officers,  except  in  cases  where  they  were  accompanied  by 
the  certificate  of  the  supervisor  or  commissioner  provided  in  the  third  section.  In 
such  cases  the  last  sentence  of  that  section  shows  that  it  was  expected  that  they 
would  ordinarily  exercise  the  grave  and  delicate  duty  of  investigating  charges  of 
riot,  tumult,  bribery,  or  corruption,  on  a  hearing  of  the  parties  interested  in  the 
office.  It  never  could  have  been  meant  that  this  board  of  its  own  notion,  sitting  in 
New  Orleans,  at  a  distance  from  the  place  of  voting,  and  without  notice,  could  de 
cide  the  rights  of  persons  claiming  to  be  elected. 

But  an  examination  of  the  law  will  clearly  disclose  that  such  was 
its  purpose  and  intent ;  for  when  you  consider  the  second  section,  as 
to  what  these  officers  shall  do,  it  will  be  seen  that  their  primary  duty 
is  to  canvass  and  compile  the  votes  returned  to  them.  They  are  first 


required  to  take  an  oath  of  office  that  "  they  will  faithfully  and  dili 
gently  perform  the  duties  of  a  returning  officer  as  prescribed  by  law ; 
that  they  will  carefully  and  honestly  canvass  and  compile  the  state 
ments  of  the  votes,  and  make  a  true  and  correct  return  of  them,  so 
help  them  God." 

Mr.  Commissioner  THURMAN.  Is  there  any  evidence  now  before 
us  that  they  threw  out  returns  that  were  not  accompanied  by  a  pro 
test? 

Mr.  Senator  McDONALD.  I  shall  call  the  attention  of  the  Commis 
sion,  before  I  am  through,  to  what  I  claim  to  be  evidence  on  that  sub 
ject. 

Within  ten  days  after  the  closing  of  the  election  said  returning  officers  shall  meet 
in  New  Orleans  to  canvass  and  compile  the  statement  of  votes  made  by  the  com 
missioners  of  election,  and  make  returns  of  the  election  to  the  secretary  of  state. 

They  are  to  canvass  and  compile  "  the  statements  of  votes  made  by 
the  commissioners  of  election,"  those  primary  officers  who  receive  the 
ballots  from  the  people,  and  then  to  make  a  sworn  statement  of 
them. 

Mr.  Commissioner  MORTON.    What  section  do  you  read  that  from  I 

Mr.  Senator  McDONALD.  Section  2.  That  is  what  they  are  to  do ; 
a  statement  of  the  votes  made  by  the  commissioners  of  election. 
Then  when  they  have  made  this  canvass  according  to  law,  and  fol 
lowed  the  law,  their  act  gives  aprimafade  right  to  the  party  receiv 
ing  a  certificate,  and  but  a  prima  facie  right  by  the  express  terms  of 
the  statute  itself. 

These  constructions  of  the  authority  of  the  returning  board  in 
Louisiana  have  been  affirmed  by  each  House  of  Congress  in  its  deal 
ings  with  the  popular  elections  there  ;  and  in  the  case  of  the  presi 
dential  electors  of  1872  the  vote  of  the  State  of  Louisiana  was  cast 
out  and  not  counted  because  there  had  been  a  failure  to  comply  with 
the  law  of  the  State  on  the  part  of  these  officers  ;  not  that  there  had 
not  been  an  election,  not  that  the  people  had  not  voted  there,  but 
that  there  had  been  a  failure  on  the  part  of  those  intrusted,  as  it  is 
termed,  with  the  "  machinery  of  the  election  "  in  that  State  to  make 
that  kind  of  return  that  gave  faith  aud  credit  to  their  acts.  See 
pages  396-407  compilation  of  proceedings  of  Counting  the  Electoral 
Votes. 

Of  the  votes  actually  cast  at  the  late  election  for  appointment  of 
electors  in  Louisiana,  the  democratic  electors  received  majorities 
ranging  from  5,300  to  8,990 ;  on  the  face  of  the  returns  as  made  by 
the  supervisors  of  registration  to  the  board  of  returning  officers  their 
majorities  ranged  from  3,459  to  6,405,  but  by  the  canvass  and  the  re 
turn  made  by  the  returning  officers  majorities  were  certified  in  favor 
of  the  republican  electors  ranging  from  3,437  to  4,800.  To  produce 
this  result  sixty-nine  polls  were  rejected,  embracing  twenty-two  par 
ishes  in  whole  or  in  part. 

In  the  canvass  thus  made  by  the  returning  officers  there  were  act 
ually  frauds  committed  by  them  in  this,  that  they  failed  and  refused 
to  canvass  and  compile  the  statements  of  votes  made  by  the  commis 
sioners  of  election  and  pretended  to  consider  only  the  consolidated 
statements  made  by  the  supervisors  of  elections.  In  this  manner  the 
parish  of  Grant  was  rejected  entirely,  because  the  statement  of  votes 
made  by  the  commissioners  of  elections,  although  before  them,  had 
not  been  returned  by  the  supervisor  of  registration.  They  also  re 
fused  for  the  same  reasons  to  consider  2,914  votes  cast  for  the  demo 
cratic  electors,  and  651  votes  cast  for  the  republican  electors,  mainly 
in  the  parishes  of  East  Baton  Rouge  and  Orleans.  They  transposed 
178  votes  from  democratic  electors  cast  in  the  parish  of  Vernon  to 
the  republican  electors,  which  transposition  has  never  been  corrected. 
They  rejected  poll  No.  4  in  the  parish  of  Iberia,  in  which  were 
cast  322  votes  for  the  democratic  electors,  and  11  votes  for  the  re 
publican  electors,  for  no  other  alleged  cause  than  that  the  commis 
sioners'  statement  did  not  show  that  the  word  "  voted "  had  been 
written  or  stamped  on  the  certificates  of  registration  presented  by  the 
voters.  They  rejected  polls  1,  3,  and  10  in  the  parish  of  Vernon,  ag 
gregating  179  votes  for  the  democratic  electors  and  none  for  the  re 
publican  electors,  upon  affidavits  fraudulently  made  and  filed  after 
they  had  closed  their  public  sessions,  and  they  added  to  the  votes 
as  returned  by  the  supervisors  of  registration  over  500  votes  to  five 
of  the  eight  republican  electors  in  the  parish  of  Concordia,  and  over 
500  votes  in  the  parish  of  Natchitoches,  upon  no  sufficient  proof  that 
such  votes  had  been  actually  cast,  and  without  the  know  ledge  of  the 
democratic  electors  interested  in  the  question. 

In  some  instances  polls  were  rejected  because,  from  the  necessities 
of  the  case,  commissioners  of  elections  at  such  polls  were  democrats, 
the  supervisors  of  election  not  being  able  to  find  qualified  republi 
cans  to  fill  said  positions.  From  these  and  other  facts  of  a  like  na 
ture  it  is  charged  and  claimed  that  the  action  of  the  board  of  return 
ing  officers  was  so  corrupt  and  fraudulent  as  to  destroy  all  faith  and 
credit  in  their  canvass  and  return. 

Again,  in  rejecting  polls  the  board  of  returning  officers  acted  with 
out  lawful  authority,  there  being  but  few,  if  any,  cases  in  which  the 
returns  made  to  them  had  been  accompanied  by  any  proper  certifi 
cate  or  statement  of  the  supervisors  of  registration  or  commissioners 
of  election,  as  provided  for  in  the  law  under  which  they  claimed  to 
act,  contesting  the  fairness  of  the  registration  or  election,  but  arbi 
trarily,  and  without  any  sufficient  foundation  being  laid  therefor  and 
upon  false  and  fraudulent  affidavits  manufactured  for  that  purpose, 
rejected  such  polls  on  charges  of  riot,  tumult,  bribery,  &c.,  without 
any  proper  hearing  on  the  part  of  the  parties  interested. 


ELECTORAL  COMMISSION. 


The  election  laws  of  1870  and  1872  had  placed  midcr  control  of  the 
governor  of  the  State  all  the  machinery  of  election  and  vested  in  him 
an  authority  and  power  "  scarcely  exercised  by  any  sovereign  in  the 
world."  He  appointed  the  State  superintendent  of  registration  and 
the  supervisors  of  registration  in  each  parish  in  the  State,  and  they 
in  turn  fixed  the  polling-places  in  the  several  parishes  and  appointed 
the  commissioners  or  judges  of  election,  who  received  the  ballots  of 
the  people.  All  of  these  appointees,  with  but  very  few  exceptions, 
were  members  of  the  republican  party,  and  in  this  instance  all  this 
vast  power  was  aided  by  Federal  officers,  civil  and  military,  and  par 
ticularly  by  the  United  States  marshal  for  the  district  of  Louisiana, 
who,  claiming  to  act  under  the  instructions  from  the  Department  of 
Justice,  increased  the  number  of  his  deputies  to  over  eight  hundred 
and  distributed  them  through  the  different  parishes  under  the  pre 
tense  of  aiding  in  preserving  order  and  protecting  the  purity  of  the 
ballot-box.  All  of  these  combined  official  forces  acted  in  unison  and 
harmony  with  the  republican  State  committee  in  conducting  the  can 
vass  and  in  controlling  the  election. 

HEADQUARTERS  REPUBLICAN  PARTY  OF  LOUISIANA, 
ROOMS  JOINT  COMMITTEE  ON  CANVASSING  AND  REGISTRATION, 
MECHANICS'  INSTITUTE,  September  25,  1876. 

DEAR  SIR  :  It  is  well  known  to  this  committee  that,  from  examination  of  the  cen 
sus  of  1875,  the  republican  vote  in  your  parish  is  2,200  and  the  republican  majority 
is  900. 

You  are  expected  to  register  and  vote  the  full  strength  of  the  republican  party 
in  your  parish. 

Your  recognition  by  the  next  State  administration  will  depend  upon  your  doing 
your  full  duty  in  the  premises,  and  you  will  not  be  held  to  have  done  your  full 
duty  unless  the  republican  registration  iu  your  parish  reaches  2,200  and  the  re 
publican  vote  is  at  least  2,100. 

All  local  candidates  and  committees  are  directed  to  aid  yon  to  the  utmost  in  ob 
taining  the  result,  and  every  facility  is  and  will  be  afforded  you  ;  but  you  must  ob 
tain  the  results  called  for  herein  without  fail.  Once  obtained,  your  recognition 
will  be  ample  and  generous. 

Very  respectfully,  your  obedient  servant, 

D.  J.  M.  A.  JETVETT, 

Secretary. 

SUPERVISOR  OF  REGISTRATION, 

Parish  of  Assumption,  Louisiana. 

Notwithstanding  this  immense  power  wielded  for  the  purpose  of 
procuring  in  the  returns  to  be  made  a  majority  for  the  republican 
electors  and  republican  State  ticket,  the  returning  officers  were  com 
pelled  to  and  did  return  the  majorities  heretofore  stated  in  favor  of 
the  democratic  electors.  It  was  then  that  the  duties  of  the  returning 
officers,  in  the  language  of  J.  Madison  Wells,  president  of  the  board, 
"augmented  the  magnitude  of  the  destiny  of  the  two  groat  parties," 
and,  by  the  fraudulent  and  unlawful  means  already  charged,  reversed 
the  popular  verdict  and  fraudulently  issued  the  certificates,  which  are 
the  foundation  of  the  authority  for  the  vote  cast  for  Hayes  and 
Wheeler  and  which  this  Commission  is  called  upon  to  pronounce  to 
be  the  true  and  lawful  vote  of  the  State  of  Louisiana. 

The  evidence  to  support  these  charges  of  fraud  and  illegality  on 
the  part  of  the  canvassing  officers  of  Louisiana  has  already  been  taken 
by  the  Senate  of  the  United  States  in  pursuance  of  the  resolution 
adopted  December  4,  1876,  requiring  tho  Committee  on  Privileges  and 
Elections,  among  other  duties,  to  inquire  whether  the  appointment 
of  electors,  or  those  claiming  to  be  such,  in  any  of  the  States  had 
been  made  either  by  force,  fraud,  or  other  means,  otherwise  than  in 
conformity  with  the  Constitution  and  laws  of  the  United  States  and 
the  laws  of  the  respective  States ;  and  by  the  House  of  Representa 
tives  through  a  special  committee  appointed  to  investigate  the  recent 
election  and  the  action  of  tho  canvassing  or  returning  board  of  the 
State  of  Louisiana  in  reference  thereto,  and  report  all  the  facts  essen 
tial  to  an  honest  return  of  the  votes  received  by  the  electors  of  said 
State  for  President  and  Vice-President  of  the  United  States. 

The  PRESIDENT.  I  do  not  know,  Mr.  McDonald,  what  the  ar 
rangement  between  you  and  your  associate  is,  but  half  the  time  has 
elapsed.  One  hour  has  been  consumed. 

Mr.  Senator  McDONALD.  I  shall  not  take  up  his  time,  but  I  shall 
leave  him  to  present  in  extenso  these  questions.  I  will  only  occupy 
a  few  minutes  further. 

It  is  the  dnty  of  this  Commission,  tinder  the  law  creating  it,  exer 
cising  for  that  purpose  all  the  powers  now  possessed  by  the  two  Houses  of 
Congress  acting  separately  or  together,  to  determine  and  decide  whether 
any  and  what  votes  from  tho  State  of  Louisiana  are  the  votes  pro 
vided  for  by  the  Constitution  of  the  United  States,  and  how  many 
and  what  persons  were  duly  appointed  electors  in  said  State,  and  may 
therein  take  into  view  such  petitions,  depositions,  and  other  papers, 
if  any,  as  shall,  by  the  Constitution  and  now  existing  laws,  be  com 
petent  and  pertinent  in  such  consideration. 

In  vesting  these  powers  in  this  Commission  Congress  created  a  judi 
cial,  and  not  a  clerical,  board. 

Asa  judicial  board,  this  Commission  is  not  bound  to  accept  "as 
the  votes  provided  for  in  the  Constitution  of  tho  United  States  "such 
as  may  have  been  cast  by  persons  fraudulently  certified  as  electors 
nor  to  accept  them  as  duly  appointed  electors,  and  must  consider  in 
reaching  its  determination  such  proof  as  would  be  admissible  in  either 
branch  of  Congress  if  engaged  in  the  consideration  of  the  same  ques 
tion  ;  and,  therefore,  the  proofs  already  taken  by  ei ther  of  said  Houses 
with  respect  to  these  questions  are  to  be  deemed  "  depositions  and 
other  papers  pertinent  in  such  consideration." 

If  these  proofs,  or  any  other  evidence  which  the  Commission  may 
properly  receive,  shall  establish  the  fact  that  the  electors  who  cast 


the  votes  in  question  had  been  appointed  by  fraud  or  other  means 
otherwise  than  in  conformity  with  the  Constitution  and  laws  of  the 
United  States  and  the  laws  of  the  State  of  Louisiana,  or  that  any  of 
them  were  incapable  of  being  chosen,  then  the  votes  cast  by  such 
must  be  rejected,  for  they  are  not  "  the  votes  provided  for  in  the  Con 
stitution." 

Mr.  President  and  gentlemen  of  the  Commission,  may  I  in  conclu 
sion  conjure  you  to  meet  these  questions  on  their  merits? 
Say  that  the  charges  are  true  or  false. 

Here  are  charges  of  fraud  against  the  perpetration  of  which  every 
honest  instinct  of  our  nature*  rebels.  A  villainy  in  their  perpetration 
that  is  ringing  through  the  land. 

Do  not,  by  closing  your  eyes  to  them,  exhibit  a  degree  of  judicial 
blindness  that  all  good  men  must  deprecate  and  the  whole  country 
condemn. 

Mr.  Commissioner  BAYARD.    I  should  like  to  ask  you  to  refer  to 
the  statute  of  Louisiana  providing  for  filling  vacancies  in  the  college 
of  electors,  recited  in  the  certificate  of  Mr.  Kellogg. 
Mr.  Senator  McDONALD.    That  is  in  the  act  of  1868. 
Mr.  TRUMBULL.    It  will  be  found  in  the  pamphlet  at  page  93. 
Mr.  Commissioner  HUNTON.    Allow  me  to  ask  a  question,  Mr. 
McDonald.    You  have  stated  that  the  electoral  vote  of  Louisiana  was 
discarded  in  1872  on  the  ground  that  there  was  no  regular  machinery 
for  counting  the  electoral  vote. 

Mr.  Senator  McDONALD.  No,  sir  ;  not  that  ;  but  that  there  had 
been  a  fraudulent  return  of  that  vote.  That  was  one  of  the  grouuds 
of  objection  made  at  the  time  the  certificates  were  opened.  It  does 
not  appear  upon  which  one  of  the  several  grounds  the  vote  was  based, 
but  there  were  quite  a  number.  The  Senate  and  House  acted,  and 
they  each  passed  resolutions  that  it  was  not  the  electoral  vote  of  tho 
State. 

Mr.  Commissioner  HUNTON.  I  am  aware  of  that.  I  only  wanted 
to  ask  you  to  furnish  the  Commission  with  that  evidence. 

Mr.  Senator  McDONALD.  In  tho  book  entitled  Presidential  Counts 
yon  will  find  the  whole  of  it. 

Mr.  Representative  JENKS.  I  would  ask,  Mr.  President,  how  much 
time  I  have  ? 

Mr.  Commissioner  ABBOTT.  I  move,  if  Mr.  Jenks  desires  it,  that 
ho  may  have  a  full  hour.  Some  ten  minutes  of  it,  I  think,  were  taken 
by  Sena.tor  McDonald  and  interruptions  of  him,  and  there  are  so 
many  questions  to  be  discussed  here  which  are  of  importance. 

Mr.  Senator  McDONALD.  I  trust,  Mr.  President  and  gentlemen, 
it  may  be  so.  The  questions  put  to  me  necessarily  led  mo  to  occupy 
more  time  than  I  intended. 

The  PRESIDENT.  Are  you  satisfied,  Mr.  Jenks,  to  take  five  min 
utes  in  addition  to  the  time  left? 

Mr.  Representative  JENKS.  I  prefer  a  full  hour ;  I  do  not  know 
that  I  shall  consume  it. 

The  PRESIDENT.    I  will  submit  the  question  to  the  Commission : 
Shall  Mr.  Jenks  have  an  hour  ? 
The  question  was  decided  in  the  affirmative. 

Mr.  Commissioner  ABBOTT.  And  of  course  the  same  time  will 
bo  extended  to  the  other  side  if  they  wish  it. 

Mr.  Representative  JENKS.  Mr.  President  and  gentlemen  of  the 
Commission,  by  the  organic  act  under  which  this  tribunal  is  consti 
tuted,  with  tho  decision  that  has  been  rendered  thereon  and  adopted 
by  the  Houses,  the  principle  has  been  established  that  the  Houses  of 
Congress  shall  count  the  votes.  That  being  fixed  as  a  fact  from  which 
to  start,  the  inquiry  is  what  is  implied  in  counting  the  votes?  Count 
ing  any  given  thing  implies  two  different  actions  of  the  mind;  one  of 
discrimination  or  determination  to  find  that  the  thing  to  be  counted 
is  generically  of  the  kind  that  is  to  bo  counted,  and  the  counting,  an 
act  of  enumeration  or  finding  the  result  from  these  acts  of  determi 
nation.  To  throw  out  either  word  from  the  sentence,  "the  votes  shall 
then  be  counted,"  would  be  to  destroy  its  sense. 

Now  I  will  assume  that  the  Constitution  has  said  the  Houses  of 
Congress  shall  count  the  votes.  When  a  power  is  conferred  by  the 
Constitution,  every  power  that  is  necessarily  implied  to  perform  that 
power  is  also  granted ;  and  when  a  power  is  granted  and  the  emer 
gency  arises  when  that  power  should  be  exercised,  the  execution  of 
that  power  becomes  a  dnty,  and  when  that  emergency  has  arisen,  the 
implied  powers,  whatever  are  necessary  to  discharge  that  duty,  are 
granted  ;  and  if  they  are  a  necessary  implication  from  the  Constitu 
tion,  they  are  as  much  a  part  of  it 'as  though  there  written  ;  and  if 
the  Constitution  has  written  therein  that  they  have  the  power  to  in 
telligently  do  the  act,  neither  Congress  nor  any  one  else  can  lawfully 
deprive  them  of  that  power.  Hence,  if  the  act  of  Congress  which 
says  that  the  executive  certificate  shall  be  the  only  evidence  received 
contravenes  the  grant  of  power  which  is  necessarily  implied  to  find 
the  truth,  that  statute  is  a  simple  nullity,  because  here  are  the  legis 
lative  bodies  of  a  great  nation  ;  they  are  required  to  attest  by  their 
journals  a  fact  which  is  to  go  down  through  all  history  as  tho  truth 
over  their  signatures,  and  no  power  on  earth  can  say  that  you  shall 
put  upon  those  journals  that  which  yoii  and  every  one  else  knows  to 
be  false.  So  there  can  be  no  such  thing  as  blinding  the  eyes.  If 
Congress  had  passed  an  act  that  the  members  of  the  Senate  and  House 
of  Representatives  with  bandages  over  their  eyes,  under  tho  superin 
tendence  of  the  President  of  the  Senate  bandaged  in  a  like  manner, 
should  count  the  votes,  you  would  say  that  absurdity  cannot  be  tol 
erated,  aud  the  same  fact  exists  here,  Truth  is  the  moral  sunlight 


62 


ELECTORAL  COMMISSION. 


of  the  world,  and  if  you  dare  cut  out  the  truth  from  the  physical 
eye,  you  dare  from  the  moral  eye  or  the  mind's  eye  ;  but  you  cannot 
from*  one  more  than  from  the  other  unless  you  propose  to  defy  the  in 
telligent  judgment  of  the  world. 

Then  this  being  the  duty  of  the  Houses,  to  count  the  votes, 
and  the  counting  implying  the  fact  that  there  must  be  an  intelligent 
judgment  and  an  accurate  enumeration,  no  power  can  deprive  the 
Houses  of  the  necessary  intelligence  to  do  that  duty. 

Then  1  wish  to  call  the  attention  of  the  Commission  to  another  dis 
tinction.  It  has  been  rather  assumed  that  this  is  a  judicial  tribunal. 
I  am  unable  to  concur  in  this  view.  Hf  is  essentially  legislative  to 
determine  the  succession  of  the  Chief  Executive ;  nothing  more  and 
nothing  less.  A  merchant  turns  to  his  clerk  and  says  to  him,  "  Go  to 
yon  pile  of  goods  and  determine  which  are  the  calicoes  and  count 
the  number  of  webs."  It  is  not  a  judicial  act  for  that  clerk  to  obey 
the  order.  There  are  no  parties  to  it.  The  merchant  is  the  owner ; 
he  is  to  do  it  for  himself,  and  not  another ;  it  is  not  a  judicial  act  at 
all.  The  United  States  says  to  her  two  Houses  of  Congress,  "All  cer 
tificates,  true  and  false,  being  opened,  you  are  required  to  make  a 
truthful  count  of  those  which  are  genuine,  and  repudiate  those  which 
are  false."  It  is  the  nation  doing  it  for  herself.  It  is  not  parties. 

This  discussion  has  been  somewhat  depreciated  in  its  character,  I 
apprehend,  in  that  it  has  been  to  some  extent  assumed  that  this  is  a 
contest  between  parties.  It  is  forty-live  millions  of  people  speaking 
for  themselves  through  their  own  representatives,  and  saying  "  you 
for  me  and  in  my  name  and  stead  count  these  votes."  It  is  legisla 
tive  action,  and  not  judicial,  but  it  must  be  truthful ;  and  it  was  con 
ferred  upon  the  legislative  power  from  the  very  fact  that  the  Senate 
representing  the  States,  the  Representatives  representing  the  people 
of  the  whole  nation,  the  question  of  succession  being  known  as  the 
question  that  would  ultimately  involve  the  greatest  danger  to  our 
institutions,  and  that  there  could  be  no  human  foresight  that  could 
conceive  of  every  possible  emergency  that  might  arise,  and  in  order 
that  there  might  be  no  casus  omissus,  it  was  put  into  the  hands  of  the 
States  and  the  people,  intending  tha  t  from  the  broad  view  of  the  legis 
lator,  from  the  broad  range  of  evidence  that  he  takes  into  view,  and 
from  his  mode  of  thought  he  should  decide  upon  this  counting  on  prin 
ciples  of  original  justice  with  discretionary  application,  which  is  the 
definition  given  by  Mr.  Burke  of  legislative  power.  So  that  from 
original  justice,  not  as  a  court  with  discretionary  application,  intended 
by  those  who  conferred  the  power  upon  the  States  and  the  people, 
you  are  to  count  this  vote,  not  for  candidates,  but  for  your  country, 
and  count  it  truly.  There  should  be  no  blinding  of  the  eyes  before 
we  assume  to  count  it. 

With  those  preliminary  views,  we  will  proceed  to  consider  the  count 
of  the  votes.  Here  are  two  certificates  presented,  each  of  which  rep 
resents  eight  electors,  each  of  which  bears  the  seal  of  a  State,  each 
of  which  bears  the  signature  of  a  governor.  Shall  both  be  counted  ? 
Shall  either  ?  Or  shall  neither  ?  If  I  ask  whether  both  shall  not  be 
counted,  what  is  the  response?  The  response  is  in  the  language  of 
the  Constitution,  very  simple,  very  short.  Both  cannot  be  counted, 
because  the  Constitution  provides  that  a  number  of  electors  equal  to 
the  whole  number  of  Senators  and  Representatives  to  which  the  State 
may  be  entitled  in  the  Congress  only  shall  be  appointed.  The  Con 
stitution  at  once  meets  you,  because  the  number  is  prescribed  therein. 
You  immediately  say,  "Both  cannot  be  counted."  Then  that  is  dis 
posed  of,  and  disposed  of  because  the  Constitution  says  that  only  a 
fixed  number  shall  be  counted;  but  the  Constitution 'in  identically 
the  same  clause  fixes  the  other  qualifications.  It  fixes  as  to  the  man 
ner  of  their  choosing  and  as  to  the  qualifications  these  men  shallhave 
who  shall  be  chosen.  If  you  settle  it  peremptorily  and  speedily  when 
the  Constitution  meets  you  in  reference  to  the  number,  have  you  a 
right  on  some  man's  certificate  to  say,  "  I  will  ponder  awhile  whether 
I  will  recognize  the  Constitution  as  to  manner  or  as  to  qualification  ?  " 
The  answer  should  be  equally  prompt.  As  the  Legislatures  of  the 
States  direct  is  the  manner,  with  the  qualification  that  no  person 
holding  an  office  of  trust  or  profit  under  the  United  States  shall  be 
appointed  an  elector;  then  let  us  meet  the  question, if  we  find  the 
facts  to  show  a  violation  of  the  provision  of  the  Constitution  as  to 
manner  or  as  to  qualifications,  with  the  same  promptness  with  which 
we  would  meet  it  with  reference  to  the  number. 

Then  let  us  proceed  to  the  count.  You  cannot  count  both,  because 
the  Constitution  limits  the  number.  Then  they  must  be  chosen  as 
the  Legislature  directs.  They  are  not  both  genuine  then  is  the  con 
clusion  you  come  to.  The  inquiry  would  be  if  you  were  investigat 
ing  something  else  and  found  some  real  and  some  false,  which  is  the 
genuine  ?  And  the  same  principle  you  would  apply  to  such  an  inquiry 
should  be  applied  here  now  :  which  is  genuine  ?  If  either  one  con 
forms  to  the  law  of  the  land  in  all  essential  particulars,  that  is  gen 
uine.  If  either  fails  to  conform  to  the  law  of  the  land  in  any  essen 
tial  particular,  that  is  false.  Then  it  necessarily  involves  the  inquiry 
as  to  which  conforms  to  the  law  of  the  land,  "if  either  does,  it  is  to 
be  counted ;  but,  if  neither  does,  you  cannot  count  either. 

Then  what  are  the  provisions  of  the  law  of  the  land  ?  With  refer 
ence  to  the  McEuery  certificate,  the  certificate  No.  2,  as  it  has  been 
designated  by  the  Commission,  we  claim  and  are  prepared  to  prove 
that  those  electors  were  elected  in  the  manner  prescribed  by  the 
State  of  Louisiana.  Second,  we  are  prepared  to  prove  that  the 
electors  that  are  certified  to  by  Mr.  Kellogg  were  not  elected  in  con 


formity  to  the  laws  of  Louisiana.    Will  you  accept  the  proof  ?    That 
is  our  offer,  and  we  can  establish  it. 

Then  if  wo  establish  that  the  one  is  elected  according  to  the  legis 
lative  provisions  of  the  State  of  Louisiana  you  have  it  precisely  ou 
the  same  principle  on  which  you  rule  that  both  shall  not  be  counted. 
The  constitutional  provision  is  identical  and  equally  imperative.  We 
are  also  prepared  to  prove  that,  in  pursuance  of  the  statutes  of  the 
United  States,  the  one  set,  the  McJEnery  electors,  were  elected  on  the 
7th  day  of  November,  and  the  other,  the  Kellogg  electors,  were  not 
elected  until  the  6th  day  of  December;  so  that  affirmative  law,  in 
addition  to  the  Constitution,  will  be  in  favor  of  counting  certificate 
No.  2.  We  are  also  prepared  to  show  that  those  who  claim  under  cer 
tificate  No.  2  voted,  exercised  their  right  of  office,  on  the  day  pre 
scribed  by  law. 

Then  in  every  essential  particular  certificate  No.  2  is  in  precise  con 
formity  to  law.  Certificates  Nos.  1  and  3  lack,  first,  the  qualification 
that  the  men  named  therein  were  not  elected  in  pursuance  of  the  mode 
presci'ibed  by  the  Legislature,  and  they  were  not  elected  on  the  day 
prescribed  by  the  act  of  Congress.  It  would  seem,  if  these  facts  are 
established,  that  certificate  No.  2  most  nearly  conforms  ;  but  we  may 
consider  whether  it  is  sufficiently  evidenced  hereafter,  because  the 
questions  of  evidence  arise  even  after  the  real  merits  shall  have  been 
established,  but  if  we  establish  these  facts  certificate  No.  2  is  that 
which  most  nearly  conforms  to  law,  and,  as  we  claim,  in  every  essen 
tial  particular. 

If  these  two  certificates  come  in  collision,  shall  the  provision  which 
says  the  executive  shall  certify  override  the  provision  of  the  Consti 
tution  which  prescribes  the  mode  of  choice,  and  override  that  pro 
vision  of  the  act  of  Congress  which  fixes  that  the  time  of  election 
shall  be  on  a  given  day,  the  7th  day  of  November  in  this  case?  It 
seems  to  me  it  ought  not,  and  if  the  formal  be  preferred  to  the  sub 
stantial,  it  ought  not  to  be.  Then  suppose  the  element  of  fraud  enter 
into  the  formal,  and  we  propose  to  prove  that  the  certificate  as 
signed  by  Governor  Kellogg  was  procured  through  the  fraudulent 
acts  of  a  returning  board.  But  it  may  be  objected  that  we  have  no 
right  to  inquire  into  that.  I  was  struck  somewhat  with  the  argu 
ment  made  concerning  the  successive  steps  in  an  election,  as  they 
were  announced  a  day  or  two  since  by  one  of  the  honorable  gentle 
men,  and  the  peculiar  feature  which  marked  it  was  that  he  stopped 
just  at  the  place  that  suited  his  argument  and  thereby  eliminated  the 
whole  power  of  the  United  States  Government.  He  stepped  right  up 
until  the  electors  have  cast  their  votes,  and  then  announced,  "  then 
the  thing  is  ended  ;"  then  every  avenue  of  truth  is  cut  off.  A  State 
may  do  what  she  pleases,  fraudulently,  and  the  United  States  can 
not  inquire  into  it.  Is  this  true  ?  Is  it  intended  that  the  Senate  and 
House  of  Representatives  of  the  United  States  shall  be  compelled  to 
certify  to  what  they  know  to  be  false  and  transmit  it  into  history  in 
this  way  ?  It  does  not  seem  to  me  to  be  possible.  Has  the  State  of 
Louisiana,  or  Florida,  or  any  other  State  the  right  to  put  in  the  food 
that  we  all  must  eat,  poison,  and  require  us  to  eat  it?  It  seems  to 
me  we  have  some  say-so  in  such  a  matter.  The  thirty-seven  other 
States  have  an  interest  as  well  as  Louisiana  or  Florida  or  any  single 
State,  and  the  United  States  Government,  until  the  votes  are  opened 
in  the  Houses,  has  no  opportunity  to  know  whether  it  is  food  or  poi 
son  ;  if  a  State  violates  the  Constitution  of  the  United  States  by  force 
we  call  a  million  of  men  to  crush  her  ;  but  if  by  fraud,  we  are  to  take 
the  poison  and  let  the  nation  die.  Is  that  true  or  is  it  false  ?  It  is  not 
true.  This  nation  has  power  to  guard  against  fraud  as  she  has  against 
force,  and  when  it  is  our  duty  to  count,  the  two  great  bodies,  rep 
resenting  the  States  and  representing  the  people,  have  a  right  to  say 
when  fraud  is  injected  therein,  "  we  will  exclude  that  and  accept  only 
that  which  is  honest  and  bonafide." 

But  suppose  the  certificate  of  the  governor  had  been  procured  by 
a  band  of  buccaneers  sailing  up  the  river  to  New  Orleans,  capturing 
Governor  Kellogg,  taking  him  on  board  their  ship,  and  forcing  him 
to  sign  his  name  to  that  certificate,  and  thus  perpetrating  it  upon 
the  United  States,  would  you  hesitate  a  moment  to  inquire  concern 
ing  that  ?  If  instead  of  that  a  band  of  more  insidious  scoundrels 
deceive  him  and  induce  him  to  sign  that  certificate,  does  that  render 
it  more  sacred  ?  It  seems  to  me  Mars,  the  god  of  war,  was  more  re 
spectable  than  Mercury,  the  god  of  thieves.  Insidious  villainy  does 
not  commend  itself  to  us  as  much  as  actual  force.  In  no  judicial  tri 
bunal  nor  in  any  legislative  tribunal  ought  it  to  be  accepted  as 
worthy  of  any  more  sanctity.  But  suppose,  in  addition  (and  this  we 
expect  to  prove)  to  the  returning  board  poisoning  these  returns,  that 
the  governor  who  issued  the  certificate  was  himself  a  party  to  it, 
does  the  fact  that  he  was  dishonest,  a  member  of  the  same  band  of 
conspirators,  render  it  more  sacred  than  if  he  had  been  an  honest 
man  ?  Can  ho  by  his  own  villainy  sanctify  his  villainous  act  ?  Can 
he  take  advantage  of  it  himself  for  his  own  aggrandisement  ?  It 
seems  to  me  these  propositions  need  no  argument ;  hence  I  merely 
state  them. 

Then  our  allegation  is,  first,  that  these  certificates,  Nos.  1  and  3, 
and  I  may  here  call  attention  to  the  only  explanation  I  know  of  any 
sufficient  probability  by  which  to  account  for  the  "  certificates"  1  and 
3,  as  found  in  the  evidence  as  taken  before  the  congressional  commit 
tee.  Each  member  of  the  returning  board  had  sworn  that  the  can 
vass  of  votes  on  which  they  promulgated  their  result  was  not  obtained 
earlier  than  eight  o'clock  in  the  evening  of  the  5th  of  December.  A 


ELECTORAL  COMMISSION. 


63 


newspaper  reporter  by  the  name  of  Smith,  investigating,  as  is  their 
wont,  around  the  State-house,  discovered  that  in  the  afternoon  of  the 
5th,  about  two  or  three  o'clock,  the  certificate  of  election  for  the  ro- 
publican  electors  had  been  made  ont ;  and  yet  the  returning  board 
swore  they  never  knew  nor  had  any  idea  until  after  they  had  finished 
their  counting  that  there  was  a  majority  for  one  side  or  the  other, 
but  their  certificates  were  already  prepared.  This  passed  into  the 
newspapers,  and  as  a  consequence  it  became  necessary  to  make  two 
certificates,  and  they  were  made,  we  say  the  second  set  as  well  as  the 
first,  so  that  if  you  have  difficulty  in  arriving  at  the  fact,  why  there 
are  these  double  certificates.  That  is  the  only  explanation  I  find  in 
the  evidence. 

But  I  will  proceed  with  the  facts,  for  it  was  not  my  intention  to 
have  entered  on  a  legal  discussion  at  all,  because  the  facts  are  suffi 
ciently  important  as  a  groundwork  for  future  action  to  be  laid  be 
fore  the  Commission.  With  reference  to  the  facts,  the  first  fact  we 
present  would  be  this :  that  the  Legislature  has  directed  that  the 
electors  shall  be  appointed  by  a  popular  vote.  I  need  not  refer  to 
the  statute  to-  establish  that  the  evidence  is  in  the  revised  statutes. 
The  second  fact  is  that  on  the  popular  vote  cast  in  that  State,  undis 
puted  by  any  one,  and  as  proven  from  the  only  record  evidence  of  the 
State,  there  is  a  majority  of  between  6,000  and  9,000  in  favor  of  the 
Tilden  electors,  an  average  of  7,639, 1  believe,  depending  upon  which 
you  compare  with  the  others  ;  but  the  majority  is  not  less  than  6,000 
and  it  is  not  in  excess  of  9,000.  That  is  the  second  fact. 

Here  I  may  call  attention  to  the  only  mode  of  arriving  at  the  truth 
of  this  case  in  reference  to  this  point.  The  papers  that  pass  into  the 
hands  of  the  returning  board  are  only  ephemeral.  They  are  not 
made  records.  There  is  no  place  for  their  preservation.  They  pass 
into  the  hands  of  this  board,  and  where  they  go  from  that  no  one 
knows  by  law.  As  a  fact  they  distribute  themselves  pretty  miscella 
neously  ;  but  the  law  provides  no  place  for  their  preservation,  and 
they  are  only  intended  for  the  temporary  purpose  of  a  canvass.  Then 
from  the  returning  board  there  is  no  record  evidence  or  mode  of  test 
ing  the  veracity  of  their  acts ;  but  the  law  has  provided  a  record 
evidence,  and  that  is  this :  Every  commissioner  of  election  shall  file 
his  statement  with  the  supervisor  of  registration  in  duplicate.  The 
supervisor  of  registration  shall  make  out  his  statements  in  duplicate. 
Of  those  duplicates  of  the  commissioners  of  election  and  supervisors 
of  registration,  one  is  to  be  sent  to  the  clerk  of  the  court  in  the  par 
ish,  and  the  other  to  the  returning  board.  That  of  the  returning 
board  is  temporary  ;  the  other  goes  as  a  standing  monument  in  evi 
dence  of  title.  Then  from  the^e,  the  only  monuments  of  title,  placed 
on  record  in  that  State  with  the  several  courts  of  record,  this  is  the 
result ;  but  the  result  was  changed  in  some  way,  and  it  was  changed 
so  that  a  certificate  was  given  by  Governor  Kellogg ;  it  was  done  by 
the  excluding  of  13,236  democratic  votes  and  2,178  republican  votes, 
a  difference  of  11,058. 

In  this  connection,  in  order  that  I  may  answer  the  question  sug 
gested  by  the  honorable  Senator  from  Ohio,  I  will  give  a  statement 
of  the  different  parishes  and  the  facts  with  reference  to  them.  So  far 
as  protest  is  concerned,  it  has  already  been  elaborated  before  the  Com 
mission  that  where  there  is  a  protest  filed,  if  the  law  be  constitu 
tional,  there  is  power  on  the  establishment  of  certain  facts  to  exclude 
certain  votes  or  certain  polls.  Now,  this  is  a  law  conferring  special 
jurisdiction,  and  as  we  know  it  must  receive  a  strict  construction.  If 
there  be  any  element  that  is  necessary  to  give  this  jurisdiction  not  in 
the  evidence  before  it,  it  has  no  jurisdiction,  and  its  acts  so  far  as  this 
extraordinary  power  is  concerned  are  entirely  void.  In  order  to  ob 
tain  jurisdiction  there  must  be  a  protest  filed  by  the  supervisor  of 
registration  if  there  be  intimidation  or  fraud  during  the  period  of  reg 
istration  or  revision  of  registration.  He  has  no  power  to  file  a  pro 
test  with  reference  to  violence  or  anything  of  the  kind  on  election 
day ;  but  it  is  only  during  the  registration  and  revision  of  registra 
tion  that  he  has  any  authority  to  file  any  protest.  Then  the  commis 
sioners  of  election  on  election  day  may  file  protests  for  violence  on 
election  day.  If  it  be  not  done  by  one  of  these  parties,  there  is  no 
power  to  inquire  concerning  it,  and  if  inquiry  be  made  it  is  a  usurpa 
tion  ;  and  in  addition  to  that  we  will  prove  the  exercise  of  such  power 
is  a  fraud  which  was  intentionally  perpetrated  in  the  alleged  can 
vass  by  the  returning  board  of  Louisiana  in  this  case. 

Of  these  protests  there  must  be  duplicates ;  of  the  duplicates  one  is 
transmitted  to  the  returning  board,  the  other  filed  in  court.  That 
filed  in  court  is  placed  there  in  order  that  there  may  be  a  prosecution 
by  the  district  attorney  for  the  crime,  and  for  the  additional  purpose 
that  the  people  of  a  parish,  poll,  or  whatever  may  be  objected  to,  may 
know  what  is  charged  against  them,  in  order  that  they  may  stand  for 
their  rights ;  because  it  is  not  possible  that  the  right  of  suffrage  of  the 
people  of  a  whole  parish  may  be  taken  from  them  by  the  inquisitorial 
proceedings  before  such  a  board  as  this,  and  of  which  they  never  had 
notice,  when  the  law  says  duplicates  shall  be  filed  iu  the  courts.  Hence 
if  there  be  no  duplicate  filed  in  court  there  is  no  jurisdiction;  and  I 
may  now  state,  as  a  generality;  that  with  the  exception  of  the  par 
ishes  of  Bossier  and  Concordia  there  was  not  a  single  protest  filed  in 
court  in  the  State  of  Louisiana.  In  Concordia  there  was  not  a  single 
vote  thrown  out,  because  it  was  republican  in  all  its  polls.  In  Bos- 
Bier  there  some  one  hundred  votes  or  so  thrown  out,  because  there 
were  democratic  polls  in  that  parish.  We  will  now  go  over  the  sev 
eral  parishes. 

Hereit  may  be  necessary  to  explain  that  the  supervisor  of  registration 


is  to  receive  the  returns  of  the  commissioners  of  elections,  and  within 
twenty-four  hours  of  the  date  of  their  receipt  send  them  by  mail, 
sealed  up,  to  the  returning  board.  He  has  no  more  power  or  discre 
tion  concerning  the  votes  that  are  cast,  their  reception  or  their  ex 
clusion,  than  has  the  mail-boy  to  determine  whether  the  letters  in  his 
mail-bag  are  such  as  should  be  carried  or  not — not  a  mite  of  discre 
tion,  but  simply  that  of  an  instrument  of  transmission,  nothing  more 
and  nothing  less.  The  supervisor  of  registration  in  East  Baton  Rouge, 
although  the  constitution  of  the  State  requires  that  all  her  officers 
shall  be  citizens  of  the  State  and  the  parish  officers  citizens  of  the 
parish  in  which  they  officiate  and  citizens  of  the  State,  this  man  F. 
A.  Clover  was  appointed  a  supervisor  of  registration  for  East  Baton 
Rouge,  being  a  citizen  of  Mississippi,  holding  two  offices  in  the  State 
of  Mississippi  until  the  1st  of  January,  1876,  and  it  takes  one  year  to 
acquire  a  residence  in  Louisiana.  After  that  he  came  some  time  in 
March  to  Louisiana,  and  engaged  as  a  runner,  or  in  the  technical  par 
lance  of  that  vicinity  he  became  a  roper-in  for  a  snake  show ;  that  is, 
a  caller-in  to  a  gambling  tent  on  the  wharf.  He  continued  in  that 
vocation  until  the  27th  of  August,  when  he  was  appointed  supervisor 
of  East  Baton  Rouge,  because  East  Baton  Rouge  it  was  known  was 
becoming  strongly  democratic. 

Clubs  had  been  organized  there  in  which  there  were  from  five  hun 
dred  to  seven  hundred  colored  voters  and  it  became  necessary  to  put 
this  parish  under  the  charge  of  a  particularly  appropriate  supervisor 
of  registration.  This  supervisor  of  registration  of  East  Baton  Rouge 
filed  no  protest  with  the  clerk  of  the  court,  none  is  found  on  file,  it  is 
so  proven  by  the  testimony  as  taken  according  to  law,  because  we 
say  that  the  testimony  taken  by  Congress  is  a  part  of  this  record. 
This  is  a  legislative  tribunal  as  to  practice  in  proceeding.  The  law 
says,  you  shall  receive  petitions,  depositions,  &c.,  as  provided  by  the 
law  of  the  land.  What;  law?  The  law  with  reference  to  legislative 
bodies  who  have  the  counting  of  this  vote.  If  all  the  citizens  of  the 
United  States  who  choose  send  a  petition  in,  it  would  be  your  duty 
to  receive  it  in  evidence,  giving  it  its  proper  weight.  If  the  differ 
ent  Houses  of  Congress  have  tak«n  testimony,  it  is  your  duty  to  re 
ceive  it,  because  by  the  law  of  the  land,  through  all  time,  that  has 
been  the  mode  of  taking  testimony  in  the  several  Houses  of  Congress, 
and  this  body  is  acting  with  the  powers  and  under  the  obligations  sub 
stantially  as  though  it  were  a  congressional  body.  Then  the  super 
visor  of  registration  of  East  Baton  Rouge  threw  out  1,147  democratic 
votes  and  47  republican  votes,  making  a  change  of  1,100  in  that 
parish. 

Mr.  Commissioner  THURMAN.  The  supervisor  of  registration,  not 
the  returning  board? 

Mr.  Representative  JENKS.  Not  the  board ;  it  was  before  they  got 
to  the  board  that  this  roper-in  for  the  snake  show  did  this,  and  the 
evidence  was  before  the  returning  board  as  to  what  the  true  vote 
was ;  and  they,  with  that;  fidelity  which  was  indicated  by  a  dispatch 
sent  by  their  attorney,  John  Ray,  that  by  throwing  out  five  parishes 
the  State  would  be  republican,  (and  this  was  one  of  them,)  accepted 
his  act  and  never  inquired  concerning  it.  Eleven  hundred  were 
thrown  out  by  an  officer  with  no  more  power  than  a  mail-carrier  with 
notice  to  the  board  that  he  had  done  it,  with  the  actual  vote  placed 
before  them  they  by  their  act  reply  that  takes  that  much  burden  off 
our  shoulders  and  we  leave  it  so. 

After  the  supervisorof  registration  had  thrown  out  1,100  votes,  that 
is,  1,100  of  a  difference,  the  board  then  took  two  polls,  12  and  14,  and 
at  poll  No.  12  threw  out  162  democratic  votes  and  4  republican  votes. 
At  poll  No.  14  they  threw  out  144  democratic  votes  and  6  republi 
can  votes  in  that  parish,  making  a  difference  of  1,396  ;  and  no  pro 
test  filed  in  court,  no  notice  to  a  single  citizen  of  East  Baton  Rouge, 
and  yet  they  were  being  disfranchised  by  the  thousand ;  and  this 
purports  to  be  a  free  government ! 

The  next  is  West  Feliciana.  There  was  no  protest  filed  in  court  in 
that  parish.  There  were  1,010  democratic  votes  thrown  out  and  154 
republican ;  no  protest  filed,  no  opportunity  for  the  citizens  to  know 
the  truth,  making  a  difference  of  856. 

In  East  Feliciana  there  was  no  protest  filed  with  the  clerk  of  the 
court.  There  were  1,736  democratic  votes  thrown  out  and  1  republi 
can,  and  this  is  the  parish  over  which  they  rejoice  as  conclusive  evi 
dence  of  intimidation.  The  governor  of  the  State,  we  are  prepared 
to  prove,  had  notice  in  advance  that  the  colored  people  were  passing 
into  the  democratic  party  in  large  masses.  The  supervisor  of  regis 
tration  it  was  first  contemplated  should  not  go  there  at  all,  and  thereby 
prevent  an  election.  But  in  consequence  of  hoping  to  carry  two 
members  of  the  Legislature  he  was  instructed  to  go  back  and  did  go 
back ;  but  there  were  no  republican  tickets  sent  there,  and  hence 
there  was  but  1  republican  vote  cast.  The  arrangement  was  made  to 
keep  the  tickets  away,  they  did  not  go,  and  the  consequence  of  it  was 
1  republican  vote  and  1,736  democratic,  and  that  was  intended  as  evi 
dence  of  intimidation.  But  we  stand  on  the  legal  proposition  that 
there  was  no  protest  filed,  and  being  without  jurisdiction  the  act  of 
throwing  out  was  usurpation. 

The  next  was  New  Orleans.  There  were  none  thrown  out  by  the 
board,  but  there  were  three  polls  thrown  out  by  the  supervisors  of 
registration,  these  mail-carriers.  There  were  993  democratic  votes 
thrown  out,  and  346  republican  votes,  making  647  of  a  difference  in 
New  Orleans.  They  were  thrown  out  on  very  different  pretexts. 
One  was  thrown  out  because  for  the  single  elector  De  Blanc  it  was 
uiicertiuu  ou  the  commissioner's  statement  whether  the  number  of 


64 


ELECTORAL  COMMISSION. 


votes  cast  was  247  or  249;  that  is,  the  figure  7  was  not  made  with 
sufficient  accuracy  by  the  commissioner  of  election  to  know  certainly 
whether  it  was  a  7  or  a  9 ;  and  because  the  supervisor  of  registration 
could  not  decipher  that  figure  ho  threw  out  the  whole  poll ;  and  al 
though  that  fact  was  called  to  the  attention  of  the  returning  board, 
they  went  over  it  and  excluded  it  in  their  count.  If  this  is  not  an 
abomination  that  a  great  nation  is  not  bound  to  submit  to,  I  would 
ask  you  what  you  would  call  an  abomination  ? 

The  next  is  Claiborue.  There  was  no  protest  filed  of  any  kind  with 
the  board  or  elsewhere,  and  184  votes  were  thrown  out.  In  Caldwell 
there  was  no  protest  filed  whatever,  and  141  democratic  votes  were 
thrown  out  and  74  republican,  making  67  of  a  difference.  In  Frank 
lin  74  democratic  and  28  republican  votes  were  thrown  out,  a  differ 
ence  of  46 ;  and  there  was  no  protest.  In  Catahoula  there  was  no 
protest  whatever,  and  97  democratic  votes  were  thrown  out  and  20  re 
publican,  making  77  of  a  difference.  In  Eichland  there  was  no  pro 
test  filed  with  the  clerk  of  the  court,  and  there  was  no  protest  filed 
either  with  the  returning  board  until  the  30th  day  of  November. 
When  the  supervisor  of  registration  brought  in  his  returns,  instead 
of  sending  them  by  mail  he  carried  them,  and  that  brought  him  in 
connection  with  the  custom-house,  and  the  custom-house  was  in  need 
of  witnesses,  as  they  stated.  The  consequence  was  they  gave  this 
supervisor  of  registration  $150  to  pay  witnesses,  and  he  filed  a  pro 
test  on  the  30th  of  November  with  the  returning  board,  and  the  con 
sequence  was  that  they  excluded  770  democratic  votes  and  137  repub 
lican  votes,  making  613  of  a  difference  in  majorities ;  and  you  are  asked 
to  sanction  that.  The  supervisor  of  registration  received  $150  under 
the  nominal  pretext  of  searching  for  witnesses,  and  some  seventeen 
days  after  he  has  made  his  original  return  his  conscience  then  becomes 
enlightened  and  he  files  a  protest  with  the  board,  but  not  in  court ; 
and  you  are  to  count  the  votes  as  so  manipulated  and  say  it  is  right! 

Mr.  Commissioner  THURMAN.  Was  the  protest  in  regard  to  reg 
istration  ? 

Mr.  Representative  JENKS.  The  protest  was  a  general  one,  that 
there  was  intimidation.  There  is  «not  a  single  one  of  these  protests 
that  in  a  legal  tribunal  or  before  an  honest  board  comes  up  to  the 
requisition  of  the  law. 

Mr.  Commissioner  THURMAN.  If  I  understood  your  statement  be 
fore,  the  supervisor  of  registration  has  no  ditty  to  perform  in  protest 
ing  in  respect  to  the  election,  but  only  in  respect  to  registration. 

Mr.  Representative  JENKS.  None  at  all  in  reference  to  election 
day,  but  during  the  period  of  registration  and  the  revision  of  regis 
tration.  His  official  right  to  protest  began  on  the  28th  of  August  and 
terminated  on  the  evening  before  election  day,  and  only  extends  to 
such  acts  as  interfered  with  registration  and  revision,  and  whenever 
election  day  comes  then  his  power  is  exhausted  and  the  commission 
ers  of  election  then  make  the  protest.  That  is  the  way  the  law  di 
vides  the  duty. 

The  next  parish  is  Morehouse.  There  was  no  protest  filed  of  any 
kind.  The  number  of  democratic  votes  thrown  out  by  the  board 
was  985,  of  republican  357,  making  a  difference  of  628.  In  Ouachita 
Parish  there  was  a  protest  filed  with  the  board,  but  not  in  court. 
There  were  1,517  democratic  votes  thrown  out  and  48  republican, 
making  a  difference  of  1,469.  In  Madison  there  were  63  votes  added 
to  the  republican  vote  as  returned  by  the  commissioners  of  election 
to  the  supervisor  of  registration.  That  was  an  act  of  extended  dis 
cretion,  I  presume.  Whenever  a  vote  was  not  what  they  (the  board) 
conceived  it  ought  to  be,  they  assumed  the  right,  as  in  Vernon  Par 
ish,  to  make  it  what  they  thought  it  should  be ;  and  if  this  be  repub 
lican  in  form,  how  will  you  define  a  republic  ?  If  a  board  has  a 
right  to  say  how  an  election  shall  result  at  its  own  discretion,  without 
regard  to  the  vote  actually  cast,  how  are  you  to  define  what  a  re 
public  is  ? 

Then  in  Webster  there  was  no  protest  filed  whatever.  There  were 
436  democratic  votes  thrown  out  and  194  republican,  making  242  of 
a  difference.  In  Bossier  there  was  a  protest  by  the  supervisor  of 
registration,  but  not  by  the  commissioners  of  election.  Bossier,  as 
I  stated  before,  and  Concordia  are  the  only  two  parishes  where  there 
were  any  protests  filed  with  the  clerks  of  the  courts.  Here  was  a 
protest  filed  by  the  supervisor  of  registration,  but  it  related  to  acts 
of  violence  on  election  day  over  which  he  had  no  jurisdiction,  and 
hence  that  action  was  void.  The  number  thrown  out  there  against 
the  democracy  was  342  of  a  majority. 

In  Natchitoches  there  was  no  protest  of  any  kind.  The  number  of 
democratic  votes  thrown  out  was  343,  republican  7,  making  a  differ 
ence  of  336.  No  protest  was  filed  whatever ;  that  is,  no  protest  filed 
with  the  clerk  of  the  court.  There  was  a  protest  filed  with  the  board 
made  after  the  election  by  the  supervisor  of  registration  with  refer 
ence  to  transactions  that  occurred  on  election  day  principally  and 
after  the  time  limited  by  law  for  him  to  make  protest. 

Here  it  is  claimed  the  statute  is  directory  as  to  the  time  of  the  pro 
test.  As  the  duty  of  the  supervisor  of  registration  is  a  simple  one, 
he  only  being  empowered  to  pack  up  the  statements  and  put  them  in 
an  envelope  and  mail  them,  he  has  but  twenty-four  hours  to  do  it,  and 
the  statute  required  that  he  should  send  them  from  the  place  where 
they  were  received  and  not  carry  them  in  person,  in  order  that  there 
might  not  be  a  comparison  of  results  at  the  capital,  as  there  was  in 
this  case,  and  then  go  to  cutting  and  fitting  to  match  results  as  they 
might  desire.  So  that  that  part  of  it  is  not  directory.  It  is  not  nec 


essary  it  should  be  so  considered ;  for  if  it  be  directory  and  they  vio 
lated  it  unnecessarily,  that  is  presumptive  evidence  of  fraud. 

In  Vemon  there  was  no  protest  whatever.  They  took  jurisdiction 
without  evidence.  They  threw  out  178  democratic  votes  and  added 
179  to  the  republican  side — a  difference  of  357.  In  Iberia  there  was 
no  protest  and  333  democratic  and  11  republican  votes  were  thrown 
out,  making  a  difference  of  322.  The  reason  these  votes  were  thrown 
out  was  that  the  law  requires  that  when  the  voter  shall  have  voted 
it  shall  be  written  on  the  back  of  his  certificate  of  registration 
"  voted."  In  the  morning  the  officers  of  election  at  one  poll  did  not 
write  on  the  back  of  the  certificate  of  the  electors  "voted"  until 
about  one  hundred  votes  had  been  cast.  After  that,  finding  it  was 
their  duty  to  so  do,  they  did  write  it.  This  fact  was  communicated 
to  the  board,  and  the  upshot  of  it  was  that  they  threw  out  the  whole 
poll  because  it  gave  322  of  a  democratic  majority. 

Then  in  La  Fayette  there  was  no  protest  in  court.  Two  polls  were 
rejected  by  the  supervisor  of  registration.  The  number  thrown  out 
was  518  democratic  and  7  republican. 

In  La  Fourche  no  protest  was  filed  in  court.  Two  polls  were  thrown 
out  by  the  supervisor  of  registration  in  one  of  which  142  votes  were 
democratic  as  against  104  republican,  making  38  of  a  difference,  and 
in  the  other  127  of  a  difference  in  majorities  against  the  democratic 
electors. 

In  Livingston  there  was  no  protest  filed  of  any  character.  The 
democratic  majority  of  328  was  thrown  out.  In  Saint  Laudry  there 
was  no  protest  filed  and  poll  No.  9  was  thrown  out  with  a  democratic 
majority  of  82.  In  Tangipahoa  there  was  no  protest  filed  in  court. 
Poll  No.  10  was  not  compiled ;  that  is,  it  was  thrown  out  by  the  super 
visor  of  registration  ;  and  poll  No.  3  was  excluded,  making  76. 

There  is  a  coincidence  that  I  wish  to  call  attention  to  here.  If  ac 
cidents  do  happen  it  is  a  little  singular  that  they  always  happen  in  one 
direction ;  and  if  you  find  this  fact  to  exist  that  the  accidents  happen 
in  the  direction  that  the  person  who  occasions  their  happening  would 
desire  accidents  to  happen,  it  is  a  ground  for  suspicion  that  possibly 
it  may  not  have  been  an  accident.  Then  when  you  take  this  fact 
into  consideration  that  the  acting  governor  of  the  State  was  a  repub 
lican,  that  he  appoints  the  State  supervisors  of  registration  and  ho 
also  appoints  every  supervisor  of  registration  in  the  State,  the  super 
visors  of  registration  appoint  every  commissioner  of  elections  in  the 
State ;  the  clerks  of  the  supervisors  of  registration  were  usually  re 
publicans  ;  I  believe  there  were  one  or  two  instances  in  which  there 
were  exceptions — every  single  mistake  that  was  made  happened  to 
cut  just  one  way.  That  suggests  the  possibility  that  there  might  be 
design  in  it,  so  strong  that  when  we  give  some  additional  facts  which 
we  will  state  directly,  it  seems  to  me  almost  conclusive  of  design. 

But  it  is  probably  now  my  duty  to  answer  what  they  may  say.  I 
have  stated  that  there  were  no  protests  at  all  in  certain  cases.  That 
is  evaded  by  a  proposition  that  parties  in  interest  may  have  a  hearing 
before  the  board  under  the  provisions  of  the  thirty-sixth  section  of 
the  act.  After  stating  that  the  supervisor  of  registration  shall  file 
protests,  &c.,  it  proceeds : 

Provided,  That  any  person  interested  in  said  election  by  reason  of  being  a  can 
didate  for  office  shall  bo  allowed  a  hearing  before  said  returning  officers  upon  mak 
ing  application  within  the  time  allowed  for  the  forwarding  of  the  returns  of  said 
election. 

That  provides  for  a  hearing.  This  tribunal  cannot  entertain  an 
original  pleading  between  parties,  because  if  it  did  it  would  be  clearly 
and  wholly  judicial.  If  the  claimant  of  an  office  has  a  right  to  come 
before  this  board  and  allege  that  he  was  elected,  of  course  his  oppo 
nent  has  a  right  to  deny  that  allegation.  We  then  find  every  element 
constituting  a  court.  There  is  the  actor,  the  reus,  thsjudex,  full  judi 
cial  characteristics  in  all  particulars ;  and  yet  the  constitution  of 
Louisiana  says  that  all  judicial  powers  shall  be  vested  in  certain 
courts,  and  that  none  shall  be  exercised  by  any  other  authority.  So 
it  is  not  possible  that  the  "hearing"  contemplated  was  that  certain 
men  might  go  over  the  State  and  file  protests,  as  they  did  in  this  case, 
against  nearly  every  parish  in  the  State ;  so  that  when  I  say  there  was 
no  protest,  I  say  the  protest  by  the  officers  who  claimed  to  have  been 
elected  was  no  protest  at  all,  as  contemplated  by  this  act,  and  was  a 
nullity ;  and  if  you  count  the  others  who  filed  no  protests  in  court, 
and  throw  out  every  vote  that  was  thrown  out  under  them,  and  say 
that  this  general  protest  was  not  lawfully  filed — and  you  can  say  noth 
ing  else  as  to  this  alleged  general  protest,  as  I  understand  the  law — it 
still  leaves  a  very  considerable  majority  in  favor  of  the  McEnery 
electors. 

I  have  gone  through  seriatim  the  statements  of  the  several  parishes. 
I  will  now  pass  to  more  general  evidence  of  fraud.  However,  there 
is  another  system  of  facts  which  it  is  my  duty  to  call  the  attention 
of  the  Commission  to  in  order  that  there  may  be  a  full  opening. 
There  are  certain  persons  who  are  alleged  to  be  disqualified.  A.  B. 
Levissee  and  Mr.  Brewster  are  disqualified  under  the  Constitution  of 
the  United  States.  We  will  prove  that  Levissee  was  a  commissioner 
appointed  bv  a  circuit  court  of  the  United  States  holding  at  the  time 
of  the  election.  We  will  prove  that  Mr.  Brewster  was  surveyor  of 
the  land  office  for  the  laud  district  of  Louisiana.  He  swears  him 
self  that  three  or  four  days  after  the  election  he  wrote  a  letter  resign 
ing  and  asking  that  it  might  take  effect  as  of  the  4th  of  November. 
This  letter  was  written  on  the  10th  or  llth  of  November.  It  was 
mailed  to  Washington  and  received  at  Washington  on  the  18th.  On 


ELECTORAL  COMMISSION. 


tlio  23d  ho  received  a  reply  accepting  his  resignation  as  of  the  4th. 
Hence  on  the  day  of  the  election  ho  was  disqualified  from  holding 
this  office ;  and  as  we  decide  very  promptly  that  when  the  number  is 
limited  by  the  Constitution,  it  isonr  duty  to  decide  equally  promptly 
that  the  qualification  is  equally  as  binding  on  us  and  should  be  de 
cided  equally  promptly. 

The  disqualification  of  the  Constitution  does  not  extend  to  the  offi 
cer  alone,  but  it  goes  down  and  pervades  the  whole  country.  The 
voter  who  casts  his  vote  for  a  disqualified  person  does  the  same  as 
though-  he  cast  a  blank  vote,  for  he  is  as  much  bound  by  the  Con 
stitution  as  is  the  officer  who  claims  to  be  elected.  It  pervades  all. 
It  is  the  supremo  fundamental  law  reaching  every  citizen  from  tho 
lowest  to  the  highest,  and  the  disqualilication  made  it  equivalent  to 
the  absolute  not  voting  of  the  party  who  threw  a  vote  for  a  consti 
tutionally  disqualified  man. 

Then,  in  reference  to  the  other  officers,  we  find  that  J.  H.  Burch 
was  a  State  senator  of  tho  State  of  Louisiana.  By  the  provisions  of 
tho  constitution  of  the  State  of  Louisiana  it  is  provided  that  no  per 
son  shall  hold  any  two  offices  under  the  said  State  except  those  of 
justice  of  the  peace  and  notary  public.  Burch  was  a  State  senator, 
we  will  prove,  prior  to  tho  election  and  continues  so  up  to  this  day 
l»y  virtue  of  the  holding  under  which  he  held  before.  Then  the  dis 
qualification  of  the  State  constitution  rendered  the  vote  of  the  citizen 
as  to  this  Burch  tte  same  as  though  it  had  not  been  cast.  He  was 
not  elected,  even  if  ho  had  a  majority  of  the  votes. 

Morris  Marks,  another  elector  in  certificates  Nos.  1  and  3,  was  dis 
trict  attorney  for  the  district  in  which  the  parish  of  Saint  James  is 
prior  to  tho  election  and  has  continued  to  hold  down  to  this  day.  He 
is  disqualified  by  the  State  constitution.  We  will  also  show  that 
Oscar  Joffrion  was  supervisor  of  registration  for  Pointe  Coupe~e  parish. 
He  H  disqualified  by  the  constitution  of  the  State,  article  117,  and  he 
is  also  disqualified  by  express  enactment  because  in  tho  registration 
law,  section  13,  you  will  find  that  a  supervisor  of  registration  is  ex 
pressly  disqualified  from  being  a  candidate  for  any  office  being  voted 
1'or  during  the  time  of  his  officiating  as  supervisor  of  registration. 
The  language  is : 

That  no  supervisor  of  re<nstration  appointed  under  this  act,  and  no  clerk  of 
such  supervisor  of  registration,  shall  be  eligible  for  any  office  at  any  election 
when  said  officers  officiate. 

So  that  in  addition  to  the  constitutional  disqualification  there  is 
express  statutory  disqualification  with  reference  to  Jonriou  and  we 
will  prove  that  he  was  acting  and  did  act  clear  through  this  election 
as  supervisor  of  registration  for  the  parish  of  Pointo  Coupe~e.  These 
are  disqualifications  and  wo  will  establish  all  of  them,  by  affirmative 
evidence. 

Then  with  reference  to  actual  fraud  we  have  some  testimony  to 
offer  to  which  I  will  call  your  attention  very  briefly  and  from  mem 
ory.  In  tho  first  instance  we  are  prepared  to  prove  that  prior  to  the 
election  those  who  had  the  conduct  of  the  campaign  on  behalf  of 
the  republican  party  alleged  in  advance  that  no  difference  how  tho 
emotion  went  by  the  people,  the  returning  board  would  make  it  all 
right.  This  was  declared  by  Mr.  Lewis  and  by  Judge  Dibble,  the  act 
ing  attorney-general.  Lewis  is  the  one  who  claims  to  have  been 
elected  to  the  United  States  Senate  by  the  lato  Legislature  by  virtue 
of  tho  action  of  this  returning  board.  Wo  will  show  that  in  addi 
tion  to  this,  prior  to  the  meeting  of  tho  returning  board,  there  was  a 
telegram  sent  by  John  Ray,  who  was  attorney  for  tho  returning  board 
and  went  through  all  of  its  sessions  public  and  private,  in  which  he 
states : 

NEW  ORLEANS,  November  16, 1876. 
Hon.  J.  R.  WEST,  Washington,  D.  O. 

Returns  to  date  leave  us  majority,  throwiug^out  five  parishes. 

JOHN  RAT. 

That  is  dated  on  the  IGthof  November,  before  the  returning  board 
met,  showing  that  the  attorney  that  they  selected  to  discharge  the 
functions  of  their  adviser  stated  in  advance  that  five  parishes  were  to 
be  thrown  out.  Wo  will  corroborate  that  by  predictions  coming  from 
many  sources.  On  the  17th  of  November,  1876,  J.  R.  G.  Pitkin,  United 
States  marshal,  who  used  tho  funds  of  the  Government  with  a  very 
generous  hand  in  reference  to  procuring  witnesses  to  upset  the  right 
iu  that  State,  telegraphed  J.  R.  WEST  as  follows : 

NEW  ORLEANS,  November  17, 187G. 
Hon.  J.  R.  WEST,  Washington,  D,  O.  : 

Louisiana  is  safe.  Our  northern  friends  stand  firmly  by  us.  Tho  returning 
Loard  will  hold  its  own. 

J.  R.  G.  PITKIN. 

Showing  that  there  was  noro  liance  upon  tho  votes  of  the  people, 
but  their  hopes  concentrated  in  tho  returning  board.  Then  on  the  3d 
of  December,  prior  to  tho  time  that  Governor  Wells  swears  he  knew 
anything  about  what  the  results  were,  we  have  the  following  tele 
gram  : 

NEW  ORLEANS,  December  3, 1876. 
lion  J.  R.  WEST,  Washington,  D.  0.:    • 

Democratic  boast  entire  fallacy.  Have  northern  friends  on  way  North.  Answer 
telegram  of  this  morning  ;  also,  have  Senate  anticipate  House  in  sending  committee 
to  investigate  outrages.  Have  seen  Wells,  who  says,  "  Board  will  return  Hayes 
sure.  Have  no  fear." 

J.  R.  G.  PITKIN. 

And  Mr.  Pitkin  swore  before  the  congressional  committee  that 
Wells  did  tell  him  before  he  sent  the  telegram  the  board  would  return 
Hayes  sure,  to  have  no  fear. 


Then  taking  these  predictions  and  taking  their  action,  we  will  add, 
besides  to  many  other  things  that  I  have  not  time  to  recapitulate,  that 
this  board  offered  by  some  of  its  members  to  sell  the  result  in  that 
State  to  two  different  men,  one  for  a  consideration  of  f^OO.OOO,  to 
another  asking  a  million.  The  price  was  changed  in  conformity  to 
tho  probabilities  of  the  purchase.  Then  the  constant  succession  of 
accidents  all  on  one  side  would  be  sufficient  in  itself.  Then  again 
the  attention  of  tho  board  was  called  to  the  fact  that  it  was  their 
duty  to  fill  the  board  to  deliver  themselves  from  suspicion.  Every 
one  felt  and  knew  that  prior  to  this  these  very  men  had  been  found 
guilty  of  doing  dishonest  acts  with  reference  to  elections.  They  wcro 
asked  to  fill  tho  board.  Tho  law  was  laid  before  them  ;  they  admit 
ted  it  was  tho  law,  but  said  it  was  directory.  Assuming  that  they 
were  not  bound  to  obey  a  directory  law  but"  had  a  discretion  to  re 
gard  or  disregard  it  as  they  pleased,  they  interpreted  the  word  "  direct 
ory"  as  discretionary;  they  used  their  discretion  to  exclude  any  per 
son  from  knowing  what  they  did  who  would  have  an  interest  in  con 
tradicting  any  false  assertion  which  they  might  make  or  dishonest 
trick  which  they  might  perform  with  reference  to  the  canvass  of  the 
election. 

Then  their  attention  was  called  to  the  fact  in  reference  to  making 
their  compilations  from  the  statements  of  the  votes.  They  made,  in 
violation  of  law,  their  compilations  from  tho  supervisors  of  registra 
tion,  and  thereby  threw  out  tho  whole  parish  of  Grant  and  excluded 
tho  statements  which  were  not  returned  by  the  supervisors  of  regis 
tration,  by  which  they  made  2,900  of  a  difference  in  their  action  in 
favor  of  their  own  party. 

Now,  is  a  great  nation  to  submit  to  all  this  ?  Must  forty-five  mill 
ions  of  people  drink  from  a  foul  sink  the  ordure  that  flows  through 
such  a  fetid  sewer  ?  It  is  not  right.  Truth  should  be  admitted  to 
shine  upon  this.  You  cannot  erect  a  false  god  and  bow  down  to  it 
and  worship  it,  and  be  blameless.  Truth  ought  to  be  permitted  to 
shine  upon  this  transaction  ;  and  if  truth  shine  upon  it,  but  one  sin 
gle  result  cau  possibly  be  attained.  The  wisest  of  men  or  the  strong 
est  of  men  cannot  make  that  which  is  false  true.  Solomon,  the 
wisest  of  men,  set  up  the  false  god  Moloch,  and  in  the  glowing  arms 
of  the  monster  children  wailing  died ;  but  his  wisdom,  his  power, 
and  his  glory  have  not  been  able  to  efface  tho  stain  or  to  prevent 
posterity  over  since  from  regarding  it  as  pollution  on  his  name  and 
his  character.  If  you  set  up  the  false  for  the  true,  if  you  attempt 
to  blind  the  eyes  of  a  mighty  nation,  and  to  say  the  Senate  of  the 
United  States  and  the  House  of  Representatives  of  the  United  States 
shall  put  upon  their  journals  as  a  perpetual  memorial  to  all  genera 
tions  that  which  they  know  to  be  false,  and  command  all  to  bow 
down  and  worship  it,  your  edict  will  be  vain  ;  because  history  will 
judge  and  will  know  the  truth.  We  ask  now  that  the  simple  truth, 
the  great  moral  light  of  tho  universe,  may  be  permitted  to  shine 
upon  this  transaction,  to  clear  out  all  this  pollution,  and  to  let  onr 
country  be  free  from  the  disgrace  of  being  poisoned  by  the  act  of  this 
vile  returning  board. 

Mr.  Representative  HURLBUT.  Mr.  President  and  gentlemen  of 
the  Commission,  I  wish  my  mind  could  be  relieved  of  the  difference 
of  opinion  expressed  by  tho  several  members  who  objected  in  advance 
of  me,  and  that  the  important  question  could  be  determined  either 
as  claimed  by  Senator  McDonald,  that  this  is  a  judicial  tribunal,  or 
as  claimed  by  Mr.  Jenks,  of  tho  House,  that  it  is  a  legislative  tri 
bunal.  If  indeed  there  be  any  claim  of  special  and  peculiar  juris 
diction  belonging  to  this  Commission,  it  conies  under  the  act  of  Con 
gress.  Tho  judicial  power  is  limited  by  the  Constitution,  and  you 
certainly  possess  not  that.  Tho  legislative  power  is  equally  limited 
by  the  Constitution  to  Congress,  and  you  certainly  possess  not  that. 
1  apprehend  that  the  constitution  of  this  Commission  is  as  a  means, 
as  a  committee,  if  I  may  call  it  so,  appointed  by  the  two  Houses, 
as  a  convenience  to  them,  to  determine  upon  certain  questions  which 
have  arisen  with  regard  to  this  presidential  election,  and  that  this 
committee  or  this  Commission  is  bound  to  pass  upon  these  questions 
in  conformity  to  well-settled  and  regularly  established  law  and  not 
at  all  in  conformity  to  any  vague  suggestions  of  matter  which  is 
dclwrs  the  record,  which  is  not  among  the  things  committed  to  you 
by  the  President  of  tho  Senate,  and  which  already,  if  I  understand  the 
decision  of  this  Commission,  are  barred  by  the  spirit  and  reason  of 
tho  decision  made  in  tho  Florida  case. 

I  am  hero  in  the  discharge  of  the  duty  which  has  been  cast  upon 
me  to  do  two  things  :  first,  to  object  to  the  paper  known  as  No.  1,  the 
McEnery  certificate.  That  may  be  done,  as  I  understand  it,  in  two 
ways  :  first,  by  showing  that  tho  certificate  itself  is  not  good ;  second, 
by  showing  that  McEucry  himself  is  not  governor.  That  is  an  attack 
ing  process  to  tho  certificate  and  to  the  title  of  the  man  who  gives 
it.  The  attack  may  be  made  just  as  well  by  supporting  by  the  law 
and  the  evidence  the  existence  and  legal  effect  of  tho  other  and 
counter-certificate  purporting  to  be  given  by  William  P.  Kellogg  as 
governor,  and  the  establishment  of  the  fact  to  the  satisfaction  of  this 
Commission  and  of  the  world  that  William  P.  Kellogg  was  at  the  time 
that  the  certificate  was  given  the  only  legal  and  recognized  governor 
in  the  State  of  Louisiana.  Fortunately  there  is  an  abundance  of  proof 
upon  that  question.  There  is  no  governor  who  has  held  office  in  these 
United  States  that  is  so  abundantly  bolstered  up  by  proof  of  his  ex 
istence  as  governor,  not  only  strict}  juris  by  the  fact  of  election,  but 
by  the  fact  of  the  declaration  of  that  election  by  the  only  legal  re- 
urning  officers  of  the  State,  by  tho  fact  of  the  counting  of  the  votes 


66 


ELECTORAL   COMMISSION. 


by  the  only  legal  Legislature  of  tho  State,  by  tlio  fact  of  the  entrance 
into  office  under  that  count,  by  the  fact  that  when  in  pursuance  of 
the  system  which  prevails  iu  that  most  wretched  State  the  course  of 
law,  sovereign  r.nd  supreme  as  it  ought  to  be  in  every  republican  gov 
ernment,  was  violently  overthrown,  when  in  1874 rebellion  by  arms  was 
inaugurated  and  civil  war  brought  into  the  streets  of  the  capital  city, 
armed  forces  organized  deliberately. to  overthrow  it,  and  a  skirmish 
which  bore  a  near  approach  to  the  dimensions  of  a  battle  took  place, 
the  avowed  object  being  to  overthrow  the  existing  government,  and 
to  substitute  the  other  one,  of  which  this  man  McEnery  was  the 
figure-head.  That  succeeded.  What  then  ?  Then  the  intervention 
of  the  United  States  was  asked  under  tho  Constitution.  The  United 
States  was  asked  to  lend  her  strong  arm  to  sustain  the  right.  Which 
was  the  government  to  bo  sustained  there  in  tho  case  of  these  two 
contacting  governments  was  by  the  act  of  1795  delegated  by  Congress 
to  the  President  of  tho  United  States,  and  that  delegation  gives  until 
his  decision  is  overthrown  by  both  branches  of  Congress  absolute 
validity  to  his  recognition  on  the  part  of  this  Government  in  deter 
mining  which  was  the  rightful  government  of  the  State.  The  Presi 
dent  of  the  United  States  so  recognized  it.  The  President  of  the 
United  States  did  more  ;  he  used  the  military  arm  of  the  country,  put 
down  the  rebellion  by  force  of  arms,  by  conquest,  and  placed  Kellogg 
back  again  iu  the  seat  from  which  he  had  been  deposed. 

This  is  not  the  end  of  tho  record.  I  allude  to  these  facts  without 
giving  the  dates,  which  I  will  do  hereafter  for  the  consideration  of 
the  tribunal.  It  does  not  end  here.  The  question  comes  up  as  to 
the  propriety  of  the  President's  action  iu  the  Senate  of  the  United 
States.  The  Senate  of  the  United  States  adopted  eventually  a  reso 
lution  offered  by  Mr.  Anthony  in  terms  as  follows;  I  quote  from  the 
Senate  Journal  of  1874-'?5,  page  475 : 

Resolved,  That  llio  action  of  the  President  in  protecting  the  government  in  Lou 
isiana,  of  which  \V.  P.  Kellogg  is  the  executive,  and  the  people  of  that  State 
against  domestic  violence  and  in  enforcing  the  laws  of  tho  TJuited  States  in  that 
Stiite,  is  approved. 

There  is  the  senatorial  recognition  of  tho  determination  made  by 
the  President  of  the  United  States  under  tho  power  delegated  to  him 
in  the  law  of  1795,  and  the  approval  of  his  action  and  tho  committal 
of  one  branch  at  all  events  of  Congress  to  the  validity  of  Kellogg's 
tenure  of  office. 

But  in  reading  through  that  record  I  find  a  still  more  pointed  action 
of  the  Senate,  because  the  negativing  of  a  proposition  sometimes, 
which  is  antagonistic  to  the  main  proposition,  adds  peculiar  vigor 
and  force  to  tho  proposition  itself.  I  find  that  resolution  being  pend 
ing  Senator  TIIURMAN  offered  an  amendment  which  appears  on  page 
473  of  the  Journal,  that  nothing  in  that  resolution  should  be  consid 
ered  as  recognizing  Kellogg  as  de  jure  governor  of  Louisiana;  and 
that  amendment  was  rejected  by  the  vote  of  the  Senate. 

The  House  also  has  taken  some  action  on  this  matter.  Tho  com 
mittee  of  the  House  known  as  the  Louisiana  Committee,  which  has 
been  referred  to  by  Mr.  Jenks  in  his  argument,  reported  certain  res 
olutions,  and  in  tue  Journal  of  the  House  of  Representatives,  page 
60:5,  of  the  session  of  1874-'7f>,  this  resolution  appears: 

Revolved,  That  William  Pitt  Kollogg  bo  recosnized  as  the  Governor  of  the  State 
of  Louisiana  until  tho  end  of  the  teiia  of  olh'ce  lixed  by  the  constitution  of  that 
State. 

That  resolution  was  adopted  by  a  vote  of  105  to  89.  The  same 
committee  of  which  Mr.  Hoar  and  Mr.  Wheeler  were  members  were 
anxious,  as  all  true  men  ought  to  be,  to  put  an  end  to  the  bad  state 
of  things  which  confessedly  prevailed  there  in  Louisiana,  and  to  that 
end  they  undertook  at  the  request  of  these  parties— John  McEnery, 
this  contesting  governor,  being  one— to  make  an  award  which  was  to 
be  carried  out  by  certain  changes  by  resignation  on  the  one  side  and 
putting  men  into  office  on  the  other  in  tho  Legislature  of  that  State; 
in  other  words  they  undertook  to  do  equity,  and  that  award  was  made 
by  them,  and  in  pursuance  of  that  award  the  Legislature  of  Louisi 
ana  passed  a  resolution  by  which— I  am  quoting  from  memory  —  they 
agreed  that  the  tenure  of  office  of  William  Pitt  Kellogg  during  the 
terms  for  which  he  had  been  elected,  and  until  his  successor  should 
be  appointed,  should  not  in  any  way  be  interfered  with  by  that  Legis 
lature  of  the  State  of  Louisiana  in  consideration  of  this 'award. 

Now  I  will  come  back,  first,  to  the  question  of  his  election.  In  1872 
the  contest  was  between  John  McEnery  and  William  P.  Kelloo-cr  for 
governor  of  the  Slate  of  Louisiana.  Governor  Warmoth,  who  under 
took  to  manipulate  more  things  than  he  could  carry,  endeavored  to 
complicate  tho  matter  by  breaking  up  tho  legal  board  of  returnim* 
officers  which  existed  under  the  act  of  1870  and  create  a  board  crea£ 
11  res  of  his  own,  so  that  in  fact,  at  that  election  of  187:2  there  were 
two  conflicting  boards  of  returning  officers  of  election  of  theState  of 
Louisiana;  one  of  them  known  as  tho  Lynch  board  and  tho  other  as 
the  Fortnau  board.  The  supreme  court  of  the  State  of  Louisiana  has 
settled  all  that  question.  The  supreme  court  of  the  State  of  Louisiana, 
in  25  Louisiana  Annual  Reports,  in  the  case  of  tho  State  rare/,  vs 
Wharton  el.  «/,,  rendered  this  decision  ;  I  read  from  page  14 : 

It  is  therefore ,  ordered  and  adjudged  that  the  board  of  retarainjl  officers,  com 
posed  of  JL.  C.  Wnnoth,  I'.J.Uorron,  John  Lynch,  James  Longstroe.l  ui-d.Iacdi) 
JIftWkina  was  tho  legal  board  of  returning  officers  of  elections  of  tho  Sta-io  of 
-LjOuisiuiiji. 

And  that  was  tho  board  by  whoso  certificate  of  election  Kelloo-.r 
derived  his  title.  Now,  if  it  be  true  that  William  P.  KeHo™  was 
governor  of  the  State  of  Louisiana  on  the  6th  day  of  December  187G 


it  is  manifestly  true  that  John  McEnery  was  not;  and  whatever  vir 
tue  or  value  iu  the  way  of  evidence  this  Commission  may  attach  to  the 
certificate  of  a  governor  must  bo  given  to  the  governor  who  by  elec 
tion,  recognition,  and  all  other  steps  known  to  tho  law,  was  at  the 
time  the  actual  governor,  and  not  to  a  mere  pretender  who  retired  from 
that  contest  of  his  own  will  in  1874  and  has  not  in  any  way  under 
taken  to  assert  or  exercise  any  possible  control  over  the  office  of  gov 
ernor  of  that  State  from  that  day  to  this. 

Again  I  call  the  attention  of  the  Commission  to  the  peculiar  word 
ing  of  the  certificate  given  by  John  McEnery.  Ho  was  careful,  as  far 
as  he  could,  not  to  commit  himself  to  a  statement  of  any  essential 
fact  appearing  by  evidence  : 

This  is  to  certify  that  tho  following  is  a  true  and  correct  list  of  the  names  of  the 
electors  of  tho  President  and  Vice-President  of  the  United  States  for  tho  next  en 
suing  regular  term  of  tho  respective  offices  thereof,  being  electors  duly  and  legally 
appointed  by  and  for  the  State  of  Louisiana,  having  each  received  a  majority  of  the 
votes  cast  for  electors  at  the  election  in  the  State  of  Louisiana,  held  iii  accordance 
with  law;  this  certificate  being  furnished  aa  directed  by  law,  by  the  executive  au 
thority  of  said  State  of  Louisiana. 

There  is  no  reference  there  to  any  source  known  to  the  laws  from 
which  he  derives  his  information  ;  there  is  no  reference  there  to  any 
returns  appearing  on  file  in  his  office,  because  he  had  no  office;  he 
had  no  returns  ;  he  had  no  secretary  of  state  ;  he  had  no  man  in  all 
Louisiana  who  would  come  forward  and  verify  the  seal  of  the  State 
and  tho  signature  of  the  governor  by  signing'"  by  the  governor,  so 
and  so,  secretary  of  state." 

This  brings  me  to  consider,  in  the  line  of  argument  which  I  have 
marked  out  for  myself,  what  are  the  evidences  that  ordinarily  in  the 
regular  courts  of  law  iu  all  cases  of  election  come  up  before  a  can 
vassing  or  determining  tribunal.  Docs  any  one  contend  fora  mo 
ment  that  this  Commission  has  the  power,  the  authority,  or  the  means 
or  time  to  purge  the  election  in  Louisiana,  to  pass  through  the  whole 
system  as  it  was  displayed  there  on  the  7th  day  of  November  to  ex 
amine  into  every  poll  or  even  to  read  that  mass  of  balderdash  under 
the  name  of  evidence  that  is  .-ent  up  here  and  half  yet  imprinted? 
Is  it  not  true  that  this  Commission  is  exercising  to  a  certain  extent 
a  political  and  not  a  judicial  power,  that  you  are  exercising  il.  as  all 
determining  bodies  pass  upon  elections,  not  upon  the  very  facts  that 
may  have  taken  place  away  down  to  tho  remotest  poll  in  the  differ 
ent  parishes,  but  upon  the  regular  returns  of  the  officers  constituted 
for  that  purpose  and  sent  forward  to  you?  In  other  words,  I  draw 
very  clearly  iu  my  own  mind  this  distinction— the  distinction  be 
tween  the  power  of  apolitical  tribunal  todetermiueau  election  upon  the 
apparent  right,  the prima  facie  right,  as  it  appears  upon  the  papers  that 
are  sent  up  to  you,  and  the  right  of  a  judicial  tribunal  when  two  par 
ties  are  properly  before  it,  one  claiming  to  have  been  veritably  elected 
and  that  the  other  has  not  been.  In  that  case  no  man  denies'that  the 
judicial  tribunal,  if  clothed  by  law  with  that  power,  can  pass  behind, 
the  returns  and  papers  and  inquire  into  the  veritable  fact  of  the  case 
and  determine  according  to  the  very  right.  Now,  I  do  not  believe  that 
either  by  any  fair  construction  rf  the  law  or  by  any  proper  construc 
tion  of  tho  powers  of  tho  two  Houses  as  given  by  the  Constitution 
there  exists  either  in  the  two  Houses  or  in  this  tribunal  the  power  of 
examining  iuto  the  very  right  as  if  you  were  a  court  sitting  to-day 
to  try  tho  case  of  a  quo  ivarranto  brought  by  one  candidate  for  the 
President  against  another  in  occupation,  if  such  a  proceeding  be 
known  to  tho  laws,  on  which  I  confess  I  do  not  propose  to  give  any 
opinion. 

It  was  stated,  and  stated  correctly,  by  the  distinguished  counsel 
who  argued  another  cause  before  your  tribunal,  [Mr.  Matthews,] 
that  an  election  necessarily  consists  of  certain  steps  moving  forward. 
It  does  so  everywhere ;  iu  all  States,  in  all  governments  wiiere  elec 
tions  are  and  where  they  involve  anything  larger  than  the  single 
political  unit ;  and,  if  the  Commission  will  excuse  me,  I  will  endeavor 
to  show  the  distinction  that  exists  under  the  laws  of  Louisiana  in 
their  mode  of  scrutinizing  their  elections  and  of  handling  elections 
from  what  exists,  so  far  as  I  know,  in  any  other  State  in  the  Uuiou, 
and  the  reasons  tor  it. 

Where  you  have  a  community  in  which  general  education  is  diffused, 
in  which  there  is  a  general  desire  to  maintain  fair  dealing  and  support 
of  law,  as  prevails  fortunately  in  most  of  the  States  of  this  Uiron, 
but  not  in  Louisiana,  then  the  election  processes  begin  from  the  bot 
tom  ;  they  commence  in  the  unit,  tho  lowest  possible  subdivision  of 
political  power;  the  people  themselves  are  trusted,  are  fit  to  be 
trusted,  and  ought  to  be  trusted  with  the  power  of  determining  iu 
those  little  local  communities,  under  the  inspection  of  1  heir  neigh 
bors,  who  shall  be  judge  of  their  elections.  And  so  you  have  and  can 
have  judges  of  election,  and  from  that  base  the  election  processes  go 
up  by  returns  from  township  to  county,  from  county  to  district,  from 
district  to  the  State  canvassing  board  ;  and  in  every  one  of  those  proc 
esses  the  subordinate  "election  tribunals,  every  one  of  them,  have  and 
exercise  tho  power  properly  meant  by  the  power  of  making  returna. 
T^ey  are  returning  officers  ;  and  as  a  rule  in  the  States  with  which 
I  am  most  acquainted  the  State  board  of  canvassers  has  no  duty  to 
perform  excepting  a  ministerial  one.  All  questions  of  eligibility  of 
voters,  of  their  right  to  vote,  and  all  those  matters  are  ju  such  com 
munities  safely  intrusted  to  the  local  tribunals.  But  in  Louisiana 
tho  case  is  altogether  different,  and  it  is  different  because  of  the  dif 
ference  of  the  population,  the  difference  of  the  character  of  the  peo 
ple.  The  laws  which  they  have  there  are  as  good  laws  as  the  people 


ELECTORAL  COMMISSION. 


67 


•will  permit  themselves  to  have.  All  laws  reflect  the  condition  of 
society.  Thus  in  Louisiana,  the  election  processes  instead  of  begin 
ning  from  the  bottom  and  coming  up,  begin  from  the  top.  There  is 
not  in  that  community  that  diffused  education— and  I  am  saying 
these  things  with  no  uukindness  to  that  community,  but  as  a  matter 
of  fact — there  is  not  that  diffused  education,  above  all  things  there 
is  not  that  reverence  for  law  which  permits  trusting  local  neighbor 
hoods  with  this  power.  And  so  in  recognition  of  that  fact,  in  recog 
nition  of  the  fact  that  by  the  processes  of  reconstruction  a  vast  body 
of  uneducated  men  had  been  suddenly  elevated  to  the  position  of 
citizenship  and  of  eligibility  to  office,  in  recognition  of  the  fact  that 
from  the  beginning  in  that  most  unfortunate  State  there  has  been 
armed,  deliberate  resistance  to  the  law,  there  has  been  deliberate, 
settled,  persistent  resolution  to  crush  out  by  violence  and  force  all 
those  things,  no  matter  what  they  were,  which  stood  in  the  way 
of  the  party  that  sought  to  make  itself  dominant  by  force  when  it 
was  not  dominant  by  numbers ;  and  thus  the  Legislature  commenced 
in  1866  by  first  creating  a  sort  of  returning  board,  consisting  of  the 
governor  and  certain  officers,  but  using  a  judge  for  the  purpose  of  de 
termining  these  facts  of  intimidation. 

This  Commission  is  acquainted  with  the  histoiy  of  this  country, 
and  even  of  that  remote  part  of  it.  It  knows  as  part  of  the  current 
history  of  the  country  that  that  change  in  the  system  of  election  laws 
in  the  State  of  Louisiana  was  brought  about  by  the  murders,  the  as 
saults,  the  violent  breaking  into  the  regular  course  of  law  which 
swept  that  State  in  1863  and  compelled  the  Legislature  which  sat  in 
in  1868  to  undertake  to  devise  some  remedy.  That  was  one  of  the 
remedies  they  devised. 

But  that  did  not  answer ;  and  so  in  1870  the  Legislature  of  the 
State  went  a  step  further  and  they  took  all  the  power  of  making  re 
turns  in  any  sense  of  the  word  from  all  these  local  and  subordinate 
ministers  of  election,  and  they  did  not  allow  them  even  to  say  in  a 
ward  district  whether  a  police  justice  or  a  constable  had  been  elected, 
the  lowest  form  of  subdivision  in  that  State  being  these  precincts  or 
polls  in  parishes.  They  took  all  that  away,  and  took  away  any  power 
on  the  part  of  the  commissioners  of  election  even  to  pass  upon  the 
right  of  a  voter  to  vote.  They  gave  by  that  law  to  the  supervisor  of 
registration  controlling  power  to  determine  whether  or  not  a  man  was 
a  legal  voter  in  a  parish,  and  his  determination  once  made  bound 
every  officer  of  the  election.  There  was  positively  nothing  left  to 
these  local  commissioners  of  election  except  to  examine  and  detcrmi  ne 
whether  the  man  who  offered  his  vote  was  the  identical  man  registered 
by  the  supervisor  of  registration.  That  was  all.  So  their  office  be 
came  simply  ministerial  and  clerical.  Their  returns  were  no  longer 
dignitied  by  the  name  of  "  returns,"  but  dropped  down  in  the  law  to 
what  they  ought  to  be,  "  statements  of  votes."  These  statements  of 
votes  passed  up  to  the  supervisor  who  is  also — Mr.  Jenks  has  stated 
it  correctly  in  that  particular — deprived  of  any  judicial  power  what 
soever,  lie  is  simply  a  compiler  of  the  statements,  and  is  bound  by 
the  law  to  send  forward  his  compilation  and  all  the  original  papers 
he  receives — he  passes  no  judgment  on  them — to  the  returning  board 
of  elections  for  theState  of  Louisiana ;  and  the  entire  power  and  faculty 
allover  the  State  of  giving  any  declaration  whatsoever  which  should 
amount  to  prima  facie  evidence  on  which  the  governor  could  commis 
sion,  is  solely  and  exclusively  vested  in  this  State  board  of  returning 
officers.  All  this  appears  from  the  very  terms  of  the  law  itself,  and 
if  it  were  worth  while  I  could  read  the  decision  of  the  supreme  court 
of  that  State  which  sustains,  as  it  could  not  help  sustaining,  the 
plain,  emphatic,  and  undeniable  words  of  the  law. 

Having  constituted  them  judges,  not  of  all  State  elections — that  is 
not  what  they  say,  but  they  make  them  the  final  judges  and  only  tri 
bunal  which  has  the  right  to  give  a  prima  facie  certificate  of  election 
for  all  elections  held  in  the  State — the  question  gravely  resolves  itself 
back  to  this  :  whether  the  presidential  election  of  1876,  in  which  cer 
tain  persons  were  chosen  as  electors,  was  an  election  held  within  the 
State  of  Louisiana.  If  it  was  these  men  had  jurisdiction.  I  shall  not 
have  time  to  follow  all  the  points  that  have  been  made.  I  shall  leave 
that  to  be  done  far  more  ably  and  better  by  the  counsel.  Permit  me, 
however,  to  follow  this  one. 

There  is  another  consideration.  The  point  having  been  raised,  as 
I  understand,  by  the  objectors  on  the  other  side  that  as  a  matter  of 
fact  there  exists  no  law  to-day  by  which  the  right  of  appointing  elect 
ors  in  Louisiana  was  delegated  to  the  people,  that  is  a  question  to  be 
determined  on  the  inspection  of  the  laws  themselves,  and  I  will  simply 
read  from  the  list  of  all  the  laws  on  this  point,  section  29  of  the  act 
of  1872,  though  I  believe  it  has  been  read  before  : 

lie  it  further  enacted,  That  in  every  year  in  which  an  election  shall  bo  held  for 
electors  of  President  and  Vice-President  of  the  United  States,  such  election  shall 
be  held  at  the  time  fixed  by  act  of  Congresa. 

The  presidential  election — that  is,  the  election  of  electors  by  the 
people — stands  in  Louisiana  upon  two  statutes;  not  one,  but  two. 
There  is  one  statute  in  the  revised  code — I  do  not  know  where  it  is 
printed  in  this  compilation — which  is  on  the  question  of  elections; 
it  makes  the  provision  : 

SEC.  141').  That  in  every  year  in  which  an  election  ia  to  be  held  for  electors  of 
President  and  Vice- President  of  tho  United  States  such  election  shall  be  held  on 
the.  Tuesday  next  after  the  Jiist  Monday  in  the  month  of  November;  and  such 
election  shall  be  held  and  conducted  in  the  name  manner  and  form  provided  bylaw 
for  general  and  State  elections. 


That  is  the  general-election  law  under  the  revised  statutes.  ' 

Mr.  Commissioner  ABBOTT.  Is  that  section  put  in  in  any  of  these 
compilations  that  we  have  ? 

Mr.  Representative  HURLRUT.  I  have  not  been  able  until  a  few 
minutes  since  to  obtain  a  copy  of  the  compilation  and  cannot  say. 

Mr.  Representative  HOAR.  It  is  on  the  ninety-fourth  and  ninety- 
fifth  pages  of  the  pamphlet  with  the  paper  cover. 

Mr.  Representative  HURLBUT.  Now  there  is  another  law  that  is 
in  the  revised  statutes  under  the  title  of  "Presidential  electors"  on 
page  551 ;  it  is  section  2323.  It  is  simply  a  repetition  of  section  1410 ; 
and  section  2824  proceeds  to  direct  the  manner  in  which  they  shall 
vote,  and  section  2826  and  2827  and  others  relate  to  a  special  mode 
of  return  provided  by  that  revision. 

Mr.  Commissioner  BRADLEY.  What  is  the  date  of  that  book  on 
the  title-page  ? 

Mr.  Representative  HURLBUT.  This  volume  is  the  Revised  Stat 
utes  of  Louisiana  of  1870  that  I  am  quoting  from. 

I  apprehend  that  in  considering  the  effect  of  statutes  that  are 
claimed  to  repeal  the  one  or  the  other,  the  first  question  is  what  the 
probable  intent  and  meaning  of  the  Legislature  was.  No  man  pre 
tends  that  it  was  the  probable  intent  and  meaning  of  the  Legislature 
of  Louisiana  at  any  time,  that  it  was  their  purpose,  to  repeal  the 
right  of  the  people  to  cast  their  votes  for  electors  of  President  and 
Vice-Presideut.  Why  ?  Because  it  is  inconsistent  with  the  actual 
state  of  things  that  has  prevailed  since  that  time,  for  there  has  been 
a  presidential  election  held  since  that  held  in  1872,  and  held  by  this 
same  process  of  voting  by  the  people.  There  has  been  a  presidential 
election  held  in  Id76,  and  that  was  held  in  the  same  manner  and  by 
the  same  process  of  ascertaining  the  choice  of  the  people  in  this  mat 
ter  of  the  appointment  of  electors.  So  the  construction  to  be  derived 
by  the  usage  of  the  Government  itself  is  against  the  theory  of  repeal. 

Besides,  there  comes  in  another  gr,eat  principle  of  interpretation, 
that  subsequent  laws  repeal  only  so  much  of  the  preceding  law  as  is 
inconsistent  with  the  one  to  be  enacted  ;  and  hence  it  has  been  held 
in  practice  in  Louisiana,  and  undoubtedly  is  (he  clear  law  of  the  case, 
that  the  repealing  act  of  1872  creating  this  returning  board  only  in 
terfered  with  the  act  in  regard  to  presidential  electors  so  far  as  to  do 
away  with  the  special  tribunal  provided  under  the  former  act,  and  to 
submit  that  election  as  all  other  elections  held  in  the  State  to  the  ar 
bitrament  and  determination  of  this  board  of  returning  officers. 

NOWT,  I  may  perhaps  be  pardoned  in  saying  that  whatever  may  be 
the  amplitude  of  the  power  committed  by  these  statutes  under  the 
will  of  the  people  of  Louisiana  to  this  board  of  returning  officers, 
whatever  may  be  the  peril  (and  I  can  see  it)  of  giving  so  large  a  ju 
risdiction  to  any  board,  the  thing  which  was  behind  it,  the  cause  of 
the  enactment,  is  infinitely  wrorse  and  deserves  the  condemnation  of 
every  man  who  loves  his  country  or  believes  in  the  right  of  the  down 
trodden  and  the  oppressed  ;  for  I  say  here  from  some  knowledge  of 
the  fact  and  close  investigation,  that  the  history  of  Louisiana  since 
reconstruction  has  been  nothing  more  nor  less  than  a  series  of  delib 
erate  attempts  to  overthrow  existing  law  by  force.  The  old  Anglo- 
Saxon  method  by  which  existing  evils  are  corrected  in  the  form  of 
law  never  seems  to  have  entered  into  the  imagination  of  that  hot 
headed,  rash,  and  impetuous  people.  They  have  adopted  rather  the 
Latin  form  that  their  neighborhood  to  Mexico  brings  about,  sending 
pronunciamientos  of  revolution  followed  up  by  confiscation  and  forced 
loans  on  the  commerce  and  interests  of  the  country  to  support  an  ille 
gal  and  irregular  armed  force  in  breaking  down  that  which  the  Con 
stitution  and  the  laws  have  given  to  the  people  of  that  State;  and 
therefore  the  board,  with  all  its  powers,  came  into  existence. 

The  mode  in  which  that  board  may  have  discharged  its  duties,  the 
detail,  if  you  please,  of  the  various  steps  which  it  took  to  acquaint  it 
self  with  the  condition  of  the  various  parishes,  all  these  things  are 
evidence  aliuiide,  outside ;  and  the  simple  and  direct  proposition  is 
made  by  the  objectors  upon  the  other  side  that  this  Commission  shall 
resolve  itself  into  a  tribunal  to  try  tho  question  of  who  did  vote  and 
who  did  not  vote  yonder  at  ever)'  poll  in  Louisiana.  You  cauuot  rest 
upon  ex  parle  testimony  taken  by  a  congressional  commission;  for 
although  1  have  the  honor  to  be  a  member  of  one  branch  of  Congress 
niy  experience  is  that,  of  all  tribunals  or  pretended  tribunals  that 
ever  were  gotten  np  by  the  ingenuity  of  man  for  the  purpose  of  in 
quiring  into  political  questions*,  there  is  not  any  so  likely  to  be  unfair 
and  to  do  injustice  as  a  congressional  committee.  It  is  necessarily  so. 
Look  at  the  time.  Does  this  Commission  expect  to  read  several  thou 
sand  pages  of  the  results  of  the  so-called  investigation  held  by  tho 
committee  of  which  I  have  the  honor  to  bo  a  member  down  in  Louisi 
ana  f  There  are  only  four  thousand  printed  ;  the  other  thiee  thou 
sand  will  be  printed  when  your  printer  gets  money  enough.  You  cau- 
not  read  intelligently  the  mass  that  is  there  within  the  time  that  lies 
between  now  and  the  4th  of  March.  You  cannot  take  tho  synopsis  of 
any  gentleman  as  the  existing  fact  in  the  case ;  you  have  no  right  to 
do  so.  If  you  undertake  to  try  you  must  try  by  law  and  as  the  law 
prescribes.  You,  this  tribunal,  at  all  events  it  is  to  be  trusted  and 
believed,  will  not  suffer  itself  to  be  the  mere  vehicle  of  wholesale  and 
continuous  slander  agaiust  men,  and  giving  them  no  opportunity  for 
rebutta!  or  explanation. 

So  much  for  the  idea  of  opening  up  this  entire  matter,  passing  into 
the  reasons  which  guided  the  returning  board,  passing  behind  their 
judgment  as  given  and  recorded  under  the  forms  of  law  in  pursuance 


ELECTORAL  COMMISSION. 


of  the  constitution  of  their  State  and  the  power  granted  to  them  by 
this  Legislature.  You  are  asked  to  pass  behind  all  that  and  inquire. 
Well.it'  you  undertake  to  do  that,  you  will  do  what  the  supreme 
court  of  the  State  of  Louisiana  has  declined  to  do  ;  for  the  supreme 
court  of  that  State  has  decided — I  read  from  the  case  of  Colliii  vs. 
Knoblock,  25  Louisiana  Annual  Reports,  page  2G5  : 
The  returns  made  by  a  legal  Stato  board  and  officially  promulgated — 

Mr.  Commissioner  HOAR.    When  was  that  decision  given? 
Mr.  Representative  HURLBUT.    In  March,  187:3. 

To  determine  the  validity  of  a  commission  they  cannot,  under  this  act,  go  be 
yond  the  returns  and  report  of  thu  legal  returning  officers  for  all  the  elections  of 
the  State.  The  returns  made  by  a  legal  State  board  and  officially  promulgated  by 
that  board  as  the  general  returning  officers  for  the  State  at  largo  constitute  the 


the  right  of  any  person  named  therein  to  hold  and  exercise  the  office  to  which  he 
shall  by  such  return  be  declared  elected." 

Mr.  Commissioner  EDMUNDS.  What  was  the  nature  of  that  ac 
tion  ? 

Mr.  Representative  HURLBUT.  An  action  under  their  statute  for 
intrusion  into  office. 

Mr.  Commissioner  ABBOTT.  Was  it  not  therefore  in  the  nature  of 
a  quo  warrantot 

Mr.  Representative  HURLBUT.  It  is  a  modified  form  of  quo  ivar- 
ranto. 

Mr.  Commissioner  ABBOTT.    Who  gave  the  opinion  there  ? 

Mr.  Representative  HURLBUT.  The  opinion  was  given  by  Judge 
Taliaferro.  The  same  opinion  is  repeated  in  other  cases  which  I  do 
not  desire  now  to  take  up  the  time  of  the  Commission  iu  quoting,  as 
a  reference  to  them  will  be  printed. 

Mr.  Commissioner  STRONG.  Has  that  case  reference  to  an  election 
conducted  under  the  act  of  1870  or  under  the  act  of  1872? 

Mr.  Representative  HURLBUT.  This  is  a  case  in  which  they  de 
cide,  as  of  course  they  had  to  do,  that  the  election  of  November,  1872, 
was  governed  by  the  law  of  1870,  a  proposition  which  seems  so  self- 
evident  that  I  hardly  thought  it  would  require  the  decision  of  a  court, 
inasmuch  as  an  act  approved  fourteen  days  after  an  election  takes  place 
could  not,  I  think,  anywhere  outside  of  Louisiana  be  claimed  to  have 
anything  to  do  with  the  election  that  took  place  fourteen  days  before. 

Thus  the  supreme  court  of  the  State  itself,  as  regards  its  own  local 
election,  has  decided  that  the  returns  made  by  this  board  and  required 
by  the  law  to  bo  tiled  with  the  secretary  of  state,  and  also  required 
to  be  promulgated  by  publication  in  the  newspapers,  are  the  evi 
dence  on  which  the  governor  gives  commissions  to  all  officers  of  the 
State,  and  that  those  returns  and  declarations  are  prima  facie  evi 
dence  which  can  only  be  gone  behind  in  a  judicial  trial  touching  the 
right  to  hold  and  enjoy  office.  I  apprehend  that  the  case  here  is  some 
what  analogous  to  that.  I  apprehend  that  this  Commission  is  not 
sitting,  nor  can  it  sit,  as  a  judicial  tribunal,  to  try  which  of  the  two 
gentlemen  named  for  President  has  actually  been  elected,  which  is 
entitled  to  hold  and  enjoy  the  office.  You  are  not  sitting  as  a  judi 
cial  tribunal  for  that;  you  arfc  sitting  to  determine  what,  on  the  reg 
ular  mode  of  authorization  established  by  each  State  according  to  its 
own  act  and  pleasure  under  a  delegated  right  in  the  Constitution, 
appears.  Is  there  any  end  to  the  inquiry  if  the  other  view  be  taken? 
Is  there  any  possibility  of  ever  deciding' this  question  of  the  presiden 
tial  election  that  occurred  last  fall  ?  Is  it  not  manifestly  not  only 
contrary  to  law,  but  impossible  in  fact,  that  this  immense  mass  o'f 
allegations  pro  and  con  can  be  gone  into  f  Where  are  you  to  stop  ? 

My  friend,  Mr.  Jeuks,  I  recollect,  was  very  poignant  in  his  remarks 
about  an  innocent  x>ersou  of  the  name  of  Clover,  who  acted  as  super 
visor  of  the  parish  of  East  Baton  Rouge  ;  and,  in.  order  to  show  that 
Mr.  Tildon  got  the  votes  of  Louisiana,  he  proposed  to  this  Commis 
sion,  as  a  matter  of  proof,  that  this  man  once  kept  a  snake-show,  or 
•was  a  roper-in  for  a  snake-show,  as  he  called  him.  Will  the  Com 
mission  inform  me  whether  that  is  a  traversable  fact  that  we  can 
take  issue  with?  If  so,  every  other  allegation  connected  with  this 
matter,  all  these  points  that  are  made,  some  under  the  law,  some 
under  a  misconception  of  the  law,  all  of  these  require  evidence  ;  they 
are  to  be  sustained  by  testimony  pro  and  con,  and  I  confess  that  oil 
deliberate  study  of  the  law  which  organized  this  Commission  I  do 
not  know  any  means  that  this  Commission  has  of  testimony  on  these 
questions,  or  to  compel  its  production,  or  to  judge  of  its  validity. 

Now,  all  this  is  simply  a  repetition— and  I  am  glad  of  it— on  a  mod 
ified  and  far  more  respectable  scale  before  this  tribunal,  of  the  utter 
ances  with  which  we  have  been  favored  for  the  last  four  weeks  iu  di 
rect  prejudgment  of  the  whole  question  that  is  submitted  to  this  tri 
bunal  ;  and  I  deeply  regret  that  the  echo  of  those  utterances,  bad 
enough  and  ill  enough  even  in  the  license  of  debate  in  deliberative 
bodies,  should  come  within  this  hall  whose  memories  are  all  saucti- 
iied  by  adherence  to  great  principles  of  justice,  and  most  of  all  I  re 
gret  that  the  speech  of  my  distinguished  friend  from  Pennsylvania 
[Mr.  Jenks]  should  have  closed  with  a  style  of  warning  to  this  Com 
mission  that  amounted  to  an  implied  menace.  That  sort  of  thing  may 
do  yonder  iu  Louisiana,  where  the  physical  force  and  organized  devil 
try  of  a  whole  race  are  on  the  one  side,  and  God  and  the  law  and  a  clear 
majority  of  humble  American  citizens  are  on  the  other ;  but  it  is 
infinitely  bad  taste  that  here,  catching  his  inspiration  from  his  clients, 
he  should  venture  to  attempt  to  bull-doze  this  Commission.  I  pray 


you,  gentlemen,  to  do  simply  what  I  know  you  will  do,  and  that  you 
need  no  prayers  from  me  to  do,  pass  upon  this  question,  not  in  obedi 
ence  to  any  popular  clamor  got  up  by  self-interest  and  repeated  time 
after  time  by  a  ribald  press,  but  determine  this  question  on  your  oaths 
according  to  the  tenor  of  the  constitution  and  the  law,  and  the  event 
will  justify  the  confidence  that  all  sound  and  well-judging  men  repose 
in  the  integrity  and  the  stern  purpose  of  duty  of  the  Commission, 
itself. 

Mr.  Senator  HOWE.  Mr.  President  and  gentlemen  of  the  Commis 
sion  :  I  am  somewhat  mortified,  I  confess,  coming  to  the  discharge  of 
the  duty  which  hns  been  assigned  me,  of  saying  something  in  sup 
port  of  "objection  No.  4,  to  find  how  very  small  a  thing  it  is  iu  com 
parison  •U'ith  this  volume  of  objections  wrhich  has  been  urged  on  the 
other  side.  It  is  a  very  small  piece  of  paper  to  put  in  here.  I  feel 
bound  to  say  of  it  as,  I  believe,  Mercutio  said  of  his  sword-cut,  that 
it  really  is  not  as  capacious  as  a  well,  but  I  am  inclined  to  think  it 
will  do  after  all.  We  respectfully  object  that  you  shall  not  count 
the  votes  for  President  and  Vice-president  of  the  United  States  ten 
dered  here  by  John  McEuery  and  Robert  C.  Wickliife  and  by  their 
associates,  any  of  them,  for  this  reason,  to  begin  with :  You  have  no 
evidence  before  yon,  none  whatever,  that  either  of  those  was  ever  ap 
pointed  as  directed  by  the  Legislature  of  Louisiana  to  vote  for  Pres 
ident  and  Vice-Presideut  of  the  United  States.  You  ought  to  have 
some  evidence  before  you  receive  those  votes,  ought  you  not?  The 
statute — not  of  Louisiana,  but  the  statute  of  the  United  States — com 
mands  that  you  should  seek  for  and  should  find  their  authority  so  to 
vote,  certified  to  you  by  the  governor  of  that  State.  Can  you  dis 
pense  with  that  evidence,  substitute  anything  else  for  it  ?  It  is  con 
ceded  all  about  me  on  all  these  papers  that  no  man  can  have  his  vote 
counted  for  President  and  Vice-President  of  the  United  States  unless 
his  right  so  to  vote  is  certified  by  the  governor  of  the  State.  Those 
gentlemen  who  urge  you  to  accept  the  votes  tendered  here  by  McEu 
ery  and  Wickliffe  do  not  seek  to  derogate  from  the  authority  of  the 
statute  of  the  United  States  nor  to  dodge  at  it  all ;  their  effort  is,  you 
find,  to  elevate  John  McEnery  himself  to  the  dignity  of  governor  of 
Louisiana ;  and  so  you  find  him  certifying,  as  governor  of  that  State, 
to  the  authority  of  that  board  of  electors  at  the  head  of  which  you 
find  his  own  name.  There  is  a  practical  difficulty  which  imperils 
the  success  of  that  effort,  and  it  is  this :  John  McEnery  was  not  in 
November  last,  he  never  was,  governor  of  Louisiana.  How  do  we 
know  that  ?  Simply  because  we  are  rational  beings,  and,  as  such,  wo 
are  bound  to  kuow  it.  We  may  be  ignorant  of  a  great  many  things 
in  this  world,  and  we  are,  God  knows ;  but  there  is  one  thing  of 
which  wo  are  not  permitted  to  be  ignorant.  We  are  bound  to  know 
who  is  the  governor  of  a  State  in  this  Union  ;  and  being  bouud  to 
know  that  no  State  can  have  more  than  one  governor,  when  we  come 
to  know  who  that  man  is,  then  we  know  that  all  the  rest  of  God's 
beings  are  not. 

But  I  do  not  content  myself  merely  with  the  proposition  that  we 
are  bound  to  take,  as  I  believe  the  lawyers  say.  judicial  notice  of 
who  is  the  governor  of  a  State;  a  sort  of  notice  that  every  man  must 
take,  no  matter  whether  ho  bo  judge,  or  statesman,  or  citizen,  a 
lighterman  on  the  Atlantic  coast  or  a  lumberman  in  the  forests  of 
Michigan.  I  say  we  are  not  only  bound  to  take  this  sort  of  notice, 
but  every  one  of  yo,u  sitting  there  has  helped  to  give  notice,  has 
served  notice  on  the  world  that  John  McEuery  was  not  governor  of 
Louisiana  and  that  William  Pitt  Kellogg  was.  So  many  of  you  as 
occupy  seats  there  and  who  belong  to  the  Senate  of  the  United 
States  have  often  seen  this  signature  of  John  McEnery  attached  to 
the  credentials  of  some  aspiring  citizen  of  that  State  knocking  for 
admission  to  the  Senate;  but  you  never  have  opened  your  doors  to 
any  such  demand.  So  many  of  you  as  belong  to  the  other  House  of 
this  National  Legislature  have  seen  that  same  name  appended  to  the 
credentials  of  those  who  asked  to  be  admitted  to  the  deliberations 
of  that  body,  and  you  have  uniformly  turned  them  away  and  said, 
"  We  do  not  kuow  you,  Johu  McEnery."  I  do  not  kuow  that  in  the 
character  of  governor  he  has  ever  appeared  before  the  Supreme  Court 
of  the  United  States ;  but  another  man  has  appeared  before  that 
court,  has  been  impleaded  before  it  as  the  governor  of  Louisiana,  and 
judgment  has  been  given  in  that  court  upon  the  issue  there  formed. 
The  justices  of  that  court  will  remember  the  case  to  which  I  refer.  I 
think  it  is  the  Board  of  Liquidation  rs.  McComb.  So  that  you  have 
all  iu  your  several  capacities  been  called  upon  directly  to  pa^s  judg 
ment  \ipou  this  pretended  governor  and  have  all  given  judgment 
against  him.  When  a  committee  of  one  House  of  Congress  went  to 
Louisiana  a  few  years  ago  and  undertook  to  compose  that  State  by 
compiling  a  government  for  it  no  such  calico  as  John  McEnery  got 
into  that  patch-work  ;  another  man  was  recognized  as  the  governor 
then  and  there. 

And  yet  that  man  comes  here  again,  now  in  these  last  days,  and 
undertakes  to  certify  to  the  right  of  men  to  vote  for  President  and 
Vice-President  of  the  United  States  in  the  name  of  Louisiana.  I  have 
heard  something  said  here  in  this  presence  this  morning  about  fraud 
and  corruption.  Do  you  kuow,  have  you  heard,  of  any  indication  of 
fraud  anywhere  or  iu  anybody  so  bald  and  palpable  as  this  of  John 
McEuery's  attempting  to  pass  himself  oft",  not  only  upon  this  high 
Commission,  but  upon  the  nation  itself,  as  governor  of  Louisiana? 
Very  cunning  men,  I  know,  sometimes  attempt  to  pass  and  do  pass 
upon  business  men  spurious  notes  as  genuine,  and  you  take  it  as  the 
trick  of  a  knave,  to  be  sure,  but  of  a  smart  knave.  What  would  you 


ELECTORAL   COMMISSION. 


say  of  a  man  who  should  bring  to  a  bank  of  issue  a  note  pretending 
that  it  was  manufactured  on  its  own  plates  but  which  had  actually 
beenstamped  "  counterfeit "  by  half  the  receiving  tellers  in  the  United 
States  and  offer  that  as  genuine  to  the  bank  from  which  it  purported 
to  be  issued  ?  You  would  not  say  that  was  the  effort  of  a  smart  knave, 
would  you?  But  here  this  man  comes  again,  this  man  whose  pro- 
tentions,  as  I  say,  have  been  repudiated  just  as  often  aa  they  have 
been  thrust  forward ;  he  comes  in  here  once  more,  once  again  with  all 
the  spiightliuess  and  vivacity  with  which  a  half  eagle  is  thrown  out 
that  has  just  come  from  the  mint.  "  Here  we  come  again,  sirs,"  he 
says,  "  Governor  John  McEnery,  of  Louisiana."  No,  Mr.  President, 
no  ;  I  think  I  will  not  spend  more  time  on  Mr.  John  McEnery. 

I  said  you  have  determined  that  another  man  was  governor  of 
Louisiana,  William  Pitt  Kellogg.  For  good  or  for  ill,  for  four  years 
past,  William  Pitt  Kellogg  has  presided  over  that  State  as  its  gov 
ernor,  recognized  as  such  both  by  the  legislative  and  judicial  depart 
ments  of  that  State,  recognized  expressly  as  such  by  the  Senateof  the 
United  States,  more  than  once  by  the  Senate,  recognized  expressly 
as  such  by  the  House  of  Representatives  when  the  pretensions  of  both 
men,  Kellogg  and  McEnery,  were  before  the  House,  one  certifying 
that  Spencer  was  entitled  to  a  seat  and  another  certifying  that  Morey 
was  entitled  to  a  seat.  This  House  >of  Representatives  said:  "We 
know  Kellogg  ;  we  do  not  know  McEuery ;  therefore  Morey  shall 
take  his  seat  in  the  House  and  Spencer  must  stand  back."  The  Presi 
dent  more  than  once  has  recognized  him.  He  is  the  man  who  has 
signed  the  enactments  of  the  Legislature  of  Louisiana,  or  he  has 
relused  to  sign  them.  If  he  has  approved  them,  they  become  laws  ; 
if  he  has  vetoed  them,  they  have  not  become  laws  unless  passed  in 
spite  of  his  veto.  He  has  granted  pardons  or  he  has  refused  to  grant 
pardons;  and  almost  ten  millions  of  the  bonds  of  Louisiana  bearing 
his  signature  are  afloat  to-day  in  the  money  markets  of  the  world. 
Kellogg,  I  think,  will  pass  here,  as  elsewhere  through  creation,  as  the 
governor  of  Louisiana  in  November  last;  and  he  tells  you  who  were 
the  constituted  electors  of  that  State,  in  accordance  with  the  direc 
tions  of  the  Legislature,  to  vote  for  that  State  in  the  choice  of  a  Presi 
dent  and  Yice-Presideiit.  Do  you  want  more  evidence  ?  Will  yon 
contradict  that?  That  is  the  very  evidence  which  our  statute  tells 
you  to  look  for  and  all  it  tells  you  to  look  for. 

I  know  the  Constitution  says  that  each  State  shall  appoint  a  pre 
scribed  number  of  electors  in  any  such  way  as  the  Legislature  of  the 
State  shall  direct,  and  perhaps  you  may  feel  authorized  to  go  a  little 
back  of  this  certificate  of  the  governor  of  a  State  in  order  to  see 
whether  he  has  acted  in  accord  with  the  direction  of  the  Legisla 
ture  or  has  not.  In  other  words,  even  if  the  statute  of  the  United 
States  does  not  have  respect  to  the  authority  of  the  Legislature  as 
clearly  as  it  ought,  you  are  bound  to  keep  your  eyes  upon  the  Legis 
lature  of  the  State  and  fee  what  it  has  done,  sec  if  it  has  told  the  gov 
ernor  he  may  say  what  he  has  said  or  if  he  has  said  something  else  as 
governor  which  the  Legislature  did  not  permit  him  to  say.  If  you 
feel  called  upon  to  go  to  that  extent,  just  one  step  beyond  what  the 
certificate  of  the  governor  will  unfold,  there  you  find  that  certain 
officers  created  by  the  laws  of  Louisiana  canvassing  the  vote  given 
by  the  people  of  that  State  at  the  election  in  November  last  declared 
that  those  people  voted,  a  majority  of  them,  for  the  electoral  ticket 
headed  by  Kellogg  aud  Burch,  and  a  minority  of  them  alone  voted 
for  the  ticket  headed  by  McEnery  and  Wickliffo.  You  find  that  board 
by  the  law  of  that  State  directly  instructed  to  canvass  the  votes  given 
at  all  elections  and  to  declare  the  result  of  them.  "  The  returning 
officers  of  the  State,"  they  are  called,  and  the  statute  of  the  State  tells 
you  in  the  most  unqualified  terms  that  their  determination,  when 
mode  and  promulgated,  is  prima  facie  evidence  of  the  right  of  every 
man  to  hold  office  whose  right  is  so  determined  by  their  certificate  ; 
and  if  the  statute  had  not  said  so,  you  know  such  would  have  been 
the  effect  of  their  certificate  and  is  in  law  the  effect  of  every  such 
certificate  given  by  every  similar  board  in  every  State  we  have  in  the 
Union. 

Will  you  then  go  further  than  this  in  that  direction  I  The  governor 
of  the  State  has  told  you  who  were  the  electors  of  the  State,  and  going 
back  you  find  he  has  spoken  upon  the  authority  of  the  returning  offi 
cers  of  that  State,  the  only  tribunal  known  to  its  laws  which  can  in 
form  the  executive  by  authority  what  has  been  the  result  of  an  elec 
tion.  Will  you  go  further  back  ?  I  heard  you  just  now  rather  affec 
tionately  invited  to  go  back  further  still.  I  think  it  was  intimated 
that  if  you  would  go  still  further  back  some  suggestive  and  impress 
ive  testimony  would  be  laid  before  you.  I  am  aware,  and  I  ought 
to  say  in  passing  out  of  respect  to  those  who  have  urged  that  view, 
that  legal  objections  are  taken  to  the  character  of  this  board  aa  it 
was  constituted  in  fact  in  November.  I  thought  to  spend  some  time  on 
those  objections.  I  had  really  taken  the  trouble  to  look  into  some 
law  books  aud  read  some  adjudications,  and  thought  I  would  offer 
to  this  Commission  some  authorities  on  the  subject;  but  I  shall  spare 
myself  any  such  labor  and  you  any  such  infliction.  I  see  those  who 
are  to  follo«v  me  and  I  know  they  will  suffer  no  jot,  no  tittle  of  the 
law  to  fail.  If  they  do,  it  is  because  they  have  lost  their  grip,  for 
they  have  been  masters  of  it  for  many  long  years.  I  think  I  may  be 
saved  some  trouble  by  letting  the  counsel  in  this  case  do  the  very  easy 
thing,  as  I  think  it  is",  of  giving  you  the  constitutional  view  of  that 
returning  board. 

I  said  that  I  had  heard  you  rather  earnestly  entreated  to  open  these 
seals  which  are  claimed  to  close  in  the  certificate  of  the  returning 


officers  and  the  certificate  of  the  governor  of  the  State,  te  break  those 
seals,  aud  to  go  back  and  listen  to  what  can  be  proved  to  you  if  you 
will  be  good  enough  to  listen  not  only  to  what  all  the  lawyers  in  the 
United  States  may  urge,  but  to  what  all  the  citizens  of  Louisiana 
may  see  fit  to  swear.  I  do  not  undertake  to  tell  you  by  authority 
precisely  what  you  would  find  if  you  were  to  throw  those  doors  wide 
open.  I  think  I  can  give  you  a  lively  hint  of  what  you  will  find.  I 
have  been  making  myself,  under  the  instructions  of  the  Senate  of  the 
United  States,  some  inquiries  in  that  direction. 

The  gentleman  from  Illinois  [Mr.  Hurl  but]  who  just  addressed  you 
was  pleased  to  say  that,  judging  from  his  experience,  a  legislative  in 
vestigation  was  the  poorest  instrumentality  he  knew  of  for  arriving 
at  the  truth.  If  I  might  be  allowed  to  refer  to  my  own  very  lim 
ited  experience,  it  would  not  corroborate  that  of  the  gentleman  to 
whom  I  have  just  referred.  A  committee  of  the  Senate  went  to  Lou 
isiana.  It  represented  both  political  opinions  which  are  found  in 
that  body,  and  they  went  there  instructed  to  ascertain,  if  they  could, 
whether  the  right  of  suffrage  in  that  State  had  been  abridged  in  any 
way  either  by  fraud  or  by  force,  either  by  excluding  votes  from  tho 
ballot-box  or  by  refusing  to  count  the  votes  illegally  after  they  had 
been  deposited  in  the  ballot-box.  We  did  investigate  these  questions 
so  far  as  a  portion  of  the  State  was  concerned  ;  wo  spent  all  the  time 
we  had  and  all  the  money  the  two  Houses  would  furnish  us,  not  by 
way  of  an  ex  parte  inquiry,  by  any  manner  of  means.  We  took  up 
parish  after  parish;  and  when  we  had  entered  upon  the  examination 
of  one  parish  wedidnot  quit  that  until  we  supposed  we  had  every  fact 
concerning  it  which  witnesses  could  establish  before  us,  not  witnesses 
called  on  one  side,  but  called  on  the  other  side  also.  I  know  that 
one  political  opinion  was  represented  by  the  larger  number  of  mem 
bers  ou  that  committee ;  but  I  believe  that  when  that  committee 
closed  its  labors  a  majority  of  the  witnesses  who  had  been  sworn  iu 
that  whole  examination — I  do  not  assert  this  as  a  fact  but  I  believe 
that  a  majority  of  those  who  had  been  sworn  had  been  called  by  the 
minority  of  that  committee. 

The  first  parish  of  which  we  made  inquiry  happened  to  be  the  parish 
of  Ouachita,  which  is  on  the  river  of  that  name  almost  classic  iu  our 
history.  It  was  upon  that  river  I  believe  that  Blenuerhassett  and 
Burr  made  their  purchase  of  the  Baron  de  Bastrop,  whose  appellation 
gives  name  to  the  shire  town  of  the  adjoining  parish;  and  I  think  I 
shall  venture  to  tell  the  Commission  something  of  what  wo  discovered 
touching  the  election  in  Ouachita  Parish. 

You  have  heard  it  said  here  that  those  returning  officers  did  not 
count  the  votes  which  were  actually  cast  by  the  voters  of  Louisiana 
at  the  last  election,  did  not  canvass  them  at  all,  rejected  some  from 
their  count.  How  do  you  know  that  ?  Louisiana  has  not  told  you 
that.  They  say  they  will  prove  it  to  you  if  you  will  be  good  enough 
to  step  behind  both  the  certificate  of  the  governor  and  the  certificate 
of  the  returning  officers.  Possibly  ;  but  as  yet  you  do  not  know  that. 
Counsel  say  it  is  so.  I  agree  with  them  ;  it  is  so  ;  but  then  it  is  not 
Louisiana  tells  you  :  it  is  only  what  we  tell  you.  You  are  good  enough 
to  hear  us  argue ;  I  trust  you  will  bo  altogether  too  good  to  hear  us 
testify.  Perhaps  we  are  entitled  to  some  consideration  while  wo  are 
merely  reasoning;  when  we  come  to  state  facts,  very  little.  Bub 
while  you  are  told  that  these  returning  officers  rejected  votes  that 
were  cast,  you  may  have  been  told,  you  can  be  if  you  open  the  statutes 
of  that  State,  that  that  board  was  not  only  authorized  to  reject  such 
votes  upon  certain  conditions,  but  that  the  statute  expressly  com 
manded  it.  It  is  said  here  that  certain  steps  must  be  taken  by  the 
commissioners  of  election  or  by  the  parish  supervisors,  in  order  to 
give  to  that  tribunal  jurisdiction  to  reject  votes.  I  wanted  to  speak 
upon  that,  but  I  leave  that  to  those  who  shall  come  after  me. 

They  did  reject  certain  votes.  I  concede  it.  The  statute  told  them 
in  express  terms  that  if  they  were  convinced  there  was  not  in  a  given 
parish  or  in  a  given  precinct  within  a  parish  a  fair  election,  that  either 
fraud  or  force  was  employed  materially  to  change  the  result  of  tho 
election,  they  should  exclude  from  count  the  vote  of  that  precinct  or 
of  that  parish.  They  did  reject  portions  or  the  whole  of  twenty-two 
parishes.  Portions  or  the  whole  of  seventeen  parishes  were  rejected 
upon  tho  ground  of  intimidation,  which  these  returning  officers  said 
they  found  satisfactorily  proved  to  them. 

1  have  noticed  iu  certain  quarters  a  disposition  to  ridicule  this  idea 
that  voters  can  be  induced  by  intimidation  and  fear  to  withhold  the 
vote  they  want  to  give,  much  less  made  to  give  the  vote  they  do  not 
want  to  give;  and  it  does  seem  a  little  incredible  to  a  free  citizen  of 
the  United  States  iu  the  habit  of  opening  his  mouth  and  lifting  his 
hand  on  all  occasions  freely,  to  believe  that  such  results  can  be 
wrought  by  intimidation.  After  all,  in  the  light  of  history,  no  such 
incredulity  becomes  us.  We  know  that  Henry  of  Navarre  and  his 
cousin  the  Prince  of  Conde"  werethrough  intimidation  induced  to  ab 
jure  the  Protestant  faith.  We  know  that  Galileo  on  his  knees  promised 
under  tho  influence  of  fear  that  he  never  again  would  teach  t  he  doc 
trine  of  the  earth's  motion.  And  we  know  that  one  of  the  chiefest  of 
the  apostles,  moved  by  fear,  swore  that  he  never  knew  his  own  Master, 
that  Saviour  whom  we  all  make  believe  now  to  adore.  If  great  sol 
diers  and  great  scientists  aud  great  apostles  can  be  forced  by  fear  to 
abjure  cherished  convictions,  are  we  permitted  to  doubt  that  the  poor 
and  ignorant  freedman  of  Louisiana  may  be  compelled  by  fear  either 
to  withhold  his  vote  from  the  ballot-box  or  to  put  a  vote  therein 
which  he  does  not  choose  to  put  in  ? 

Then  again,  this  theory  is  assailed  by  those  who  speak  on  behalf  of 


70 


ELECTORAL   COMMISSION. 


Louisiana  and  say  that  Louisiana  is  occupied  by  respectable  men,  by 
Christian  men,  men  who  pray  and  who  hear  prayer,  men  who  ac 
knowledge  their  relations  to  other  men  and  who  acknowledge  their 
obligations  not  only  to  this  world  but  their  relations  to  that  world 
which  is  to  come.  They  say  it  is  a  foul  libel  011  the  fair  name  of 
Louisiana  to  say  any  such  thing;  that  Louisiana  would  not  permit 
force  or  intimidation  to  bo  employed.  Would  she  not  I  Are  we 
sure  of  that  ?  Was  not  force,  was  not  fraud  ever  employed  in  the 
history  of  the  world  by  men  as  white,  by  men  as  chivalrous,  by  men 
as  decent,  by  men  as  Christian  as  any  who  occupy  Louisiana  to 
day  ? 

it  is  not  two  hundred  years  since  Louis  XIV  was  induced  to  revoke 
that  edict,  the  Edict  of  Nantes,  which  for  something  like  a  hundred 
years  had  performed  the  part  in  the  constitution  of  the  French  Em 
pire  which  we  humbly  hope  the  fourteenth  amendment  will  perform 
yet  for  the  people  of  the  United  States,  even  the  blacks  of  the  United 
States.  I  say  he  revoked  tliat  edict,  and  by  that  revocation  he  let 
loose  the  iron  hand  of  persecution,  not  on  black  men,  but  white  men 
and  white  women ;  that  iron  hand  which  drove  out  of  France  or 
slaughtered  in  France  more  than  half  a  million  of  Huguenots.  Do 
you  think  they  were  monsters  who  came  to  that  act?  The  charming 
Madame  de  Maiutenon  clapped  her  hands  in  approval  of  that  act  of 
revocation.  Bossuet,  the  most  eloquent  preacher  of  his  time  1  sup 
pose,  applauded  it,  and  churches  stooped  to  render  thanks  to  the 
ru, stress  of  the  king,  through  whose  influence  it  was  believed  that 
revocation  was  obtained.  Has  humanity  changed  so  radically  and 
utterly  since  then? 

I  need  not  go  outside  of  Louisiana  for  an  illustration,  the  known 
history  of  Louisiana.  All  remember  the  14th  of  September,  1874. 
Louisiana  then  had  a  government  as  regular,  as  well  recognized,  as 
well  known  to  all  the  people  of  the  United  States  as  New  York  has 
to-day,  and  as  respectably  filled,  I  may  say,  in  all  its  departments. 
An  armed  band  of  men  took  possession  of  the  streets  of  New  Orleans, 
the  capital  of  the  State;  in  a  moment,  almost  in  the  twinkling  of  an 
eye,  suddenly  drove  the  constituted  governor  of  the  State  from  his 
seat  and  would  have  driven  him  out  of  existence  had  he  not.  found 
protection.  I  know  they  say  that  Kellogg  was  only  a  make-believe 
governor.  Who  says  that  ?  Whoever  says  it  in  Louisiana  or  outside 
of  Louisiana  is  disloyal  to  the  law  of  Louisiana.  All  the  voice  there 
was  in  Louisiana  says  that  Kellogg  Avas  governor.  If  he  was  not  the 
lawful  as  well  as  the  de  facto  governor  of  Louisiana,  there  was  some 
tribunal  in  the  land  which  could  state  where  the  authority  was.  That 
tribunal  was  not  the  White  League  with  arms  in  their  hands  to  drive 
him  from  his  office;  there  should  have  been  an  inquisition  found  of 
some  kind  I  think  before  the  white-leaguers  of  New  Orleans  went 
for  him. 

I  was  about  to  call  attention  to  what  took  place  in  January  last. 
It  was  only  a  repetition  of'  the  same  thing.  I  must  pass  over  it.  I 
wanted  to  say  something  to  you  about  what  took  place  in  the  single 
parish  of  Ouachita  at  the  last  election,  and  I  must  be  very  brief. 
Let  me  introduce  Ouachita  Parish  to  you.  In  1868  that  parish  gave 
for  the  republican  candidate  for  governor  1,418  votes,  and  for  the 
democratic  candidate  but  347.  There  was  a  republican  majority  of 
1,071.  In  1870  there  was  a  republican  majority  of  798.  In  1872  there 
was  a  republican  majority  of  798,  precisely  the  same  figures  as  two 
years  before.  In  1874,  but  two  years  ago,  there  wyas  a  republican  ma 
jority  in  the  parish  of  927.  In  1876  there  were  2,392  colored  voters 
registered,  and  there  were  992  white  voters  registered ;  and  in  No 
vember  last  that  parish  returned  to  its  supervisor  1,865  democratic 
votes  to  793  republican  votes,  giving  a  democratic  majority  of  1,072, 
where  two  years  ago  there  was  a  republican  majority  of  927.  There 
are  men  uncharitable  enough  in  the  world  to  believe  that  intimida 
tion  was  employed  to  produce  that  result.  There  are  men,  on  the 
contrary,  wrho  say  that  intimidation  was  not  employed  at  all ;  it  was 
mere  solicitation,  it  was  artifice,  persuasion,  bargaining,  and  the  like. 
But  the  campaign  in  Louisiana  started  out  early  in  Jane,  started  out 
with  a  circular  issued  by  Mr.  Pattou,  chairman  of  the  democratic 
state  committee,  in  which  he  said — a  confidential  circular,  it  is  said, 
and  it  was  so  marked  ;  it  is  denied  that  it  was  intended  to  be  confi 
dential  ;  the  fact  is  it  did  not  get  to  the  public  until  some  time  in  Au 
gust,  through  the  columns  of  a  republican  newspaper — in  that  circu 
lar  Mr.  Patton  informed  his  friends  of  various  things,  and  this  among 
others,  that  the  negro  could  not  be  reasoned  with,  but  he  could  be 
impressed.  I  do  not  use  his  language — it  has  been  often  quoted — 
that  one  of  the  methods  he  recommended  for  impressing  the  negro 
was  that  they  should  not  only  organize  themselves  into  clubs,  but 
that  they  should  mount  their  clubs,  and  as  frequently  as  possible  they 
should  make  processions  mounted  in  order  to  exhibit  a  demonstration 
of  their  strength. 

During  the  months  of  July  and  August  the  evidence  shows  that 
the  white  people  of  Ouachita  Parish  were  organized  into  clubs, 
mounted  clubs,  and  they  did  better  than  the  instructions  of  the  chair 
man  of  the  democratic  central  committee.  They  not  only  mounted 
the  clubs,  but  they  armed  them.  The  republican  party  was  also  or 
ganized  into  clubs,  not  mounted  and  not  armed,  such  political  clubs 
as  are  organized  all  over  the  country.  So  in  that  way  during  the 
mouth  of  August  the  organization  of  both  parties  was  completed. 
On  the  30th  of  August  an  event  took  place  in  that  parish  which  gave 
a  moral  coloring  to  the  election  in  that  parish.  On  the  30th  of  Au 
gust  Bernard  H.  Dinkgrave,  a  white  man,  a  cultivated  man,  a  native 


Louisianian,  a  man  against  whose  character  no  one  has  breathed  a 
word  except  that  the  chairman  of  the  democratic  committee  for  Oua 
chita  parish  said  that  he  was  a  violent  partisan — Bernard  H.  Dink- 
grave  was  shot  down,  about  four  o'clock  in  the  afternoon,  going  from 
his  office  in  Monroe  to  his  house  just  outside  of  the  town.  It  is  said 
that  that  was  not  done  for  political  effect.  It  has  been  sugge.sti'd 
that  the  death  grew  out  of  a  difficulty  he  had  in  1870  with  a  man  by 
the  name  of  Wibble,  or  it  grew  out  of  an  arrest  that  he  made  two 
years  before  when  ho  was  sheriff  of  Ouachita  Parish  of  a  man  by  file 
name  of  Allen. 

Upon  that  single  point  a  great  deal  of  evidence  was  taken.  I  must 
content  myself  with  saying  that,  weighing  the  evidence  as  carefully 
as  I  could,  I  liave  no  more  doubt  that  Bernard  H.  Dinkgrave  was 
killed  for  political  effect  than  I  have  that  he  was  killed  at  all.  But 
no  matter  whether  he  was  killed  for  political  effect  or  not,  it  had  a 
political  effect.  The  people  of  Ouachita  Parish,  the  colored  people  at 
all  events,  believed  that  ho  was  killed  for  political  effect.  Republic 
an  effort  was  paralyzed  at  once.  Another  republican  meeting  was 
not  held  in  the  parish  until  some  time  in  October,  and  after  troops 
had  been  stationed  at  Monroe  ;  and  no  meeting  I  think  wa.s  held  by 
the  republican  party  anywhere  whi  re  the  troops  of  the  United  States 
were  not  near  the  place  of  meeting. 

I  ought  to  have  preceded  this  allusion  to  the  death  of  Dinkgrave 
by  giving  an  idea  of  the  state  of  the  canvass  on  the  19th  of  August. 
I  read  from  the  Vienna  Sentinel  a  letter  directed  to  that  newspaper 
by  the  editor,  written  from  Monroe,  of  this  parish  of  Ouachita  : 

Politics  in  Ouaoliita  are  gaining  more  attention  than  at  any  previous  election 
since  leGO.  In  fact,  every  man,  woman,  and  child  seems  to  have  his  or  her  wholo 
soul  in  tlio  contest.  This  is  encouraging,  and  a  good  sign  of  state  of  hopo  in  tho 
democratic  mind  is  that  there  are,  or  rather  were,  numerous  candidates  for  parish 
offices.  I  say  were,  because  they  are  now  reduced  to  one  candidate  for  each  of  Bee, 
tho  democrats  having  hold  their  parish  nominating  convention  on  Saturday  last. 
If  the  democrats  are  hopeful  in  this  parish,  they  have  good  cause  to  be  so.  While 
they  present  an  unbroken  front  and  an  admirable  organization,  the  radicals  aro 
•wavering,  disheartened,  and  scared.  There  a  few  bold,  empty-headed  orators 
among  the  latter  who  either  have  not  senso  enough  to  appreciate  the  situation  or 
aro  willing  to  draw  us  on  to  any  extremes  in  order  that  their  elevation  may  be  se 
cured.  It  is  human  nature  to  admire  boldness,  but  when  boldness  is  united  to 
rascality  it  is  Louisiana's  nature  to  deal  summarily  with  it.  These  inflammatory 
spouters,  demagogues  in  the  truest  sense  of  the  word,  are  using  their  best  effort  a 
to  iustill  bad  principles  iuto  tho  minds  of  tho  colored  people,  and  seem  to  be  anx 
ious  to  precipitate  a  violent  conflict  between  the  two  races.  Nothing  could  bo 
furt  her  removed  from  tho  wishes  of  the  whites  of  this  community  ;  but  if  anything 
of  the  kind  should  come  about,  there  is  a  stern  resolve  that  tho  foolish  cat's-paw, 
the  negro,  shall  not  bo  the  only  sufferer.  The,  promoters  of  these  murderous  prin 
ciples  are  well  known  aud  well  watched,  aud  tke  halter  for  their  necks  is  already 
greased. 

That  was  written  on  the  8th  of  August,  and  it  appeared  in  tho 
Sentinel  on  the  19th.  It  appeared  in  Monroe  on  the  21st.  A  witness 
swore  that  up  to  this  time  only  three  republicans  had  taken  part  in 
tho  caavass  in  that  parish.  One  was  this  Bernard  H.  Dinkgrave; 
one  was  his  nephew,  John  H.  Dinkgrave ;  one  was  George  B.  Hamil 
ton,  a  colored  man  and  sheriff  of  the  parish.  On  the  30th  of  August 
following  this  publication  in  this  newspaper,  Dinkgrave,  one  of  the 
three,  Avas  assassinated;  Hamilton  fled  to  New  Orleans;  and  no  fur 
ther  attempts  were  made  to  organize  or  to  rally  the  republican  party 
in  that  parish  until  in  October  following.  On  the  10th  of  October 
another  tragic  event  occurred.  I  have  got  to  pass  over  a  multitude. 
I  have  here  among  my  papers  a  schedule  of  eighty-odd  different  out 
rages  committed  upon  persons  or  property,  numbering,  I  think,  five 
murders  ;  I  do  not  know  the  number  of  whippings ;  I  do  not  know  tho 
number  of  robbings;  I  must  pass  over  all  these;  but  on  the  10th  of 
October  another  event  occurred. 

Eaton  Logwood  in  the  broad  daylight  was  visited  by  a  party  of 
mounted  men,  was  shot,  severely  wounded.  His  brother-in-law  at  tho 
same  place  and  at  the  same  time  was  shot  dead.  Either  from  the  in 
fluence  of  these  visitations,  where  red-handed  murder  traveled  at 
noonday,  or  under- the  influence  of  the  barbecues  and  tho  speeches 
to  which  we  are  referred  on  the  other  side,  there  was  a  very  marked 
effect  produced  upon  the  colored  population  of  Ouachita  Parish.  A 
great  number  of  them  had  been  induced  up  to  that  time  to  join  demo 
cratic  clubs.  Great  numbers  of  them  had  not  been  induced  to  join 
democratic  clubs  even  up  to  that  time ;  but  a  letter  I  wanted  to  refer 
to,  but  must  pass  by,  written  to  one  of  tho  organs  of  the  party  in  New 
Orleans,  and  written  from  Monroe  later  in  October,  spoke  quite  hope 
fully  of  the  result;  said  they  could  not  calculate  it  accurately;  it 
was  liable  to  a  great  many  contingencies  aud  accidents;  but  that 
already  a  great  many  colored  men  had  joined  their  clubs  and  they 
were  inclined  to  think  would  stick,  but  there  were  two  difficulties  in 
the  way.  There  were  a  great  many  colored  men  who  had  not  joined 
their  clubs,  and  there  was  not  absolute  certainty  that  those  who  had 
joined  would  stick.  For  some  reason  or  other  a  demonstration  seemed 
to  be  thought  necessary  by  some,  and  that  demonstration  was  mado 
on  the  Saturday  night  before  the  election  which  took  place  on  Tues 
day. 

On  that  night  the  house  of  one  Abiaham  Williams  was  visited  by 
a  party  of  mounted  disguised  men  and  he  was  taken  from  his  bed  and 
his  house  and  he  was  stripped  and  ho  was  whipped  brutally.  He  was 
a  man  sixty  years  old.  The  house  of  his  son  was  visited  tho  same  night 
and  unquestionably  by  the  same  party.  He  was  sleeping  iu  a  cotton- 
field,  not  daring  to  sleep  under  his  own  roof,  and  not  finding  him  his 
wife  was  taken  eut  of  the  house  and  she  was  whipped.  The  house  of 
Willis  Frazier  was  visited  on  the  same  night  and  undoubtedly  by  the 


ELECTORAL  COMMISSION. 


71 


same  party  of  men,  mounted  men,  disguised  men,  and  he  was  taken 
ont  from  his  house  and  he  was  whipped  brutally.  The  house  of  Ran 
dall  Driver  was  visited  and  he  had  heen  admonished  over  and  over 
again  by  democrats  that  he  was  exposing  himself  to  peril.  Oil  this 
night  his  house  was  visited  and  he  was  taken  out  and  whipped.  The 
house  of  Henry  Pinkston  was  visited  and  he  was  killed  and  his  child 
•was  killed  and  his  wife  was  nearly  killed. 

I  see  that  I  cannot  stop  to  dwell  upon  any  one  of  these  cases.  I 
can  speak  of  the  effects  produced  in  a  moment.  While  speeches  and 
barbecues  -were  the  order  of  the  day,  Willis  Frazier,  Alexander  Will 
iams,  Abraham  Williams  had  not  joined  democratic  clubs.  The 
Tuesday  after  they  were  whipped  some  of  these  men  went  submis 
sively  to  the  polls  and  voted  the  democratic  ticket.  Henry  Pinkston 
did  not  go  to  the  polls  on  that  day ;  he  had  settled  his  accounts  with 
the  world.  Randall  Driver  did  go  to  the  polls.  Whipped  till  he 
could  not  stand,  he  had  his  wife  anoint,  his  body,  his  sores,  with  ker 
osene  oil  and  lay  him  ont  before  the  fire  on  a  cot,  and  there  he  lay 
till  morning,  and  then  he  told  his  wife  to  help  him  on  to  a  chair  ; 
he  told  his  wife  to  help  him  on  with  his  clothes  ;  he  told  his  wife  to 
help  him  to  his  stick;  and  when  she  asked  him  where  he  was  going 
he  said  he  was  going  to  Monroe  to  vote  "  dat "  ticket  if  it  took  him 
three  days  to  get  there,  and  he  started,  aud  he  did  get  to  Monroe. 
He  reached  it  in  the  afternoon,  and  he  did  vote  the  republican  ticket, 
and  ho  was  the  only  man  visited  that  night  who  did.  Knowing  that 
they  could  not  vote  at  any  other  polls  than  those  in  Monroe,  the  ne 
groes,  so  many  of  them  as  had  not  been  forced  into  democratic  clubs, 
made  up  their  minds  to  make  their  way  to  Monroe,  and  to  vote  there ; 
and  against  that  poor  privilege  there  was  an  organized  effort  made. 
The  mayor  of  the  town  issued  a  proclamation  to  those  who  had  como 
in  to  leave,  and  rifle  clubs  picketed  the  highways  leading  into  the 
city  of  Monroe  to  keep  men  who  had  not  come  in  from  coming  iu. 

I  am  making  no  presentation  of  these  facts.  The  election  was  held, 
and  the  next  step  was  to  get  affidavits  that  the  election  had  been 
fair. 

Mr.  Commissioner  PAYNE.  Mr.  Howe,  before  you  pass  to  that 
point,  will  you  be  good  enough  to  say  whether  the  facts  you  have  nar 
rated  were  found  to  be  such  by  the  united  report  of  the  committee, 
or  was  there  a  difference  of  opinion  ? 

Mr.  Senator  HOWE.  There  has  been  no  report  of  the  committee. 
I  am  stating  the  impressions  the  evidence  made  on  my  mind — evi 
dence  not  introduced  by  one  party — in  this  very  parish  of  Ouachita. 
I  think  forty-eight  witnesses  were  sworn  on  the  part  of  the  republicans 
and  forty-nine  witnesses  were  sworn  on  the  part  of  the  democrats. 

But  these  are  my  views,  not  testimony,  that  I  am  giving  you,  and 
nobody  else's.  I  have  only  spoken,  and  briefly  spoken,  of  some  of 
the  very  few  incidents  which  transpired  in  a  single  parish.  I  shall 
not  allude  to  any  other  parish ;  but  I  want  to  submit  to  the  Commis 
sion  one  table  which  I  think  is  quite  suggestive  of  the  question  of 
what  would  be  ascertained  if  there  was  a  careful  examination  made 
of  every  parish,  as  was  made  of  this  one  and  of  several  other  parishes. 

There  are  seventeen  parishes,  as  I  remarked  to  the  Commissjou, 
from  which  votes  were  excluded  upon  the  ground  of  intimidation. 
In  those  seventeen  parishes  there  was  a  white  vote  registered  of 
20,320 ;  there  was  a  colored  vote  registered  of  27,269.  The  colored 
registration  was  in  a  majority  in  those  seventeen  parishes,  in  which 
the  returning  officers  said  intimidation  was  employed,  of  6,949.  In 
the  other  forty  parishes  of  the  State  there  was  a  colored  registration  of 
87,899  and  awhite  registration  of  72,034,  leaving  a  colored  majority  of 
15,965.  In  those  forty  parishes  where  no  intimidation  is  alleged  the 
result  of  the  vote  I  give  you.  Kellogg's  vote  in  those  forty  parishes 
was  65,747  and  McEnery's  vote  was  59,392.  Where  intimidation  is 
not  alleged,  in  forty  parishes,  a  colored  registration  of  15,965  majority 
yields  a  republican  majority  ou  the  vote  of  over  6,000  ;  but  in  the 
seventeen  parishes  where  intimidation  is  alleged  the  result  is  very 
different.  One  would  suppose  that,  if  a  colored  registration  majority 
of  15,000,  where  the  election  is  fair,  yields  a  republican  majority  of 
nearly  7,000,  a  colored  registered  majority  of  6,949  would  yield  some 
republican  majority.  Ou  the  contrary,  in  those  seventeen  parishes 
21,123  votes  were  returned  for  the  democrat  ticket  and  but  10,970 
for  the  republican  ticket,  making  a  democratic  majority  of  10,153  iu 
the  seventeen  parishes. 

I  see  that  I  have  exceeded  my  time. 

The  PRESIDENT.  There  were  seven  minutes  extended  to  Mr. 
Jenkes  aud  I  proposed  to  extend  the  same  to  you,  so  that  you  have 
a  minute  or  two  more.  When  the  time  is  extended  to  one  side, 
I  always  extend  it  to  the  other. 

Mr.  Senator  HOWE.  I  will  occupy  that  minute  in  stating  that 
I  am  clear  upon  the  point  that  in  those  parishes  where  you  hear  so 
much  complaint  that  votes  were  rejected  from  the  count,  notwith 
standing  the  rejection  the  democratic  ticket  has  a  larger  compara 
tive  vote  in  those  parishes  than  it  had  in  the  same  parishes  two 
years  ago. 

I  close  with  one  other  reflection.  I  remember,  and  you  have  not 
forgotten,  how  you  were  invoked  just  now  to  exert  all  the  authority 
you  have  or  could  find  to  save  the  nation  from  drinking  waters  from 
these  filthy  pools  which  it  is  said  are  concocted  there  by  the  political 
tricksters  who  manage  politics  in  Louisiana.  I  make  no  such  an  ap 
peal  to  this  Commission.  I  ask  this  Commission  to  listen  to  the  law 
ful  voice  of  Louisiana  as  it  would  listen  to  the  lawful  voice  of  any 
other  State.  Give  weight  to  it.  Hoar  it.  There  is  more  than  one  foul 


objections 


stream  to  be  found  in  the  State  of  Louisiana.  That  to  which  you 
have  been  pointed  may  be  dirty.  Coming  right  from  that  State,  I 
know  of  other  and  larger  streams  which  are  not  merely  dirty,  but  arc 
very  bloody.  I  would  be  glad  if  iu  this  tribunal  or  in  any  there  was 
power  to  say  that  only  pure  water  should  run  anywhere;  but  the 
power  does  not  reside  iu  any  tribunal.  I  want  your'streams  all  clean 
and  purified  as  soon  as  it  can  be  done.  Take  the  fouler  element  out, 
first. 

The  PRESIDENT.  Who  are  the  counsel  in  favor  of  the  objection 
to  certificates  Nos.  1  and  3  ? 

Mr.  CAMPBELL.    Mr.  Carpenter,  Mr.  Trumbull,  and  myself. 

The  PRESIDENT.    Who  are  the  counsel  iu  favor  of  tho'ob.iecti( 
to  certificate  No.  2  ? 

Mr.  EVARTS.     Mr.  Stoughton,  Mr.  Shellabarger,  aud  myself. 

The  PRESIDENT.     Three  on  each  side. 

Mr.  CAMPBELL.  I  would  ask,  may  the  Commission  please,  that 
the  time  might  be  extended.  I  understood  that  there  is  an  allowance 
of  three  hours.  I  would  ask  permission  that  the  time  be  extended 
to  six  hours  for  either  side,  and  I  would  state  the  reason 

Mr.  PRESIDENT.  Excuse  me  a  moment.  By  the  rule  the  allow 
ance  is  two  hours  on  each  side. 

Mr.  CAMPBELL.  We  ask  for  six  hours  on  a  side,  twelve  hours  in 
all.  The  Commission  must  perceive  that  on  the  objections  which  have 
been  presented  probably  every  question  that  can  ever  arise  under 
the  existing  laws  of  the  United  States  and  its  present  Constitution 
will  come  up  for  the  examination  of  this  Commission.  It  comprehends 
nearly  everything  that  can  probably  take  place  in  a  presidential 
election  and  bo  the  cause  of  any  question.  Uuder  such  circumstances 
it  seems  to  me  that  a  full  and  frank  discussion  ought  to  be  permitted 
and  a  sufficient  time  allowed  in  order  that  that  discussion  may  be 
made. 

The  PRESIDENT.  Would  not  four  hours  on  a  side  possibly  answer 
your  purpose  ? 

Mr.  CAMPBELL.    My  friends  think  not. 

Mr.  EVARTS.  On  our  part,  Mr.  President,  we  had  supposed  that 
the  instruction  given  to  counsel  already  by  the  determination  of  the 
Commission  as  announced  upon  the  discusssons  heretofore  had  iu  the 
Florida  case  had  greatly  reduced  the  possible  area  of  discussion;  that 
the  principal  and  prclimiuary  considerations  common  to  all  the  cases 
in  the  nature  of  the  reach  and  effect  of  evidence  had  already  been 
passed  upon ;  and  that  we  certainly  should  have  no  occasion  to  ask 
more  than  the  time  of  an  hour  for  each  counsel.  We  shall  submit  to 
your  honors'  direction  in  that  regard. 

Mr.  CARPENTER.  The  Court  will  pardon  a  suggestion.  The  great 
difficulty  in  arguing  this  case  is  to  determine  in  the  first  place  what 
statute  law  was  in  force  wheu  the  election  was  held  in  Louisiana. 
That  requires  an  examination  of  a  great  many  statutes  and  is  a  ques 
tion  of  great  intricacy.  Then  the  other  questions  arising  in  the  case 
are,  as  we  understand  them,  totally  different  from  the  questions  aris 
ing  in  the  Florida  case.  Of  course  the  learned  counsel  on  the  other 
side  will  not  be  compelled  to  speak  six  hours;  it  is  only  permission, 
not  compulsion  ;  and  if  they  do  not  think  it  necessary,  of  course  they 
will  not  avail  themselves  of  the  privilege.  But  regarding  this  as  the 
most  important  case  ever  heard  in  this  country,  regarding  it  as  a  case 
in  which  the  attempt  is  made  to  disfranchise  10,000  legal  voters  of 
a  State,  we  submit  that  to  ask  twelve  hours'  hearing  on  10,000  dis- 
franchisemeut  is  not  an  unreasonable  request. 

Mr.  Commissioner  ABBOTT.  Mr.  President,  I  move  you  that  the 
time  bo  extended  to  six  hours  on  each  side  as  desired.  I  think  it  is 
very  much  more  important  that  we  should  have  all  these  questions, 
which  are  so  numerous  and  so  very  important,  discussed  fully  than 
to  shorten  the  time  and  not  have  all  the  light  there  is  on  them  that 
can  possibly  be  given. 

The  PRESIDENT.  The  motion  submitted  by  Judge  ABBOTT  is  that 
the  time  for  discussion  be  extended  to  six  hours  on  a  side. 

Mr.  Commissioner  GARFIELD.  I  move  to  amend  by  making  it 
four  hour  on  each  side. 

The  PRESIDENT.  Do  you  move  to  strike  out  "six  "and  insert 
"four?" 

Mr.  Commissioner  GARFIELD.    Yes,  sir. 

Mr.  Commissioner  HOAR.  Mr.  President,  the  questions  of  the 
character  to  which  Mr.  Carpenter  alluded,  of  the  existing  laws  of 
the  State  of  Louisiana,  can  certainly  be  discussed  with  great  con 
venience  upon  printed  briefs.  Counselhave  the  fullest  opportunity  to 
submit  printed  briefs  in  addition  to  their  oral  arguments.  It  does 
not  seem  to  me  that  there  is  any  case  made  for  any  extension  what 
ever. 

Mr.  CARPENTER.  Pardon  me  a  suggestion.  If  this  court  could 
hear  on  printed  briefs  and  settle  that  question  so  that  we  should 
know 

Mr.  Commissioner  HOAR.  I  do  not  think  counsel  should  take  part 
in  the  discussions  of  the  tribunal  after  they  have  beeu  heard. 

The  PRESIDENT.  I  presume  not.  It  is  now  between  members  of 
the  tribunal. 

Mr.  Commissioner  EDMUNDS.  I  move  that  this  Commission  take 
a  recess  for  thirty  minutes. 

Mr.  Commissioner  ABBOTT.  I  think  we  can  afford  to  sit  here  later 
at  night  for  the  purpose  of  having  this  matter  fairly  and  fully  dis 
cussed. 

The  PRESIDENT.    Mr.  EDJIUXDS  moves  that  the  Commission  take 


ELECTORAL  COMMISSION. 


a,  recess  for  thirty  mi  nates.  I  must  regard  that  as  preceding  the  other 
question,  as  it  riiay  be  for  the  purpose  of  consultation.  The  question 
is  on  tho  motion  that,  them  be  a  recess  for  thirty  minutes. 

Mr.  Commissioner  EDMUNDS.  I  will  say  until  half  past  four ;  that 
will  be  three-quarters  of  an  hour. 

Mr.  Commissioner  FIELD.    I  ask  for  the  yeas  and  nays. 

Tho  yeas  and  nays  were  ordered ;  and  being  taken,  resulted — yeas 
11,  nays  4  ;  as  follows: 

Those  who  voted  in  the  affirmative  were  :  Messrs.  Bayard,  Bradley, 
Clifford,  Edmunds,  Frelinghuysen,  Gartield,  Hoar,  Miller,  Morton, 
Strong,  and  Thnnnan — 11. 

Those  who  voted  in  tho  negative  were  :  Messrs.  Abbott,  Field,  Ilun- 
ton,  and  Payne — 4. 

So  the  mot  ion  was  agreed  to ;  and  the  Commission  (at  three  o'clock 
and  forty-seven  minutes  p.  in.)  took  a  recess  until  four  o'clock  and 
tlrrty  minutes  p.  in. 

The  Commission  re-assembled  at  four  o'clock  and  thirty  minutes 
p.  m. 

The  PRESIDENT.  The  Commission  has  decided  to  allow  four  and 
a  half  hours  for  argument  on  each  side.  The  Commission  has  also 
voted  to  continue  the  session  to-night  until  nine  o'clock. 

Mr.  Commissioner  STRONG.  I  move  that  tho  recess  be  continued 
half  an  hour  longer. 

The  motion  was  agreed  to ;  and  (at  four  o'clock  and  thirty-five  min 
utes)  the  Commission  took  a  recess  until  five  o'clock  and  live  minutes 
p.  m. 

The  Commission  re-assembled  at  five  o'clock  and  five  minutes  p.  m. 

Mr.  CARPENTER.  If  tho  court  please,  of  the  four  and  a  half 
hours'  time  assigned  to  each  side,  if  tho  court  will  permit  it,  we  ask 
indulgence  to  be  allowed  to  make  an  argument  for  an  hour  or  so  upon 
these  laws  and  upon  tho  general  question  which  the  case  involves  bo- 
fore  offering  our  evidence;  of  course  with  the  distinct  understanding 
that  we  are  not  closing  the  case,  but  that  we  are  opening  preparatory 
to  offering  our  proof. 

Tho  PRESIDENT.  Occupying  a  portion  of  the  four  hours  and  a 
half? 

Mr.  CARPENTER.  Whatever  time  we  take  of  course  to  come  out 
of  our  four  hours  and  a  half. 

The  PRESIDENT.  I  see  no  objection  to  that.  If  no  objection  be 
made,  that  may  be  understood. 

Mr.  CARPENTER.  If  the  Commission  please,  to  relieve  some  anx 
iety  that  exists  in  some  parts  of  the  country  near  my  own  home  as  to 
whom  I  appear  for  here,  I  desire  to  say  in  the  first  place  that  I  do  not 
appear  for  Samuel  J.  Tilden.  He  is  a  gentleman  whoso  acquaintance 
I  have  not  the  honor  of ;  with  whom  I  have  no  sympathy:  against 
whom  1  voted  on  the  7th  day  of  November  last ;  and  if  this  tribunal 
could  order  a  new  trial,  I  should  vote  against  him  again,  believing 
as  I  do  that  tho  accession  of  the  democratic  party  to  power  in  this 
country  to-day  would  be  the  greatest  calamity  that  could  befall  the 
people  except  one,  and  that  ono  greater  calamity  would  be  to  keep 
him  out  by  fraud  and  falsehood.  I  appear  here  for  10,000  legal 
voters  of  Louisiana,  who,  without  accusation  or  proof,  indictment  or 
trial,  notice  or  hearing,  have  dceu  disfranchised  by  four  villains,  in 
corporated  with  perpetual  session,  whose  official  title  is  "  the  return 
ing  board  of  Louisiana."  I  appear  here  for  the  next  republican  can 
didate  for  the  Presidency,  whoever  he  may  be,  whether  it  shall  be 
one  of  my  friends  on  this  Commission  or  some  other  man,  and  insist 
that  this  court  shall  settle  a  rule  here  by  which  in  that  campaign,  if 
we  carry  Wisconsin  by  10,000  majority  for  him,  as  I  hope  we  shall  bo 
able  to  do,  no  board  of  returning  officers  can,  by  fraud,  or  falsehood, 
or  biibery,  be  induced  or  be  enabled  to  throw  that  State  against  him 
and  against  the  voice  and  will  of  our  people. 

I  beg  your  honors  to  pause  a  moment  and  consider  the  lesson  you 
are  to  teach  to  the  future  politicians  of  this  country  by  this  day's 
work.  This  is  no  ordinary  occasion,  no  ordinary  tribunal,  no  ordi 
nary  cause.  An  emergency  has  arisen  which  baa  induced  the  two 
Houses  of  Congress  to  create  a  tribunal  never  before  known  iu  this 
country;  a  tribunal  made  up  of  whatever  is  most  distinguished  in 
this  country  for  integrity,  for  learning,  for  judicial  and  legislative 
experience,  to  tide  tho  nation  over  a  great  crisis  in  its  affairs.  Tho 
deeision  which  you  pronounce  upon  this  cause  will  stand  as  a  land 
mark  iu  all  the  future  history  of  this  country  ;  and  I  ask  you  to  pause 
and  consider  for  a  moment  what  you  are  asked  to  do  here. 

The  honorable  gentlemen  from  the  House  who  have  appeared  here 
against  us  do  not  pretend  that  by  tho  votes  given  on  the  7th  of  No 
vember  Mr.  Hayes's  electors  were  elected  in  Louisiana.  No  serious 
pretense  of  that  kind  is  made.  Now,  if  you  are  to  decide  in  this  case 
that,  no  matter  how  great  and  appalling  were  the  frauds  committed 
in  the  canvassing  of  their  votes,  although  it  be  true  as  wo  shall  offer 
to  prove  by  record  evidence  that  they  threw  out  of  their  count  over 
10,000  votes  for  the  Tilden  electors,  that  is  a  matter  you  will  not  con 
sider,  might  not  every  honorable  member  of  this  Commission  as  well 
sit  down  and  write  his  license  to  posterity  to  perpetrate  all  the  frauds 
that  ingenuity  and  self-interest  can  suggest  ? 

Since  the  last  election  the  democrats  have  got  possession  of  Florida. 
Say  to  them  by  this  decision  to-day  that  where  clear  proof  is  offered 
that  a  canvassing  board  have  acted  fraudulently  in  making  up  their 
certificates  this  high  tribunal  will  take  no  notice  of  it,  and  if  this 
tribunal  will  not  neither  House  of  Congress  over  can,  for  you  have 
here  all  the  power  of  each  House  and  of  both  Houses ;  and  if  those 


democratic  canvassers  in  Florida  do  not  send  up  another  ticket  here 
by  10,000  majority,  it  will  be  because  they  have  not  improved  upon 
the  lesson  given  them.  If  it  be  true  that  a  governor  can  certify  a 
man  as  duly  appointed  elector  of  a  State  who  has  not  received  a 
single  vote  at  tho  polls,  and  that  to  open  the  action  of  a  canvassing 
board  who  have  been  bribed  or  coerced  to  throw  away  all  the  ballots 
cast  and  certify  a  falsehood,  known  to  the  public  mind,  known  to 
both  Houses  of  Congress  from  investigations  they  have  carried  on 
through  their  committees  and  tho  examination  of  witnesses  under 
oath,  who  is  so  hopeful  as  to  believe  that  there  will  ever  bo  another 
President  elected  by  anything  but  fraud  ?  Why  go  through  with  all 
the  tremendous  labor  of  a  political  campaign  ;  why  send  your  orators 
upon  the  stump,  and  spend  thousands  of  dollars  in  circulating  docu 
ments  to  convince  the  people  that  a  certain  candidate  ought  to  be 
elected,  when  you  can  go  with  a  third  of  that  money  and  bribe  a  can 
vassing  board  and  carry  an  election  without  a  vote  ? 

Your  honors  will  see  that  I  am  not  overstating  the  case  contended 
for.  That  would  be  a  fraud  a  little  more  enormous,  but  no  different 
in  character  from  the  one  which  is  now  before  you  for  your  consid 
eration,  and,  I  ought  to  apologize  for  saying,  for  your  approval.  You 
are  expected  to  say  by  the  decision  to  be  rendered  here  to  all  the  pol 
iticians  of  the  Southern  States  and  the  Northern  States  and  the  East 
and  the  West,  "  No  matter  what  frauds  you  commit,  no  matter  IIOAV 
glaring  and  damnable,  we  see  nothing ;"  as  the  German  colonel 
when  he  went  with  a  regiment  from  Illinois  into  Alabama  said  to  the 
boys,  "Now,  boys,  I  shuts  my  eyes;  I  opens  them  at  three  o'clock  ;" 
so  this  tribunal  is  expected  to  shut  its  eyes  to  all  the  frauds  commit 
ted  in  the  canvass  of  these  votes  by  which  I  will  show  your  honors, 
not  by  declamation  and  assertion,  but  by  argument  which  iu  any 
court  of  justice  could  not  be  gainsaid,  that  this  result  was  reached  ; 
disfranchisement  was  imposed  upon  10,000  legal  voters  by  a  tribunal 
which  had  no  jurisdiction  to  exclude  a  vote.  If  these  things  can  be 
done  in  the  green  tree  what  may  wo  not  expect  to  see  in  tho  dry?  If 
in  the  centennial  year  only  of  the  life  of  our  nation  such  frauds  can 
pass  uuwhipped  of  justice,  and  not  only  pass  un whipped,  but  win  the 
prizes,  what  may  we  not  expect  when  the  degeneracy  of  this  nation 
shall  come,  as  it  has  come  to  all  nations  and  must  be  expected  some 
time  to  come  to  us  ? 

Mr.  Commissioner  THURMAN.    Have  you  a  printed  brief  ? 

Mr.  CARPENTER.  I  have,  but  not  expecting  to  speak  this  after 
noon  I  have  it  not  here,  but  will  furnish  it  to  the  Commission  in  the 
morning. 

The  first  question  which  naturally  suggests  itself  for  argument  is, 
what  is  the  nature  of  this  tribunal  and  the  character  of  its  powers? 
Something  has  been  said  upon  this  before,  and  gentlemen  have  not 
been  quite  agreed  about  it.  It  seems  to  mo  that  this  is  a  very  clear 
and  plain  question,  very  easily  answered.  Tho  Constitution  of  the 
United  States  embodies  the  American  conception  of  a  republic.  It 
gives  the  Government  sovereign  powers  over  certain  enumerated  sub 
jects,  which  powers  it  carefully  separates  into  classes,  legislative, ju 
dicial,  and  executive,  and  distributes  them  amoug%three  equal  co 
ordinate  departments  of  the  Government.  The  belief  of  our  fathers, 
and  the  philosophy  of  our  institutions,  is  that  in  no  other  way  than 
by  such  distribution  and  separation  of  powers  are  the  people  safe 
against  the  encroachments  of  those  who  shall  be  charged  with  the 
administration  of  the  Government.  The  legislative  power  is  vested 
in  the  Congress  ;  the  executive  power,  in  the  President ;  the  judicial 
power,  in  one  Supreme  Court  and  such  inferior  courts  as  Congress  may 
from  time  to  time  ordain  and  establish.  The  judges  hold  their  of 
fices  during  good  behavior,  receiving  at  stated  times  a  compensation' 
which  shall  not  be  diminished  during  their  term  of  office. 

It  is  perfectly  well  settled  everywhere  among  courts  and  lawyers 
that  the  judicial  power  spoken  of  by  the  Constitution,  conferred  upon 
the  United  States,  cannot  be  granted  or  conferred  upon  any  other  tribu 
nal  than  the  one  Supreme  Court  and  the  inferior  courts  which  Congress 
may  from  time  to  time  ordain  and  establish,  to  be  composed  of  judges 
holding  their  office  dHring  good  behavior  and  receiving  a  stated  com 
pensation  for  their  services.  It  is  therefore  perfectly  certain  that  no 
part  of  tho  judicial  power  mentioned  in  the  Constitution  is  conferred 
upon  this  tribunal  or  can  be  conferred  upon  a  tribunal  organized  as 
this  is. 

The  Court  of  Claims  was  originally  created  a  mere  tribunal  to  ex 
amine  claims  against  the  Government.  The  act  of  Congress  said  they 
should  render  judgments  against  the  Government.  The  judgments 
were  then  to  bo  submitted  to  the  approval  of  Congress.  If  Congress 
approved  they  paid  them,  but  if  they  did  not  they  did  not  pay  them. 
The  Supreme  Court  in  the  case  of  Gordon  vs.  The  United  States,  2 
Wallace,  held  that  was  not  a  judicial  tribunal,  that  no  appeal  would 
lie  from  that  tribunal  to  the  Supreme  Court  because  its  judgments 
were  not  final  and  conclusive  but  were  to  be  revieved  by  Congress. 
After  that  Congress  reconstructed  that  co  irt  and  gave  to  its  judg 
ments  conclusive  effect,  since  which  appeal  i  have  been  entertained  by 
the  Supreme  Court. 

In  The  United  States  vs.  Fareira,  13  Howard,  40,  an  act  of  Congress 
had  conferred  upon  the  district  judge  of  the  United  States  for  Florida 
the  power  to  examine  and  adjust  certain  claims  under  our  treaty  with 
Spain,  which  decision  of  his  was  to  be  submitted  to  the  Secretary  of 
tho  Treasury  together  with  the  evidence  upon  which  it  rested,  and  if 
by  the  Secretary  believed  to  be  just  they  were  to  be  paid;  otherwise, 
not.  The  question  in  that  case  came  before  the  Supreme  Court  whether 


ELECTORAL  COMMISSION. 


73 


that  created  a  judicial  tribunal  iu  the  district  judge,  or  whether,  to 
use  more  appropriate  words,  he  was  exercising  judicial  power.  The 
court  by  Tauey,  Chief-Justice,  said : 


The  powers  conferred  by  these  acts  of  Congress  upon  the  judge  : 
Secretary  are,  it  is  true,  judicial  in  their  nature,  for  judgment  and  di: 


Connected  with  the  report  of  that  case  in  13  Howard  is  a  note  sub 
sequently  composed  by  Chief-Justice  Taney  referring  to  the  Hay  burn 
case  which  I  have  not  time  to  spend  upon  further  than  to  refer  this 
court  to  it. 

Then  I  say  upon  the  authority  of  that  decision  as  well  as  upon  the 
plain  reading  and  sense  of  the  Constitution  itself,  there  is  no  judicial 
power  vested  in  this  tribunal ;  none  could  be  vested  here ;  and  it  is 
equally  clear  that  Congress  has  not  intended  to  vest  any  here,  be 
cause  it  has  expressly  reserved  the  power  in  the  bill  which  created 
this  tribunal  to  pass  in  review  all  your  action  and  set  it  aside  if  the 
two  Houses  so  determine.  A  power  which  is  to  be  exercised  by  any 
inferior  tribunal — I  do  not  mean  inferior  except  in  the  constitutional 
sense,  inferior  to  the  Supreme  Court  of  the  United  States— which  is 
reviewable  otherwise  than  by  a  court  possessing  superior  appellate 
jurisdiction,  judicial  jurisdiction,  is  not  a  tribunal  exercising  judicial 
power.  That  was  the  point  expressly  decided  in  the  case  I  have 
cited. 

Now  upon  the  very  face  of  the  bill  creating  this  tribunal  your  de 
cisions  are  to  be  reported  to  both  Houses  of  Congress  and  the  two 
Houses  of  Congress  may  set  them  aside.  There  is  an  end,  then,  of 
saying  that  this  tribunal  is  exercising  judicial  power,  and  that  whether 
you  decide  that  votes  shall  be  counted  for  Mr.  Hayes  or  counted  for 
Mr.  Tilden  it  precludes  the  question  between  those  two  individuals. 
It  does  not,  it  cannot. 

But  this  great  emergency  has  arisen.  The  doubt  that  hangs  over 
this  presidential  question  has  distressed  the  land,  and  obstructed  the 
wheels  of  enterprise  everywhere.  Our  people  are  crying  out  for  a  set 
tlement  of  it,  a  speedy,  satisfactory,  but  just  and  honest  settlement 
of  it ;  and  that  brings  mo  to  inquire  what  are  the  powers  possessed 
by  this  tribunal.  I  think  I  have  shown  that  they  are  not  judicial. 

A  duty  has  been  devolved  by  the  Constitution  on  the  two  Houses 
of  Congress ;  that  is,  to  count  the  votes  given  for  President  at  the 
electoral  colleges  on  the  6th  of  December  last.  Now,  I  submit  to  your 
honors  that  wherever  any  question  is  pending  before  any  legislative 
body,  whether  national  or  State  Legislature,  it  is  within  the  province 
and  power  and  jurisdiction  of  either  house  of  the  Legislature  to  in 
vestigate  the  subject  to  their  heart's  content.  The  parliamentary  law 
is  as  much  a  part  of  the  law  of  England  as  the  common  law  is,  and  it 
has  existed  for  hundreds  of  years  without  question.  It  has  been  ex 
ercised  without  question  and  without  special  grants  of  the  power  in 
the  Constitution,  because  it  is  always  implied  as  a  part  of  the  juris 
diction  of  a  legislative  body  which  has  been  exercised  by  every  State 
Legislature  of  this  country  and  is  exercised  every  day. 

Here  is  the  duty  to  count  these  votes.  It  is  to  be  done  by  the  two 
Houses.  How  shall  they  do  it  ?  Intelligently  or  blindly  ?  Do  it  so 
as  to  carry  out  justice  and  truth  or  so  as  to  insure  and  enshrine  falsehood 
and  fraud  ?  That  is  a  question  of  vast  importance  to  the  people  of  this 
country  and,  I  submit,  of  vast  importance  to  the  men  whose  consciences 
are  to  be  exercised  upon  it.  May  they  not  investigate  it  ?  May  not  the 
Senate  raise  a  committee  to  take  evidence  tending  to  show  what  has 
been  done  in  these  several  States  ?  May  not  the  House  do  the  same 
thing?  May  they  not  create  a  joint  commission  ?  Such  a  tribunal 
as  this  is  no  novelty  in  England.  There  committees  are  sometimes 
raised  by  either  house,  sometimes  raised  jointly  by  the  two  houses, 
but  more  frequently  I  thinK  in  modern  practice  by  a  statute  and  the 
appointments  usually  are  made  by  the  Crown.  For  instance  the  stat- 
\ite>  15  and  16  Victoria,  chapter  57,  provided  for  the  creation  of  a  com 
mission,  the  appointments  to  be  made  to  it  by  the  Crown,  for  the  pur 
pose  of  investigating  charges  of  corruption  in  the  election  of  members 
of  the  House  of  Commons.  They  were  authorized  to  send  for  persons 
andpapers,  to  administer  oaths,  and  examine  witnesses ;  and  by  thegen- 
eral  statutes  of  Great  Britain  false  swearing  before  that  tribunal  would 
have  been  perjury.  That  commission,  composed  of  some  of  the  most 
eminent  men  in  England,  made  their  report  to  the  two  Houses  of 
Parliament,  and  Tipou  that  report  was  based  the  legislation  which 
Great  Britain  to-day  relies  upon  to  exclude  from  the  ballot-box  the 
fraud  that  is  peeping  up  and  hoping  to  triumph  here  to-night. 

There  have  been  previous  to  this  time  two  theories  advanced  in 
regard  to  the  duty  of  counting  these  votes  :  one  that  they  should  be 
counted  by  the  President  of  the  Senate,  the  other  that  they  should 
be  counted  by  the  two  Houses ;  but  manifestly  this  bill  proceeds  upon 
the  latter  theory,  and  all  the  members  of  this  Commission,  I  take  it, 
indorse  that  theory,  for  they  appear  here  voluntarily  to  act  in  the 
performance  of  the  duties  which  that  bill,  based  upon  that  theory, 
submits  to  them.  That  that  is  the  theory  of  the  bill  is  shown  by  the 
fact  that  whatever  you  decide  the  two  Houses  of  Congress  may  set 
aside,  clearly  declaring  that  the  ultimate  power  of  making  this  count 
is  in  the  two  Houses. 

Another  theory  might  be  maintained  with  great  force  on  the  lan 


guage  of  the  Constitution  that  the  provision  that  the  President  of 
the  Senate  shall  in  the  presence  of  both  Houses  "  open  all  the  certifi 
cates  and  the  votes  shall  then  be  counted"  is  merely  the  delegation 
of  a  power  generally  without  locating  it  in  any  particular  depart 
ment  or  officer.  Most  of  the  powers  granted  by  the  Constitution  are 
located  in  some  designated  department.  The  powers  of  Congress  are 
conferred  upon  it ;  the  powers  of  the  President  are  conferred  upon 
him  ;  the  judicial  powers  upon  the  courts,  and  so  on.  There  are  in 
stances,  however,  besides  this  in  the  Constitution  where  the  power 
is  granted  in  general  terms,  for  instance,  that  most  important  pro 
vision  of  article  4,  section  4 : 

The  United  States  shall  gnnrantee  to  every  State  in  this  Union  a  republican  form 
of  government,  and  shall  protect  each  of  them  against  invasion,  and  on  application 
of  the  Legislature,  or  of  the  executive,  (when  the  Legislature  cannot  ho  convened  ) 
against  domestic  violence. 

The  last  clause  of  the  legislative  article  provides  that  Congress 
shall  have  power  "  to  make  all  laws  which  shall  be  necessary  and 
proper  for  carrying  into  execution  the  foregoing  powers,"  i.  e., 
the  power*  conferred  by  the  Constitution  upon  Congress,  and  also 
the  powers  conferred  by  the  Constitution  upon  the  Government  of 
the  United  States  and  upon  every  department  and  officer  thereof. 
Treating  this  as  a  power  granted  generally,  and  not  located  as  to  the 
particular  agency  for  its  execution,  then  it  would  be  in  the  power 
of  Congress  undoubtedly  to  create  a  commission  and  submit  the 
question  to  it;  but  when  it  created  a  commission  to  pass  ultimately 
and  finally  upon  the  subject,  it  would  have  to  do  it  as  it  passed  other 
laws;  by  its  law  it  could  only  create  the  office,  it  could  not  fill  it, 
or  designate  the  persons  who  should  exercise  its  functions.  It  might 
do  what  the  Parliament  of  England  does  in  creating  commissions, 
create  the  commission  itself  and  then  the  officers  of  it,  the  persons 
composing  it,  would  have  to  be  nominated  by  the  President  and  con- 
tinned  by  the  Senate,  as  all  other  officers  of  the  United  States  are. 
So  in  no  possible  aspect  of  the  case  can  it  be  maintained  that  this 
tribunal  is  anything  on  earth  but  a  legislative  committee  of  investi 
gation. 

Mr.  Commissioner  BRADLEY.  Mr.  Carpenter,  I  do  not  think  there 
is  a  difference  of  opinion  in  the  Commission  on  that  subject.  I  have 
not  heard  any.  It  has  been  universally  considered,  so  far  as  I  am 
informed,  that  the  powers  of  this  Commission  extend  so  far  and  so  far 
only  as  the  powers  of  the  two  Houses  of  Congress  extend. 

Mr.  CARPENTER.  In  other  words,  then,  it  is  agreed  on  all  hands 
that  the  powers  of  this  Commission  are  political  powers  ;  they  are  leg 
islative  powers  delegated  by  the  two  Houses  to  this  Commission. 
Your  honors  would  have  relieved  yourselves  from  the  infliction  of  the 
last  twenty  minutes  if  it  had  been  announced  tome  a  little  earlier. 

Mr.  Commissioner  HOAR.  I  do  not  understand  that  Judge  BRAD 
LEY  announces  the  proposition  you  have  stated  as  the  opinion  of  the 
Commission. 

Mr.  CARPENTER.  The  proposition  is  so  self-evident,  so  thor 
oughly  fortified  by  the  Constitution,  that  I  will  stop  with  the  mere 
suggestion  which  Judge  BRADLEY  has  made  on  the  subject.  It  is* 
perfectly  certain  that  this  tribunal  is  exercising  some  power,  or  else 
we  should  not  be  wasting  all  these  candles  hei'e  to-night,  the  prop 
erty  of  the  United  States.  If  its  power  is  not  judicial — and  that  is 
conceded— nobody  will  claim  that  it  is  executive.  Then  it  must  be 
legislative. 

Mr.  Commissioner  GARFIELD.  Do  you  hold  that  we  can  pass  a 
bill,  that  we  can  legislate  ? 

Mr.  CARPENTER.  No,  I  do  not  hold  that  one  of  the  regular  stand 
ing  committees  of  the  Senate  could  pass  a  bill;  but  I  do  say  that 
when  that  body  is  authorized  by  the  Senate  to  supboena  witnesses  be 
fore  it  and  determine  any  question  in  their  own  minds  and  report 
upon  it  to  the  Senate,  in  doing  so  they  are  exercising  a  power  of  the 
Senate  in  the  investigation  and  determination  of  the  question.  That 
is  what  I  maintain,  and,  therefore,  I  say  that  when  this  Commission 
sits  here  under  this  act  of  Congress,  exercising  political  power,  its 
power  is  precisely  what  and  its  duty  exactly  that  which  the  law  of 
its  creation  prescribes  ;  and  all  this  has  been  for  the  purpose  of  com 
ing  to  the  inquiry,  what  are  the  powers  vested  in  this  Commission  ; 
what  is  this  Commission  to  do? 

I  turn  now  to  the  text  of  this  bill.  The  papers  are  to  be  sent  to 
the  Commission,  "  which  shall  proceed  to  consider  the  same,  with  the 
same  powers,  if  any,  now  possessed  for  that  purpose  by  the  two  Houses 
acting  separately  or  together,  and  by  a  majority  of  votes  decide 
whether  any  and  what  votes  from  such  State  are  the  votes  provided 
for  by  the  Constitution  of  the  United  States,  and  how  many  and 
what  persons  were  dull/  appointed  electors  in  such  State."  That  is  the 
duty  conferred  upon  this  tribunal ;  not  to  ascertain  what  at  first  view 
appears  to  be  the  case,  but  who  have  been  "  duly  appointed."  That 
is  precisely  the  jurisdiction  which  is  conferred  on  all  courts  in  trying 
a  writ  of  quo  warranto.  I  concede  that  you  are  not  trying  a  quo  war- 
ranto  ;  I  concede  that  your  decision  will  not  bind  either  party  who 
may  be  defeated  by  your  determination  from  maintaining  his  quo 
warranto.  Nevertheless,  considering  the  public  necessities,  consider 
ing  the  evil  to  spring  from  a  further  contest  over  this  presidential 
question,  Congress  has  seen  fit  to  order  this  Commission  to  investi 
gate  and  decide — which  means  report,  for  there  can  be  no  decision 
in  the  judicial  sense — but  you  must  form  a  judgment  and  report  that 
opinion  to  the  Houses  who  were  "duly  appointed  electors"  for  the 
State  of  Louisiana,  and  to  do  that  you  are  clothed  with  all  the  pow- 


74 


ELECTORAL  COMMISSION. 


crs  which  the  two  Houses  possess.  If  you  cannot  go  the  bottom  of 
this  question  it  is  bottomless,  and  no  power  exists  in  this  Govern 
ment  of  ours  to  prevent  the  consummation  of  the  greatest  fraud  in 
all  our  history. 

Let  me  speak  for  a  moment  of  this  quo  warranto  business,  because 
I  imagine,  as  far  as  a  private  citizen  may  speculate  about  the  inten 
tions  of  a  member  of  Congress,  that  it  was  well  understood  by  Con 
gress  that  this  question  could  not  be  shut  out  from  an  investigation 
somewhere,  which  would  go  to  the  merits  of  the  question.  The  people 
of  this  country  would  be  satisfied  with  any  decision  this  tribunal 
should  render  based  upon  the  broad  merits  and  testimony  of  the  case  ; 
the  candidates  would  acquiesce  in  it;  but  the  people  would  not  be 
satisfied  and  no  candidate  would  acquiesce  in  the  decision  of  this  or 
any  other  tribunal  which  is  based  upon  mere  technicalities  and  well- 
known  false  certificates. 

The  power  of  the  judicial  courts  to  try  this  question  is  undoubted 
in  my  opinion.  Anciently  the  information  in  the  nature  of  quo  rvar- 
ranto  was  regarded  as  a  criminal  proceeding,  and  as  far  back  in  English 
history  as  the  second  of  Dnrnnford  and  East's  reports  the  courts  held 
that  for  all  practical  purposes  a  proceeding  in  the  nature  of  quo  war 
ranto  was  a  civil  proceeding  and  fell  within  the  classification  of  civil 
suits  as  to  amendments  and  all  that  sort  of  thing.  In  the  State  Bank 
vs.  The  State,  IBlackford's  Indiana  Reports'  272,  the  court  held  the 
same  doctrine.  The  same  thing  was  held  in  the  State  of  Florida  vs. 
Gleason,  Florida  Reports'  109;  Brison  vs.  Lingo,  2o  Mo.,  49o,  and  also 
in  State  vs.  Kupf  urle,  44  Mo.,  154.  In  Ensmiuger  -vs.  Peo,  in  47  Illinois, 
the  court  say  "  a  proceeding  by  quo  warranto  is  not  a  criminal  proceed 
ing."  That  was  an  application  for  change  of  venue  under  a  statute 
applicable  to  criminal  cases.  The  court  held  it  did  not  apply  to  that 
case.  So  in  Commonwealth  rs.  Browne,  1  Sergeant  and  Rawle,  382, 
it  was  held  that  "  an  information  in  the  nature  of  a  quo  warranto,  al 
though  a  criminal  proceeding  in  form,  is  iu  substance  but  a  civil  one, 
and  is,  therefore,  within  the  provision  of  the  tenth  article  of  the 
constitution  of  Pennsylvania,"  excluding,  I  believe,  criminal  juris 
diction  from  certain  courts. 

The  State  ex  rcl.  Bashford  vs.  Barstow,  4  Wisconsin,  567,  was  a 
case  where  a  candidate  for  governor  had  received  a  certificate  from 
a  board  of  canvassers,  had  gone  into  office,  been  recognized  by  the 
Legislature,  had  signed  bills  and  granted  pardons  for  months  ;  but 
the  information  was  filed  and  the  case  proceeded  awhile,  and  then 
the  attorney-general,  who  was  of  the  same  political  faith  with  the 
governor  who  was  iu,  came  into  court  and  entered  a  formal  discon 
tinuance  of  the  case  on  the  part  of  the  State,  claiming  that  it  was 
a  criminal  proceeding  and  that  he  could  control  it  as  attorney-gen 
eral.  The  court  disregarded  his  discontinuance,  proceeded  to  final 
judgment,  turned  the  governor  out  with  the  canvassing  board's  cer 
tificate  in  his  pocket,  put  his  rival  into  office,  and  he  held  it  until  the 
expiration  of  the  two  years. 

The  Constitution  of  the  United  States  declares  that  the  judicial 
power  of  the  United  States  shall  extend  "to  all  cases  arising  under 
this  Constitution,  the  laws  of  the  United  States,  and  treaties  made 
under  their  authority."  Now  if  Mr.  Tilden  is  counted  out,  and  Mr. 
Hayes  counted  in,  or  vice  versa,  and  a  controversy  arises  between  them 
as  to  which  is  entitled  to  exercise  the  office  of  President,  no  man 
would  say  that  was  not  a  case  arising  under  the  Constitution  and  laws 
of  the  United  States.  Let  us  see  whether  any  court  has  jurisdiction 
to  try  it.  By  the  act  of  Congress  of  March  3,  1875,  (18  Statutes  at 
Large,)  it  is  provided  as  follows: 

That  the  circuit  courts  of  the  United  States  shall  have  original  cognizance  con 
current  with  the  courts  of  the  several  States,  if  all  suits  of  a  civil  nature  at  com 
mon  law  or  in  equity,  where  the  matter  in  dispute  exceeds,  exclusive  of  costs,  the 
sum  or  value  of  foOO,  and  arising  under  the  Constitution  or  laws  of  the  United 
States,  or  treaties  made,  or  which  shall  he  made  under  their  authority,  &c. 

Conferring  upon  the  jurisdiction  the  full  limit,  the  broad  stream  of 
Federal  judicial  power,  with  1  think  but  three  exceptions;  one  with 
regard  to  contracts  which  have  been  assigned  :  one  that  the  United 
States  cannot  be  sued;  and  the  other  that  the  suit  must  involve  $500. 
With  these  three  exceptions  all  the  judicial  power  of  the  Constitu 
tion  has  been  exhausted  by  this  act,  and  was  intended  to  be,  and  was 
conferred  upon  and  to-day  is  possessed  by  the  circuit  courts  of  the 
United  States.  ^ 

It  being  well  known  to  Congress  and  everybody  else  that,  if  a 
technical  decision  were  made  here,  if  any  shuffling  and  evasion  were 
indulged  iu,  if  false  certificates  were  held  up  to  exclude  the  true  no 
body  would  bo  satisfied  and  this  question  would  end  iu  a  judicial 
controversy  to  vex  the  land  for  mouths  and  perhaps  for  years,  Con 
gress  has  seen  fit  to  raise  a  Commission  and  impose  upon  it  the  duty 
not  of  ascertaining  who  ought  to  be  counted  in,  not  of  ascertaining 
who  has  the  prima  fade  ease,  but  of  ascertaining  who  "  were  duly 
appointed  electors  "  in  the  State  of  Louisiana.  Can  any  lawyer— I 
will  take  that  back— can  any  judge  say  that,  under  a'  law  which 
c  otheshim  with  the  power  to  inquire  what  person  was  duly  appointed 
elector  of  that  State,  he  must  stop  with  the  prima  fade  case  •  or  would 
a  court  of  law  say  "this  statute  has  laid  upon  this  Commission  pre 
cisely  the  duty  which  the  common  law  lays  upon  a  judicial  court  in 
a  case  by  quo  warranto  ?"  What  do  they  say  about 'that?  I  cannot 
read  it,  both  for  want  of  time  and  want  of  light,  but  in  the  case  of 
Iho  People  rs.  Vail,  20  Wendell,  12,  cited  on  my  brief  in  the  canvass 
nl  a  town  after  the  canvassers  had  made  out  their  canvass  and  were 
making  up  their  statement,  by  mere  accident  they  stated  how  many 


votes  were  cast  for  a  certain  office  for  which  there  two  candidates, 
but  omitted  to  state  how  many  were  cast  for  each  candidate.  That 
went  up  to  the  county  cauA'assiug  board  and  the  votes  were  canvassed 
there  according  to  the  returns  coming  from  the  town,  and,  of  course, 
omitted  that  statement.  It  turned  out  that  if  that  canvass  below 
had  been  returned  the  other  man  would  have  been  elected,  and  he 
brought  his  quo  warranto.  Judge  Bronson,  delivering  the  opinion  of 
the  court,  said  they  must  go  back  to  the  county  canvassers'  certifi 
cate,  and,  if  that  was  alleged  to  be  untrue,  they  must  go  back  of  that, 
they  must  go  back  to  the  town  canvass ;  and  there  they  ascertained 
the"  mistake.  Ho  proceeded  to  exonerate  those  town  officers  from 
any  intentional  wrong  ;  but  he  said : 

If  we  cannot  correct  this  when  it  is  a  mere  mistake,  we  cannot  interfere  if  those 
men  had  acted  fraudulently  and  had  intentionally  and  willfully  excluded  a  man 
from  the  cilice  to  which  he  was  elected. 

Reference  to  the  case  of  The  People  7>«.  Ferguson,  in  4  Co  wen  and  a 
long  line  of  cases,  to  show  that  when  a  court  is  called  upon  to  ascer 
tain  the  effect  of  an  election  it  goes  through  certificates,  commissions 
of  office,  and  every  other  mere  evidence  of  the  office  upon  that  great 
and  universally  conceded  principle  that  the  title  to  an  office  is  ac 
quired  by  the  election  and  that  the  certificate  of  the  canvassing  boa'  d 
or  the  commission  issued  by  the  governor  does  not  confer  the  office; 
it  only  gives  and  makes  the  evideuce  of  a  fact  that  the  office  was  con 
ferred  by  the  election. 

Now,  then,  I  say,  knowing  that  this  matter  could  be  raised  in  the 
civil  courts,  and  seeing  and  far-seeing  the  evil  consequences  of  it  to 
this  country,  Congress  has  raised  this  Commission  and  laid  upon  it 
the  clear,  unambiguous  duty  to  go  to  the  bottom  of  this  thing.  O, 
say  our  friends  on  the  other  side,  it  will  take  too  long;  wo  are  in  too 
much  of  a  hurry.  Very  well;  I  submit  with  perfect  respect  that  if 
this  tribunal  finds  itself  charged  with  the  performance  of  a  duty 
that  it  has  not  time  to  perform,  that  would  excuse  it  for  dissolving 
and  going  home,  but  it  would  not  excuse  it  for  deciding  erroneously 
because  it  has  not  had  time  to  examine  correctly  nor  for  deciding 
something  because  it  has  not  the  time  to  ascertain  what  it  ought  to 
decide. 

I  come  now  to  another  question  which  I  think  is  one  of  considera 
ble  difficulty,  and  that  is  to  ascertain  what  was  the  statute  law  of 
Louisiana  on  the  7th  day  of  November  last.  It  very  rarely  happens 
that  in  investigating  a  case  you  are  unable  to  find  out  what  the  statute 
is.  There  may  be  differences  about  the  meaning  of  a  statute,  but  you 
can  generally  ascertain  what  the  statute  was  that  was  in  force;  but 
anything  that  comes  from  Louisiana  is  full  of  difficulty  to  a  lawyer; 
that  is,  everything  that  has  come  up  from  it  except  my  honorable 
friend  on  the  left  here,  [Mr.  Campbell.] 

At  the  session  of  1870  the  Legislature  passed  a  short  act  providing 
that  the  acts  and  resolutions  of  the  Legislature  at  that  session  should 
prevail  over  the  revised  statutes  which  were  to  be  passed  during  the 
session.  The  question  is  whether  a  Legislature  can  pass  a  law  to-day 
saying  "  this  law  shall  override  and  repeal  all  the  laws  hereafter 
passed  at  this  session  or  at  any  subsequent  session."  1  suppose  not. 
I  concede  here  that  the  intention  of  these  fellows  was  .to  make  that 
election  law  of  1870  override  the  revision.  I  have  no  doubt  that  they 
intended  that;  but  the  question  is  whether  they  have  expressed  that 
intention  in  such  legal  form  that  any  court  can  give  effect  to  it.  This 
act  was  passed  in  February,  providing  that  the  acts  of  that  session 
should  override  and  repeal  the  revision.  Afterward  on  the  14th  of 
March  they  passed  the  revision  and  provided  that  it  should  take  effect 
the  1st  day  of  April  thereafter.  Then  on  the  16th  of  March  they 
passed  the  general  election  law  which  is  called  "the  election  law  of 
1870"  in  all  these  discussions. 

When  this  matter  was  up  in  the  Senate  three  or  four  years  ago, 
and  discussed  and  debated  and  investigated  for  weeks,  I  think  no 
Senator  ever  heard  anything  about  the  revision  of  the  laws  of  Lou 
isiana.  The  report  which  was  made  by  the  committee  makes  no 
mention  of  it.  The  debate  which  sprang  up  on  that  report,  and 
which  was  rather  protracted  and  somewhat  spicy,  it  seems  made  no 
reference  whatever  to  the  revision ;  and  I  think  no  Senator  knew  that 
there  had  been  a  revision.  The  whole  investigation,  all  the  speeches, 
the  conclusion,  and  everything  else  proceeded  on  the  assumption  that 
the  act  of  1870  was  the  only  law  in  force  on  the  subject ;  but  this 
statute  of  revision  which  passed  was  like  all  revisions  as  one  bill, 
and  was  to  take  effect  on  the  1st  day  of  April. 

The  PRESIDENT.     When  was  it  passed  ? 

Mr.  CARPENTER.  It  was  passed  on  the  14th  of  March,  to  take  effect 
on  the  1st  of  April.  Then  on  the  16th  of  March,  two  days  later,  they 
passed  the  general  election  law  of  1870.  Now  the  question  is,  on  the 
1st  day  of  April,  when  the  revised  statutes  took  effect,  did  they  repeal 
all  anterior  conflicting  statutes,  or  was  this  act  of  1870  saved  from 
repeal  by  the  act  of  the  28th  of  February  '! 

The  principle  as  laid  down  in  all  the  books  I  can  find  on  the  sub 
ject  is,  that  when  a  law  is  passed  to  take  effect  on  a  future  day,  its 
effect  is  precisely  as  it  would  have  been  if  the  act  had  been  passed 
on  the  day  when  it  is  to  take  effect.  It  was  so  held  in  the  cases  of 
Ricers.Ruddimann,  10 Michigan,  125;  Peoplers.  Johnson, 6 California, 
673 ;  Arthur  vs.  Franklin,  16  Ohio,  New  Series,  193;  Lyner  vs.  State,  3 
Indiana,  490  ;  Supervisors  rs.  Keady,  34  Illinois,  293 ;  Charlossrs.  Lain- 
bersou,  1  Clarke,  (Iowa,)  435;  and  Price  rs.  Hopkins,  13  Michigan, 
318.  It  is  the  rule  also  laid  down  so  far  as  I  know  in  all  the  element 
ary  writers,  that  when  a  statute  takes  effect  on  a  future  day,  it  has 


ELECTORAL  COMMISSION. 


75 


all  the  effect  and  advantages  that  it  would  have  if  it  had  been  passed 
on  that  future  day.  Now  then,  suppose  on  the  28th  of  February  the 
election  law  of  1870  had  been  passed  just  as  it  was  on  the  IGth  of 
March,  but  on  the  1st  day  of  April  they  passed  the  revised  statutes; 
there  is  no  doubt  that  would  repeal  all  previous  conflict  ing  laws.  The 
questiou  and  the  only  question  on  that  subject  is,  whether  a  Legisla 
ture  can  obviate  the  result  by  providing  in  advance  that  that  shall 
not  be  the  rule.  If  it  can  do  that,  I  do  not  see  why  a  Legislature 
could  not  provide  in  an  act  "  this  act  shall  override  and  repeal  any 
subsequent  act  conflicting  with  it,"  which  would  be  absurd  of  course. 

Mr.  Commissioner  HOAR.  Mr.  Carpenter,  do  I  understand  you  to 
claim  that,  if  an  act  is  passed  on  the  1st  of  April  to  take  effect  on  the 
1st  of  May,  and  on  the  15th  of  April  an  act  is  passed  repealing  that 
altogether,  still  on  the  1st  of  May  the  repealing  act  itself  would  be 
repealed  ? 

Mr.  CARPENTER.  I  do  not  claim  so;  I  do  not  think  so.  This  is 
not  that  case  at  all ;  this  is  a  repeal  by  implication,  a  repeal  by  con 
tradictory  provisions.  I  will  spend  no  more  time  upon  that,  because 
I  desire  to  say  that  this  was  the  only  point  in  this  case  that  I  do  not 
care  a  fig  which  way  you  decide  it.  I  would  just  as  soon  that  you 
decided  it  one  way  as  the  other.  If  it  is  decided  one  way  one  class 
of  consequences  will  follow;  if  it  is  decided  the  other  way  a  differ 
ent  class  of  consequences  follow;  but  both  of  them  are  fatal  to  the 
case  made  by  certificate  No.  1,  as  I  will  show,  I  think. 

Let  me  in  the  first  place,  however,  proceed  upon  the  theory  to  which 
misled  no  doubt  by  these  decisions,  I  incline,  that  the  statute  on  the 
list  day  of  April  did  repeal  the  election  law  of  1870  ;  and  then  I 
will  go  back  ami  proceed  upon  the  theory  that  it  did  not,  and  I  shall 
como  out  just  as  satisfactorily  on  one  theory  as  on  the  other.  It  is  a 
remarkable  case  that  presents  such  a  fortunate  condition  of  things ; 
but  this  happens  to  bo  so. 

Mr.  Commissioner  THURMAN.  Was  the  act  of  1868  repealed  by 
the  act  of  1870  f 

Mr.  CARPENTER.  Undoubtedly.  The  election  law  of  1870,  if 
that  took  effect,  repealed  the  act  of  16G8. 

Mr.  Commissioner  BRADLEY.  Is  there  anything  in  the  revised 
statutes  of  1870  on  this  subject  that  was  not  taken  from  the  act  of 
1808? 

Mr.  CARPENTER.     No,  sir  ;  it  just  re-enacts  it. 

Mr.  Commissioner  BRADLEY.  Then  the  question  of  Judge  Tmitt- 
MAX  amounts  also  to  the  question  whether  the  revised  statutes  took 
effect. 

Mr.  CARPENTER.  Certainly  ;  it  all  depends  on  that  question. 
That  is  the  importance  of  it.  The  act  of  1870,  if  that  was  the  law 
after  the  revision  took  effect  on  the  1st  of  April,  unquestionably  re 
pealed  the  revision  as  to  this  subject,  because  the  revision  embodied 
precisely  the  act  of  1868. 

Mr.  Commissioner  BRADLEY.     There  is  no  express  repeal  of  either. 

Mr.  CARPENTER.  No,  sir;  the  repeal  is  only  by  conflicting  laws 
on  the  same  subject.  Now  let  us  assume  for  a  moment  that  the  act  of 
1£68  was  in  force.  That  act  was  a  complete  regulation  of  the  whole 
subject  of  electing  presidential  electors.  It  provided  how  they  should 
be  elected,  that  is,  at  a  popular  election ;  it  provided  who  should  be 
voters  at  that  election  ;  it  provided  who  should  be  elected,  two  at 
large  and  the  others  elected  from  the  different  congressional  districts 
of  the  State  ;  it  provided  the  entire  machinery  of  the  election,  and 
then  provided — and  the  provision  is  to  be  found  located  in  section 
2826  of  the  revision  identical  in  language  : 

Immediately  after  the  receipt  of  a  return  from  each  parish,  or  on  the  fourth 
Monday  of  November,  if  the  returns  should  not  sooner  arrive,  the  governor,  in  the 
presence  of  the  secretary  of  state,  the  attorney-general,  a  district  judge  of  the  dis 
trict  in  which  the  seat  of  government  may  be  established,  or  any  two  of  them,  shall 
examine  the  returns,  and  ascertain  therefrom,  the  persons  who  have  been  duly 
elected  electors. 

SEC.  2827.  One  of  the  returns  from  each  parish,  indorsed  by  the  governor,  shall 
be  placed  on  file  and  preserved  among  the  archives  of  the  secretary  of  state. 

SEC.  2828.  The  names  of  the  persons  elected,  together  with  a  copy  of  the  returns 
from  the  several  parishes,  shall  forthwith  be  publi.-hed  in  the  newspaper  or  papers 
in  which  the  laws  of  the  State  may  be  directed  to  bo  published." 

That  law  of  1868  contains  no  provision  about  a  canvassing  board 
except  what  I  have  read.  The  governor  must  open  the  returns-from 
each  parish  and  in  the  presence  named  they  must  then  be  counted, 
and  the  returns  from  the  parishes  must  then  be  deposited  in  the  office 
of  the  secretary  of  state  to  remain  a  permanent  record.  No  one  will 
pretend  that  under  that  act  there  was  any  jurisdiction  or  discretion 
about  excluding  any  votes.  That  never  has  been  pretended  and  it 
will  not  be  now.  If  the  act  of  1868  was  in  force  at  the  last  election, 
it  is  not  pretended  that  there  has  ever  been  any  canvass  of  the  votes 
of  that  election  according  to  that  statute.  They  did  not  attempt  it. 
They  acted  upon  the  theory  that  the  other  law  was  in  force.  So  that 
if  your  honors  say  that  the  act  of  1868  was  in  force  because  embodied 
in  the  revision  taking  effect  April  1,  and  therefore  repealed  the  former 
act  of  the  16th  of  March,  1870,  this  case  to-night  is  precisely  in  the 
attitude  in  which.it  was  four  years  ago. 

Four  years  ago  there  came  up  from  Louisiana  a  regular  certificate 
of  its  governor  that  so  many  persons  had  been  duly  appointed  electors 
for  the  State ;  but  the  Senate,  acting  upon  the  theory  which  I  main 
tain  is  the  true  and  proper  one,  raised  a  committee  in  advance  to  ex 
amine  into  the  facts  about  the  election  of  that  college.  They  sent 
for  witnesses,  brought  them  here  in  large  numbers,  made  an  examina 
tion,  and  the  Committee  on  Privileges  and  Elections  made  a  report 


upon  the  subject  not  expressing  an  opinion  as  to  whether  they  should 
or  should  not  be  excluded,  but  stating  the  fai-ts  that  there  had  never 
been  a  canvass  of  those  votes  by  any  person  authorized  to  canvass 
them,  and  submitting  the  questiou  to  the  two  Houses  whether  the 
vote  of  that  State  should  be  counted  or  not.  The  two  Houses,  acting 
separately,  each  House  for  itself,  decided  that  they  should  be  excluded. 

Now,  I  want  to  ask  this  Commission  whether  it  will  to-day  decide 
that  Congress  violated  its  constitutional  duty  or  usurped  power  in 
holding  that  the  vote  should  not  be  counted  four  years  ago.  That  the 
two  Houses  went  back  of  the  certificate  is  certain.  That  they  went 
back  and  condemned  the  vote  on  account  of  infirmities  in  the  elec 
tion  is  certain.  If  they  could  do  it  because  the  votes  had  not  been 
canvassed,  can  they  not  do  it  because  they  had  been  falsely  can 
vassed  ?  If  they  could  do  it  for  neglect,  could  they  not  do  it  for 
fraud  ?  And  will  this  tribunal  here  and  now  declare  that  that  action 
of  both  Houses  of  Congress  in  excluding  that  vote  was  an  outrage 
upon  the  people  of  Louisiana  ?  That  must  be  the  conclusion,  if  you 
are  to  hold  that  you  cannot  go  back  of  the  governor's  certificate.  The 
two  Houses  did  go  back  of  it ;  and  they  have  clothed  you  with  all 
the  power  that  they  then  possessed  or  now  possess  or  ever  will  possess 
under  the  present  Constitution. 

Mr.  Commissioner  THURMAN.  I  understand  you  to  say  that  the 
provision  of  the  revised  statutes  is  precisely  the  same  as  that  of  the 
act  of  1868. 

Mr.  CARPENTER.  Identically ;  so  that  the  act  of  1868,  which  is 
clearly  repealed  by  the  election  law  of  1870,  if  that  is  in  force,  was 
continued  by  virtue  of  re-enactment  in  the  revision.  If  the  revision 
is  to  be  treated  as  an  act  passed  on  the  day  when  it  took  effect,  it  re 
pealed  the  act  of  March  16,  1870. 

Mr.  Commissioner  BRADLEY.  When  the  revision  was  made  there 
was  no  other  statute  but  the  act  of  1868  in  force  and  the  revisers  just 
took  that  statute  and  put  it  into  the  revision. 

Mr.  CARPENTER.     Certainly ;  it  is  just  copied  word  for  word. 

Let  me  present  the  view  now  of  assuming  that  it  was  not  repealed. 
Then  the  act  of  1868  continued  in  force  down  to  the  last  election,  un 
less  it  was  repealed  by  the  election  law  of  1872.  The  repealing  clauso 
of  the  act  of  1872  is  very  broad,  broad  enough  perhaps  if  the  intention 
of  the  Legislature  in  other  parts  of  the  act  was  not  manifest  against 
it  to  hold  that  it  did  repeal  the  former  act.  But  that  it  was  not  tho 
intention  to  do  so  is  manifest,  I  think,  from  various  consideraions 
to  which  I  wish  to  call  attention. 

Mr.  Commissioner  THURMAN.  Am  I  to  understand  you  to  say 
that  if  the  act  of  1870  was  in  force,  was  not  repealed  by  the  revision, 
then  the  act  of  1868  remains  in  force? 

Mr.  CARPENTER.  No,  exactly  the  reverse.  If  the  act  of  1870 
continued  in  force  subsequent  to  April  1,  1870,  it  repealed  the  act  of 
1868.  The  act  of  1870  did  provide  for  tho  holding  of  the  election  for 
electors  with  the  general  election,  and  that  it  should  bo  canvassed  and 
returned  as  that  election  was.  So,  of  course,  it  repealed  the  act  of 
1868.  When  they  came  afterward  to  repeal  the  act  of  1870,  that 
might  raise  a  question  elsewhere,  in  another  State,  whether  repealing 
the  repealing  law  revived  the  original  law,  but  in  that  State  that 
effect  is  forbidden  by  the  State  constitution  ;  so  that  the  subsequent 
repeal  of  the  act  of  1870  would  not  revive  the  act  of  1868  and  the 
act  of  1868  was  lost  entirely  unless  it  is  continued  in  force  as  a  part 
of  the  revision  by  virtue  of  the  principle  which  I  have  stated. 

If  the  Revised  Statutes  continued  in  force,  then  the  provisions  of 
tho  act  of  1868  were  in  force,  unless  they  were  repealed  by  the  sub 
sequent  act  of  1872.  I  should  say  here,  before  coming  to  consider  the 
provisions  of  that  act  particularly,  that  in  the  statutes  of  that  State 
the  two  subjects,  although  they  are  both  elections,  have  been,  until 
you  come  to  the  act  of  1872,  and  I  think  are  there,  treated  as  different 
subjects.  In  this  revision,  on  certain  pages  you  find  the  general  elec 
tion  law  of  the  State.  Forty  pages  away  from  it  and  under  another 
title  you  find  tke  provisions  of  the  act  of  1868,  showing  the  intention 
of  the  men  who  revised  the  statutes  to  be  to  treat  them  as  independ 
ent  subjects.  So  at  the  time  of  the  passage  of  the  act  of  1868,  there 
was  a  general  election  law  of  the  State  passed  and  eleven  days  after 
that  the  act  of  1868  regulating  the  election  of  presidential  electors 
was  passed,  and  they  were  both  published  in  the  same  volume.  Thua 
they  have  been  treated  throughout  as  different  subjects.  The  act  of 
1870  did  contain  provisions  in  regard  to  the  election  of  electors ;  the 
act  of  1872  does  not  except  to  fix  the  day  by  declaring  that  the  elec 
tion  of  electors  should  be  on  the  day  fixed  by  the  act  of  Congress. 
That  was  a  thing  wholly  unnecessary  and  wholly  useless  to  do  by  tho 
Legislature,  Congress,  not  the  States,  having  tho  power  to  fix  the  timo 
for  the  appointment  of  electors.  That  the  election  law  of  1872  was 
intended  only  as  a  regulation  of  the  election  of  State  officers  and  the 
repeal  of  former  laws  upon  that  subject,  is  manifest  from  the  pro 
visions  of  the  act  itself.  Section  1  is : 

That  all  elections  for  State,  parish,  and  judicial  officers,  members  of  the  General 
Assembly,  and  for  members  of  Congress,  shall  be  held  on  the  first  Monday  in  No 
vember;  and  said  elections  shall  be  styled  the  general  elections.  They  shall  be 
held  in  the  manner  and  form  and  subject  to  the  regulations  hereinafter  prescribed, 
and  in  no  other. 

I  maintain — and  here  I  believe  I  cross  the  path  of  some  other  coun 
sel  far  more  distinguished— that  electors  are  not  State  officers.  They 
are  therefore  not  included  in  this  general  provision  of  the  act  of  1872. 
To  determine  whether  an  officer,  as  between  the  Union  and  a  State, 
is  a  Federal  or  a  State  officer,  it  must  be  ascertained  whether  the 


76 


ELECTORAL  COMMISSION. 


office  which  he  fills  is  a  Federal  or  State  office.  If  the  office  ho  created 
under  the  Constitution  and  laws  of  the  United  States  only,  then  it  is 
a  Federal  office.  That  is  clear.  If  it  be  created  by  the  laws  of  a 
State,  it  is  a  State  office.  Now,  the  Constitution  of  the  United  States 
creates  the  office  of  elector.  No  State  can  provide  anything  about  it. 
No  State  can  change  any  provision  concerning  it.  The  Constitution 
of  the  United  States  says,  however,  that  the  electors  shall  be  ap 
pointed  by  the  States  in  such  a  manner  as  their  Legislatures  may  di 
rect.  That  simply  gives  the  State  one  power  in  regard  to  the  office  ; 
that  is,  to  fill  it.  Suppose  the  Constitution  were  to  be  amended  to 
morrow  so  as  to  provide  in  regard  to  the  Supreme  Court  of  the  United 
States  that  in  addition  to  the  present  number  of  its  members  each 
State  might  appoint  an  additional  judge  of  the  Supreme  Court  of  the 
United  States,  and  they  should  do  so,  and  those  judges  should  come 
here  and  take  the  places  alongside  of  those  now  occupied  by  this  tri 
bunal,  would  any  man  think  that  a  judge  appointed  by  a  State  was 
any  less  a  Federal  officer  than  the  judges  appointed  by  the  President 
of  the  United  States  ?  If  the  Constitution  of  the  United  States 
creates  the  office  and  specially  provides  for  its  being  filled  by  a  State, 
whose  office  is  it  ?  It  is  a  Federal  office.  Must  not  the  officer  have 
the  same  character  that  the  office  he  fills  has  ?  It  seems  to  me  that 
there  can  be  no  doubt  that  these  electors  should  be  treated  as  Federal 
officers  from  first  to  last. 

Mr.  Commissioner  EDMUNDS.  The  Constitution  says  that  the 
President  shall  commission  all  officers  of  the  United  States.  You 
would  not  contend,  I  suppose,  that  an  elector  in  order  to  exercise  the 
functions  of  his  office  should  bo  commissioned  by  the  President? 

Mr.  CARPENTER.  The  Constitution,  as  I  recollect,  saya  he  shall 
commission  all  officers  except  otherwise  provided. 

Mr.  Commissioner  EDMUNDS.     I  do  not  remember  that  phrase. 

Mr.  CANPENTER.  I  think  it  is  there ;  if  it  is  not  it  ought  to  be. 
At  all  events  I  do  not  undertake  to  decide  that  question  now.  The 
mere  fact  that  the  President  had  not  issued  a  commission  certainly 
could  not  determine  that  he  ought  not  to  hare  issued  it,  nor  could  it 
determine  that  these  are  not  Federal  officers,  because  a  judge  of  this 
court  might  go  on  the  bench  and  sit  here  twenty  years  and  not  have 
a  commission  ;  and  yet  he  would  be  an  excellent  de  facto  judge. 

Mr.  Commissioner  ABBOTT.  A  great  many  officers  under  the  Fed 
eral  Constitution  have  no  commission  from  the  President. 

Mr.  CARPENTER.  I  think  the  only  provision  for  the  President's 
commissioning  an  officer  is  in  the  case  of  a  vacancy  happening  during 
the  recess  of  the  Senate,  when  he  issues  a  commission  to  expire  at  the 
time  provided  in  the  Constitution.  He  has  authority  "  by  and  with 
the  advice  and  consent  of  the  Senate  to  make  treaties." 

Mr.  Commissioner  GARFIELD.  Mr.  Carpenter,  please  read  the  last 
clause  of  section  3  of  article  2. 

Mr.  CARPENTER,  It  does  provide  that  he  "  shall  commission  all 
the  officers  of  the  United  States."  I  was  not  aware  of  that  provision, 
and  know  as  a  matter  of  fact  that  ho  does  not  do  it.  There  is  an  act 
of  Congress  providing  that  the  officers  of  the  internal  revenue  shall 
be  commissioned  by  the  Secretary  of  the  Treasury,  and  that  is  the 
practice  to-day. 

I  wish  now  to  present  the  view  of  the  case  and  what  I  think  are 
the  results,  if  wo  hold  that  the  act  of  18G8  embodied  in  tho  revision 
was  repealed  by  the  former  act  of  March  16,  1870. 

Mr.  Commissioner  HUNTON.  Mr.  Carpenter,  let  me  call  your  at 
tention  to  this  clause : 

He  shall  have  power,  by  and  with  the  advice  and  consent  of  the  Senate,  to  make 
treaties,  provided  two-thirds  of  the  Senators  present  concur;  and  he  shall  nom- 
iuate,  and,  by  and  with  tho  advice  and  consent  of  the  Senate,  shall  appoint  eiubas- 
Bsdora,  other  public  ministers  and  consuls,  judges  of  tho  Supremo  Court,  and  all 
other  officers  of  tho  United  States,  whoso  appointments  are  not  heroin  otherwise  pro 
vided  for,  &c. 

That^is  as  you  stated  at  first,  as  I  understand. 

Mr.  EVARTS.     That  is  appointment,  not  commission. 

Mr.  CARPENTER.  Upon  the  question  whether  the  act  of  1872 
was  intended  to  repeal  the  act  of  1868,  I  want  to  call  attention  to 
what  was  referred  to  by  Mr.  Jenks  this  morning.  Under  the  act  of 
1872,  if  that  is  the  only  act  in  force,  there  is  no  provision  whatever  for 
filling  any  vacancy  in  the  electoral  college  except  by  a  popular  election. 

Mr.  Commissioner  HOAR.  Is  there  any  provision  for  electing  elect 
ors  at  all  except  that  sentence  which  simply  speaks  of  tho  time  ? 

Mr.  CARPENTER.    That  is  all. 

Mr.  Commissioner  HOAR.    No  provision  for  the  manner  of  election  ? 

Mr.  CARPENTER  None  whatever,  nor  for  a  canvass  nor  for  a  re 
turn,  nor  whether  the  electors  shall  be  elected  on  one  ticket  or  from  the 
congressional  districts,  nor  anything  on  the  subject.  So  then  if  the 
act  of  1868  is  not  in  force,  there  is  no  provision  whatever  iu  force  and 
was  not  on  the  7th  day  of  Novomberlast. 

Mr.  Commissioner  THURMAN.  Did  the  act  of  1872  repeal  the  act 
of  1870? 

Mr.  CARPENTER.  Certainly,  if  it  was  in  force  down  to  that  time. 
If  it  was  not  repealed  by  the  revision  of  the  1st  of  April,  1870,  it  cer 
tainly  was  repealed  by  the  act  of  1872  in  the  broadest  and  most  un 
equivocal  terms;  and  besides  all  that  tho  provisions  of  the  act  em 
bodied  the  same  subject ;  they  were  both  election  statutes ;  and  the 
repealing  clause  of  the  act  of  1872  repeals  all  other  election  laws. 

Mr.  Commissioner  ABBOTT.  What  do  you  make  of  the  second  sec 
tion  of  the  act  of  1872  that  the  returning  'board  shall  be  tho  return 
ing  officers  for  a>ll  elections  iu  the  State  ? 


Mr.  CARPENTER.  I  am  aware  of  that  section  and  I  want  to  put 
this  answer  to  it:  That  provision  I  understand  to  be  limited;  the 
general  language  employed  there  is  limited  by  the  whole  tenor  of  tho 
act,  which  on  its  face  shows  I  think  that  it  was  intended  to  apply 
to  nothing  but  the  election  of  State  officers.  It  is  well  settled  that 
where  the  intention  of  the  Legislature  is  manifest  by  tho  whole  act 
to  bo  a  certain  way,  that  will  enable  the  court  to  control  the  express 
language  of  other  provisions  which  would  conflict.  You  are  to  reach 
the  general  intentions  of  the  Legislature,  and  in  doing  so  courts  aro 
often  compelled  to  disregard  the  general  language  employed  in  par 
ticular  sections. 

But  another  thing  follows,  if  your  honors  take  that  view  of  the 
case,  and  hold  that  these  officers  are  returning  officers  for  all  elec 
tions.  Then  that  other  provision,  that  the  election  to  fill  all  vacan 
cies  shall  be  by  the  people,  certainly  includes  the  vacancy  which  has 
been  tilled  by  that  same  election,  does  it  not  ?  If  one  section  applies 
to  all  the  officers  elected  in  the  State,  including  electors,  then  cer 
tainly  the  provision  in  regard  to  filling  vacancies  of  all  officers  ap 
plies  equally  well,  and  strikes  out  votes  enough  from  this  electoral 
college  to  answer  our  purpose. 

This  is  a  remarkable  case,  your  honors.  There  are  a  great  many 
questions  in  it  very  important  and  very  difficult  to  solve ;  which  it 
does  not  make  any  difference  how  they  are  solved. 

Here  let  me  make  one  remark  in  regard  to  there  being  no  law  in 
force  regulating  the  subject  of  the  election  of  electors.  If  there  is 
not— and  this  court  must  take  judicial  notice  of  that  fact,  because 
judicial  notice  of  what  the  law  is  of  course  implies  judicial  notice  of 
what  it  is  not — if  there  was  no  provision  in  force,  it  cannot  be  main 
tained  for  a  moment  that  that  State  could  appoint  electors.  Each 
State  may  appoint  electors  to  a  number  equal  to  the  whole  number  of 
its  Senators  and  Representatives  in  such  manner  as  shall  be  directed 
or  prescribed  by  the  Legislature  of  the  State.  If  the  State  makes  no 
provision  or  having  made  one  repeals  it  and  makes  no  other,  then  it 
is  clear  that  there  can  be  no  appointment  in  the  manner  directed  by 
the  Legislature. 

Now  I  dismiss  that  whole  subject  and  do  not  care  a  particle  which 
way  you  decide  it  so  that  you  apply  the  logical  consequences  to  which 
ever  decision  you  reach.  If  the  law  of  1868  is  in  force  the  whole  col 
lege  goes  down,  for  there  is  no  pretense  of  any  canvass  under  it  what 
ever.  If  it  is  not  in  force,  then  there  is  no  law  for  filling  vacancies 
and  two  of  them  go  down,  and  in  a  case  like  this  two  are  just  as  good 
as  eight. 

I  come  next  to  another  point  in  the  case  which  I  regard  as  entirely 
conclusive  upon  all  the  action  of  this  returning  board  in  excluding 
votes.  When  the  Constitution  of  the  United  States  says  that  tho 
electors  shall  be  appointed  in  such  manner  as  the  State  Legislature 
shall  direct,  it  speaks  of  course  of  an  American  State,  a  State  of  this 
Union,  a  State  with  a  written  form  of  government  which  has  met  and 
constantly  enjoys  the  approbation  of  Congress  as  a  republican  form 
of  government,  with  tho  separation  of  its  powers,  legislative,  judicial, 
executive,  into  three  departments.  Congress  may  to-morrow  take 
up  the  constitution  of  Massachusetts  and  inspect  it,  and  finding  that 
it  is  not  republican,  re-organize  that  State;  so  that  its  silence  is  a 
constant  approbation  that  the  form  of  her  government  is  republican. 
When  the  Constitution  of  the  United  States  says  a  State  in  such  man 
ner  as  its  Legislature  shall  prescribe  shall  appoint  electors,  it  refers 
of  course  to  that  form  of  government  whose  Legislature  is  restricted 
by  its  own  constitution.  It  djjes  not  mean  some  Hottentot  commu 
nity.  It  means  one  of  our  States,  one  of  the  constitutional  States  ; 
and  the  Const itut  ion  knows  and  the  Federal  mind  always  knows  that 
an  act  of  a  State  Legislature  passed  in  violation  of  its  own  constitu 
tion  is  void.  So  iu  effect  the  Constitution  of  the  United  States  pro 
vides  that  each  State  shall  appoint  so  many  electors  in  such  manner 
as  shall  be  directed  by  the  Legislature  by  laws  passed  according  to 
its  constitution. 

So  I  maintain  that  if  the  "  manner"  prescribed  in  tho  State  of  Lou 
isiana  for  appointing  electors  is  in  violation  of  the  constitution  of 
that  State,  the  constitution  with  which  it  has  been  admitted  to  the 
Union  and  which  enjoys  to-day  the  approbation  of  Congress  as  a  re 
publican  State,  then  it  is  not  a  compliance  with  the  Constitution  of  the 
United  States,  and  our  Constitution  should  be  read  just  as  though 
the  words  were  there  that  the  Legislature  shall  prescribe  a  method 
in  conformity  with  their  own  Constitution. 

Mr.  Commissioner  EDMUNDS.  Would  that  be  true  as  to  the  elec 
tion 'bf  Senators? 

Mr.  CARPENTER.  It  would  not  be  true  perhaps  as  to  the  elec 
tion  of  Senators,  for  the  States  have  nothing  to  do  with  the  manner 
of  electing  Senators.  That  is  all  done  by  Federal  power.  Tho  Con 
stitution  of  the  United  States  says  the  Legislature  of  the  State  shall 
elect  Senators,  not  in  such  manner  as  they  shall  provide,  because 
then  they  might  send  them  to  a  returning  board.  There  is  no  such 
power,  and  therefore  the  cases  are  not  at  all  similar. 

Now,  I  claim  that,  if  I  can  show  that  this  election  law  is  clearly  iu 
violation  of  the  constitution  of  Louisiana,  it  is  equally  in  violation  of 
the  Constitution  of  the  United  States  upon  that  subject,  and  lam  now 
proceeding  to  treat  the  act  of  1872  as  though  it  did  apply  to  the  elec 
tion  of  ekctors. 

In  the  first  place,  the  act  creates  a  canvassing  board,  to  be  ap 
pointed  by  the  State  senate,  and  so  far  as  anybody  knows  they  hold 
through  their  natural  lives,  and  when  vacancies  'occur  they  have  a 


ELECTORAL   COMMISSION. 


77 


right  to  fill  them.  So  they  are  a  close  corporation.  They  are  a  cor 
poration  as  much  more  potent  than  the  people  of  that  State,  if  this 
law  is  constitutional,  as  the  Government  of  the  United  States  is  more 
potent  tbau  the  government  of  that  State.  Then  it  provides  the  duty 
of  these  canvassers,  "that  in  such  canvass  and  compilation" — I  can 
not  see  to  read  it  here  to-night,  hut  the  act  provides  that  the  board 
shall  proceed  to  canvass  and  compile  the  returns  made  by  the  com 
missioners  of  election.  The  machinery  of  their  election  is  this:  They 
have  a  supervisor  of  registration  for  each  parish,  or  county,  as  we 
would  say.  That  surpervisor  of  registration  appoints  the  commis 
sioners  of  election,  who  are  to  hold  the  polls  at  all  the  voting-places 
and  precincts. 

When  the  election  is  conducted  and  finished  the  commissioners  of 
election  are  to  make  out  their  statement  in  duplicate,  forward  one  to 
the  supervisor  of  the  parish  and  the  other  to  the  clerk  of  the  court, 
and  return  to  the  clerk  of  the  court  the  ballot-boxes  with  all  the  ballots 
in  them,  and  there  they  are  to  remain.  As  was  said  here  to-day,  the 
copy  which  is  sent  to  the  supervisor  to  be  forwarded  to  the  returning 
board  is  sent  only  for  a  temporary  purpose  ;  no  law  requires  that  to  be 
preserved  anywhere,  that  I  am  aware  of.  The  other  is  deposited  in  a 
public  judicial  office  as  the  permanent  record  evidence  of  the  election. 
When  the  returning  board  proceed  to  canvass,  they  are  required  by 
the  law  and  by  its  express  provisions  to  canvass  the  statements  made 
by  the  commissioners  of  election,  which  have  by  law  to  be  sent  up  to 
the  supervisor  and  by  him  forwarded  to  the  returning  board.  Now, 
to  the  amount  of  '2,000  votes  they  did  not  canvass  at  all  the  returns 
made  by  the  commissioners  of  election,  but  did  canvass  the  statement 
which  the  supervisor  had  made  from  them,  and  which  omitted  votes  to 
the  amount  of  2,000,  which  never  were  counted  or  canvassed  at  all. 

But  the  precise  point  to  which  I  now  want  to  come  is  that  when  in 
any  parish  it  shall  be  made  to  appear  to  them  by  the  statement  of 
the  commissioners  of  election  that  riot,  tumult,  &c.,  have  occurred 
at  any  poll  and  have  deterred  voters  sufficient  to  change  materially 
the  result  of  the  election — and  that  statement  the  law  says  shall  be 
attached  by  wax  or  paste  to  the  statement  and  return  itself,  all  to  be 
made  out  and  forwarded  by  mail  within  twenty-four  hours — when 
that  comes  to  the  returning  board  in  the  form  prescribed  by  the 
twenty -sixth  section  of  the  act,  then  they  shall  proceed,  if  they  think 
there  has  been  such  intimidation,  to  investigate  the  matter.  That, 
however,  is  to  be  upon  the  oath  of  three  citizens  electors  of  the  par 
ish.  Then  they  are  to  proceed  to  inquire  into  the  fact  whether  there 
has  been  intimidation  to  such  au  extent  as  materially  to  affect  the 
result  of  the  election. 

Is  the  order  of  the  court  to  proceed  till  nine  o'clock  inflexible,  un 
changeable,  for  health  or  sickness,  or  anything  else  ? 

The  PRESIDENT.     There  is  no  qualification. 

Mr.  CARPENTER.  I  am  really  unable  by  this  candle-light  to  read 
my  brief  and  refer  to  these  statutes. 

The  PRESIDENT.  There  was  no  qualification  made  in  the  private 
consultation.  I  was  instructed  to  make  the  announcement  which  I 
did  make,  and  I  have  no  authority  to  qualify  it. 

Mr.  CARPENTER.  Have  I  authority  to  ask  the  court  to  indulge 
me  till  to-morrow  morning  ? 

The  PRESIDENT.  Certainly  you  have  authority  to  ask  them,  and 
I  will  submit  it  to  the  Commission. 

Mr.  CARPENTER.     I  make  that  request. 

The  PRESIDENT.     What  is  the  request  ? 

Mr.  CARPENTER.  That  I  be  excused  until  to-morrow  morning. 
It  is  now  half  past  six.  o'clock. 

Mr.  Commissioner  MILLER.  Mr.  Carpenter,  how  much  time  do 
you  propose  to  take?  You  have  spoken  an  hour  and  ten  minutes. 

Mr.  CARPENTER.     I  meant  to  go  up  to  two  hours. 

Mr.  Commissioner  MILLER.  Cannot  some  other  gentleman  go  on  ? 
We  are  ready  to  sit  here. 

The  PRESIDENT.  I  will  submit  the  question  to  the  Commission. 
Mr.  Carpenter  asks  that  he  bo  excused  until  to-morrow  morning, 
which,  in  effect,  is  adjournment.  Are  you  ready  for  the  question  ? 

Mr.  Commissioner  EDMUNDS.  That  is,  that  the  proceedings  be 
suspended,  if  I  correctly  understand. 

The  PRESIDENT.  That  proceedings  be  suspended  until  to-mor 
row  morning. 

Mr.  Commissioner  FIELD.  Mr.  Carpenter,  how  early  are  you 
willing  to  come  in  the  morning  ?  because  we  may  perhaps  make  up  in 
the  morning  the  time  now  lost. 

Mr.  CARPENTER.    Any  time  after  six  o'clock. 

The  PRESIDENT.  Shall  the  proceedings  be  suspended  until  the 
opening  of  the  session  to-morrow  morning?  [Putting the  question.] 

Mr.  Commissioner  EDMUNDS.     I  call  for  the  yeas  and  nays. 

Mr.  Commissioner  PAYNE.  I  move  that  the  commission  adjourn 
until  ten  o'clock  to-morrow  morning. 

The  PRESIDENT.  I  doubt  whether  I  ought  to  put  that ;  this  is 
in  the  midst  of  a  vote. 

Mr.  Commissioner  STRONG.  I  should  like  to  inquire,  Mr.  Carpen 
ter,  whether  you  are  understood  as  saying  you  are  sick  ? 

Mr.  CARPENTER.  I  am  sick  and  sick  from  this  smoke.  I  could 
sit  here  for  several  nights  and  not  be  sick  ;  but  speaking  here  and  in 
haling  the  smoke  of  these  candles  really  makes  me  ill. 

The  PRESIDENT.  The  question  is  whether  the  proceedings  shall 
be  suspended  until  to-morrow  morning  at  the  opening  of  the  session, 
upon  which  the  yeas  and  nays  are  called  for. 


Mr.  Commissioner  HOAR.    Has  any  hour  been  named  ? 

Mr.  Commissioner  ABBOTT.     I  would  suggest  ten  o'clock. 

Other  MEMBERS.    Ten  o'clock. 

The  PRESIDENT.  Ten  o'clock  is  suggested.  It  is  moved  that 
proceedings  be  suspended  until  ten  o'clock  to-morrow. 

The  yeas  and  nays  being  called,  the  result  was  as  follows: 

Those  voting  in  the  affirmative  were :  Messrs.  Abbott,  Bayard,  Brad 
ley,  Clifford,  Field,  Huuton,  Payne,  and  Thurman — 8. 

Those  voting  in  the  negative  were  Messrs.  Edmunds,  Frelinghuysen, 
Hoar,  Miller,  and  Strong — 5. 

The  Commission  thereupon  (at  six  o'clock  and  thirty-five  minutes 
p.  m.)  adjourned  until  to-morrow  at  ten  o'clock  a.  in. 


WEDNESDAY,  February  14, 1877. 

The  Commission  met  at  ten  o'clock  a.  m.,  pursuant  to  adjournment, 
all  the  members  being  present. 

The  respective  counsel  appearing  in  the  Louisiana  case  were  also 
present. 

The  Journal  of  yesterday  was  read  and  approved. 

The  PRESIDENT.    Proceed  with  your  argument,  Mr.  Carpenter. 

Mr.  CARPENTER.  May  it  please  your  honors,  before  resuming 
my  argument  I  desire  to  make  my  grateful  acknowledgment  to  the 
Commission  for  their  kindness  in  excusing  me  last  night.  The  cur 
rents  of  atmosphere  in  this  Chamber,  like  all  currents  of  authority, 
proceed  from  the  bench  toward  the  bar  with  overwhelming  force,  and 
I  presume  your  honors  sitting  against  the  wall  were  not  aware  of  it, 
but  the  air  in  the  Chamber  at  this  point  was  absolutely  stifling,  and 
it  would  have  been  impossible  for  me  to  stand  on  my  feet  twenty 
minutes  more. 

Recurring  for  a  moment  to  the  question  put  me  by  Senator  ED 
MUNDS  in  that  part  of  my  argument  in  which  I  attempted  to  show  that 
electors  wrere  Federal  and  not  State  officers,  as  to  whether  they  were 
commissioned  by  the  President,  the  Constitution  provides  that  the 
President  "shall  nominate,  and,  by  and  with  the  advice  and  consent 
of  the  Senate,  shall  appoint  erubassadors,  other  public  ministers,  and 
consuls,  judges  of  the  Supreme  Court,  and  all  other  officers  of  the 
United  States,  whose  appointments  are  not  herein  otherwise  provided 
for,  and  which  shall  be  established  by  law ;  hut  the  Congress  may  by 
law  vest  the  appointment  of  such  inferior  officers,  as  they  think  proper, 
in  the  President  alone,  in  the  courts  of  law,  or  in  the  heads  of  Depart 
ments." 

The  practical  construction  put  upon  this  Constitution  has  always 
been  that  those  officers  who  were  appointed  by  the  President  must  be 
commissioned  by  him ;  those  officers  appointed  by  the  heads  of  De 
partments  are  invariably  commissioned  by  such  heads  of  Departments. 
For  instance,  all  the  postmasters  after  the  first  grade,  which  do  not 
require  to  be  confirmed  by  the  Senate,  are  commissioned  by  the  Post 
master-General.  So  all  the  officers  of  internal  revenue  are  by  law  ap 
pointed  by  the  Secretary  of  the  Treasury  and  commissioned  by  him. 
The  appointment  of  electors  is  provided  for  to  be  by  the  State,  and 
they  are  not  confirmed  by  the  Senate ;  they  are  not  appointed  by  the 
President,  and  according  to  the  uniform  action  under  this  Constitu 
tion,  they,  of  course,  would  not  be  commissioned  by  the  President,  al 
though  that,  I  submit,  would  not  be  at  all  conclusive  of  the  question. 
Senators  are  not  commissioned  by  the  President;  and  although  Sen 
ators  are  not  civil  officers  within  that  clause  of  the  Constitution  re 
lating  to  impeachment,  yet  in  a  broader  sense,  distributing  offices 
between  the  Government  of  the  United  States  and  the  State,  nobody 
would  claim  that  a  Senator  was  a  State  officer ;  he  is  an  officer  of  the 
United  States;  he  is  a  Senator  of  the  United  States,  not  a  Senator 
of  the  State  from  which  he  is  elected.  He  is  elected  to  fill  an  office 
created  by  the  Constitution  of  the  United  States,  and  he  is  a  Senator 
of  the  United  States,  and  not  of  the  State  which  elects  him. 

Mr.  Commissioner  EDMUNDS.  But  is  the  true  meaningof  the  clause 
that  the  President  shall  commission  all  the  officers  of  the  United  States, 
that  he  shall  commission  all  officers  of  the  United  States  who  are 
appointed  by  him  ? 

Mr.  CARPENTER.  Certainly;  and  that  has  been  the  uniform 
practice  of  the  Government.  Nobody  would  deny  that  officers  under 
the  Internal  Revenue  Department  are  officers  of  the  United  States. 
They  have  been  indicted  as  such  and  are  in  the  States-prison  as  such 
to-day,  any  number  of  them,  under  statutes  punishing  officers  of  the 
United  States  ;  and  yet  they  are  not  commissioned  by  the  President, 
but  by  the  Secretary  of  the  Treasury. 

Mr.  Commissioner  GARF1ELD.  Mr.  Carpenter,  are  they  not  two 
grades,  one  called  officers  proper  and  the  other  inferior  officers  ?  The 
President  commissions  all  officers ;  but  the  heads  of  Departments  or 
courts  may  appoint  inferior  officers. 

Mr.  CARPENTER.  There  is  no  such  distinction  in  the  Constitution 
whatever. 

Mr.  Commissioner  GARFIELD.  I  think  you  will  find  the  language  is 
that  such  inferior  officers  as  Congress  may  direct  may  be  appointed 
by  the  heads  of  Departments  or  by  the  courts. 

Mr.  CARPENTER.  I  see  the  point  now,  which  I  did  not  before, 
because  I  did  not  distinctly  hear  the  inquiry.  The  question  is  not 
whether  the  man  is  an  iufVrior  or  a  superior  officer ;  the  question  is 


78 


ELECTORAL  COMMISSION. 


•whether  lie  is  an  officer  of  the  United  States;  and  the  clause  which 
requires  the  President  to  commission  is  that  he  shall  "commission  all 
officers  of  the  United  States."  An  inferior  officer  is  an  officer,  is  he 
not  ?  He  would  not  be  an  inferior  officer  if  he  was  not  an  officer. 
That  clause  of  the  Constitution  is  that  the  President  shall  commission 
all  officers,  which  would,  of  course,  include  the  inferior  as  well  as  the 
superior.  But  the  interpretation  always  put  upon  it  has  been  that 
the  President  must  commission  those  officers  who  are  nominated  by 
him  and  appointed  by  and  with  the  advice  and  consent  of  the  Senate, 
and  nobody  else. 

Now  I  will  proceed  with  the  argument  at  the  point  where  I  stopped 
last  night.  We  shall  offer  to  show  and  are  able  to  show  conclusively 
by  record  testimony  that  this  returning  board  in  Louisiana  excluded 
some  eight  or  ten  thousand  votes  given  for  the  Tilden  electors  so 
called.  We  claim  that  that  law  under  which  they  pretended  to  act 
was  iu  the  first  place  wholly  unconstitutional.  The  constitution  of 
the  State  of  Louisiana  is  peculiar.  It  provides : 

ART.  73.  The  judicial  power  shall  be  vested  in  a  supremo  court,  in  district 
courts,  iu  parish  courts,  and  in  .justices  of  the  peace. 

And  then  after  defining  the  jurisdiction  of  the  several  courts  thus 
mentioned,  it  provides  as  follows: 

AUT.  94.  No  judicial  powers,  except  as  committing  magistrates  in  criminal  cases, 
shall  be  conferred  on  any  officers  oilier  than  those  mentioned  in  this  title,  except 
such  as  maybe  necessary  in  towns  and  cities;  and  the  judicial  powers  of  such 
officers  shall  not  extend  further  than  the  cognizance  of  cases  arising  under  the 
police  regulations  of  towns  and  cities  in  the  State.  In  any  case  where  such  officers 
shall  assume  jurisdiction  over  other  matters  than  those  which  may  arise  under 
police  regulations,  or  under  their  jurisdiction,  as  committing  magistrates,  they  shall 
bo  liable  to  an  action  of  damages  in  favor  of  the  party  injured,  or  his  heirs  ;  and  a. 
verdict  in  favor  of  the  party  injured  shall,  ipso  facto,  operate  a  vacation  of  the  office 
of  said  officer. 

So  your  honors  will  see  that  there  is  not  only  the  affirmative  lan 
guage  which  is  found  in  the  Constitution  of  the  United  States  and 
in  that  of  most  of  the  States,  vesting  the  judicial  power  in  certain 
tribunals,  but  in  this  constitution  there  is  the  negative  language 
forbidding  the  Legislature  to  vest  any  judicial  power  whatever  in 
anybody  except  the  courts  mentioned  in  the  first  part  of  the  consti 
tution.  The  sections  quoted  iu  my  brief  (and  I  have  quoted  them  in 
full  without  note  or  comment)  on  pages  25  and  20,  being  sections  3 
and  26  of  the  election  law  of  1872,  undoubtedly  pretended  to  confer 
judicial  power  upon  the  returning  board.  The"  highest  penalty  that 
can  be  visited  upon  an  American  citizen  is  disfranchisement,  ami  that 
can  only  be  visited  after  the  man  has  been  indicted  and  tried  and 
punished  in  ar  court  of  judicial  jurisdiction  according  to  the  course 
of  the  common  law.  Now,  let  us  see  if  this  is  disfranchisement  or 
not,  and  see  how  wo  should  enjoy  it  applied  to  a  different  object.  The 
fifteenth  amendment  of  the  Constitution  is  that — 

The  right  of  citizens  of  the  United  States  to  vote  shall  not  be  denied  or  abridged 
by  the  United  States  or  by  any  State  on  account  of  race,  color,  or  previous  condi 
tion  of  servitude. 

What  would  be  said  of  a  statute  passed  by  a  Southern  State  which 
should  provide  that  the  votes  of  all  colored  citizens  should  be  re 
ceived  aud  deposited  in  a  box,  but  that  they  should  not  be  canvassed, 
and  should  have  no  effect  whatever  in  determining  the  result  of  the 
election  ?  Would  not  every  lawyer  in  the  land  denounce  that  as  an 
evasion,  a  palpable  violation  of  the  spirit  and  purpose  and  effect  of 
th«  fifteenth  amendment  ?  Would  not  every  lawyer  say  that  dis- 
frauchisemeut  had  been  visited  in  the  result ;  that  the  word  "to  vote  " 
as  used  here  in  the  Constitution  means  not  merely  the  right  to  deposit 
the  ballot  in  the  box,  but  to  have  it  counted  and  estimated  and  made 
effectual  in  determining  the  result  of  the  election  ;  and  anything 
whatever  that  prevents  that  in  any  of  the  stages  in  which  the  vote 
is  made  effective  between  its  being  put  in  the  ballot-box  and  its  bein^ 
counted  in  the  final  result  would  be  disfranchisement.  Nobody  would 
question  that.  Now  a  power  which  is  granted  to  the  returning  board 
to  exclude  the  votes  of  a  whole  parish  for  any  cause  whatever  is  a 
power  to  visit  disfrauchiseinent  upon  the  people  of  that  parish  :  and 
that  is  judicial  power.  The  board  are  not  by  the  terms  of  this  law 
authorized  to  do  it  because  they  want  to  do  ft;  they  are  to  do  it  in  a 
particular  instance ;  that  is,  when  a  foundation  is  laid  for  them  to 
proceed  upon,  to  wit,  a  protest  from  the  officer  holding  the  poll  that 
there  was  riot  or  tumult  to  such  an  extent  as  to  materially  interfere 
with  the  result  of  the  election.  Then  the  board,  and  not  otherwise, 
are  authorized  by  law  to  proceed  and  investigate  the  matter,  and  if 
they  are  satisfied  that  the  allegation  is  true,  to  exclude  the  vote  of  an 
entire  parish. 

Is  there  any  escape  from  the  objection  that  that  is  an  exercise  of 
juuicial  power  ?  Does  it  not  on  its  face  pretend  and  purport  to  be  an 
exercise  of  judicial  power?  Again,  let  me  say  of  this  section,  that 
it  ^contrary  to  the  first  principles  of  natural  justice  and  the  maxims 
of  the  Christian  religion,  and  all  the  principles  of  society,  that  one 
man  should  bo  punished  for  another  man's  fault.  Suppose  such  a 
statute  were  to  bo  applied  in  Wisconsin  to  Milwaukee  Countv,  which 
in  its  normal  condition  is  able  to  give  5,QOO  democratic  majority  and 
the  republicans  are  a  mere  handful ;  suppose  a  hundred  of  our  repub 
licans  should  bull-doze  another  hundred  republicans,  and  then  un 
der  this  section  present  the  proof  of  that  fact.  The  statute  does  not 
relate  to  one  party  bull-dozing  another,  but  it  is  one  voter  bull-doz 
ing  another  5  aud  under  such  a  provision  the  violence  and  tumult 


might  be  confined  entirely  to  republicans  and  might  be  committed 
for  the  express  purpose  of  throwing  out  the  vote  of  that  county,  and 
thus  escaping  5,000  democratic  majority  on  the  State  ticket. 

There  is  no  necessity  for  showing  to  that  board  that  the  men  whose 
votes  are  to  be  excluded  have  been  guilty  of  anything.  They  are  not 
required  to  give  notice.  They  may  live  three  hundred  miles  from 
New  Orleans  where  this  proceeding  is  going  on  ;  they  are  not  charged 
with  having  done  anything  themselves,  and  it  is  not  necessary  that 
they  should  under  this  section.  It  is  simply  necessary  to  show  that 
somebody  committed  a  riot,  aud  all  the  honest  men  of  that  county  or 
parish,  if  there  are  any  honest  men  in  it,  are  to  be  disfranchised'.  I 
concede  that  a  law  passed  by  the  Legislature,  providing  that  any 
man  who  had  used  violence  or  raised  a  tumult  or  had  practiced  brib 
ery  or  other  corruption  at  an  election,  should,  on  conviction  thereof, 
be  disfranchised,  would  bo  constitutional ;  but  before  that  result  can 
be  visited  upon  him,  he  must  be  indicted,  he  must  be  notified,  he  must 
have  a  hearing  and  a  trial,  and  there  must  be  judicial  conviction. 
All  that  is  visited  here  upon  a  thousand  people  at  once,  without  no 
tice,  without  hearing,  who  may  go  to  the  office  of  the  district  court 
in  their  county  and  find  no  charge  whatever  which  will  give  the  re 
turning  board  jurisdiction  to  proceed;  and  yet  that  board  three  hun 
dred  miles  away,  without  notice  to  any  oue'of  them,  sitting  in  secret, 
by  candle-light  at  midnight,  is  excluding  their  votes  from  the  can 
vass  of  votes  given  in  the  State,  and  visiting  upon  them  the  very  con 
sequence  which  would  be  visited  as  the  result  of  a  judgment  convict 
ing  them  of  some  crime. 

We  say  for  that  reason  that  law  is  void.  But  suppose  it  is  not,  for 
I  must  hurry  on.  Let  us  concede  that  the  law  is  perfectly  valid. 
There  is  not  a  man  in  his  senses,  I  think,  who  will  claim  that  such  a 
law,  visiting  such  sweeping  consequences  by  the  action  of  a  board 
composed  of  four  politicians,  sitting  alone  and  in  secret,  should  be 
stretched  beyond  its  letter.  The  doctrine  is  well  settled  that  even  a 
judicial  court,  proceeding  to  execute  a  statutory  power  outside  of  its 
ordinary  jurisdiction,  is  bound  to  have  a  case  clearly  within  its  juris 
diction,  and  to  proceed  strictly  according  to  the  method  pointed  out 
by  the  statute.  In  Thatcher  vs.  Powell,  6  Wheaton,  119,  the  great 
Chief-Justice  said: 

In  summary  proceedings,  when  a  court  exercises  an  extraordinary  power  under  a 
special  statute  prescribing  its  course,  we  think  that  course  ought  to  be  exactly  ob 
served,  and  those  facts  especially  which  give  jurisdiction  ought  to  appear  in  order 
to  show  that  its  proceedings  are  quorum  judic'e.  Without  this  act  of  Assembly  the 
order  for  sale  would  have  been  totally  void.  This  act  gives  the  power  only  on  a 
report  to  bo  made  by  the  sheriff.  This  report  gives  the  court  jurisdiction,  and 
without  it  the  court  is  as  powerless  as  if  the  act  had  never  passed. 

In  the  Louisiana  election  law  the  power  of  this  returning  board  to 
proceed  to  an  inquiry  even  upon  this  subject  is  based  on  the  protest 
coming  from  the  election  poll  in  the  form  prescribed  in  the  twenty- 
sixth  section  ;  and  the  third  section  which  gives  this  power  is  partic 
ular  to  define  it  and  says  that  when  tlie  statement  shall  come  from  the 
election  poll  in  the  form  prescribed  by  the  twenty -sixth  section,  then 
the  returning  board  shall  proceed.  The  general  principle  of  law  that 
any  statutory  tribunal  must  have  a  case  strictly  within  its  jurisdiction, 
and  that  the  case  mustbeshown  to  be  within  its  jurisdiction,  and  that 
there  is  no  presumption  in  favor  of  its  jurisdiction  but  the  reverse, 
is  well  settled  law.  It  was  held  distinctly  in  SBurrowes,  1366;  in  3 
Term  Reports,  444;  in  Strange,  1258;  2  Lord  Raymond,  1144;Salkeld, 
406;  Jones  vs.  Reed,  1  Johnson's  Cases,  20;  Wells  vs.  Newkirk,  1 
Johnson's  Cases,  228 ;  Powers  vs.  The  People,  4  Johnson's  Cases,  292 ; 
Bloom,  vs.  Burdick,  1  Hill,  330;  Adkins  vs.  Brewer,  3  Cowen,  20(i; 
Walker  vs.  Turner,  9  Wheatou,  541,  and  in  a  great  variety  of  circum 
stances,  but  always  announcing  the  same  principle  that  a  statutory 
tribunal  must  proceed  under  the  statute  and  must  have  a  case  shown 
to  be  within  its  jurisdiction  or  its  whole  proceedings  are  void. 

If  it  be  necessary  to  stop  to  argue  that  question  any  further  before 
this  tribunal,  it  will  be  done  by  my  associates. 

Now  let  me  call  your  attention  to  how  carefully  this  act  has  re 
stricted  this  jurisdiction,  and  we  will  show  you,  if  permitted  to  do 
so — I  ask  the  special  attention  of  the  Commission  to  this  fact — that 
not  in  a  single  parish  did  this  returning  board  have  a  certificate  in 
the  form  and  complying  in  substance  with  the  twenty-sixth  section  ; 
in  not  a  single  case  did  they  have  that  jurisdiction.  Section  43  makes 
it  the  duty  of  the  supervisor  to  forward  with  his  statement  "a  copy 
of  any  statement  as  to  violence  or  disturbance,  bribery  or  corruption, 
or  other  offenses  specified  in  section  26  of  this  act,  if  any  there  be, 
together  with  all  memoranda  and  tally-lists  used  in  making  the  count 
and  statement  of  the  votes." 

Section  26  provides  that  the  supervisor's  copy  of  such  statement 
"shall  be  so  annexed  to  his  retuius  of  elections  by  paste,  wax,  or 
some  adhesive  substance,  that  the  same  can  be  kept  together,  and  the 
other  copy  the  supervisor  of  registration  shall  deliver  to  the  clerk  of 
the  court  of  his  parish  for  the  use  of  the  district-attorney." 

Now,  mark  how  carefully  they  have  provided  here.  All  this  is  to 
be  done  by  the  law  within  twenty-four  hours  before  any  particular 
locality  can  have  knowledge  of  what  has  been  the  general  result  of 
the  election  in  other  places,  and  therefore  be  subjected  to  the  temp 
tation  to  alter  and  corrupt  that  return.  Within  twenty-four  hours, 
before  they  have  heard  from  anybody  else,  they  shall  speak  their 
voice  and  forward  it  to  the  seat  of  government ;  and  to  that  state 
ment  which  must  go  within  twenty-four  hours  shall  be  attached  by 
wax  or  paste  all  the  statements  which  become  under  the  third  section 


ELECTORAL  COMMISSION. 


79 


the  foundation  of  the  jurisdiction  of  that  board  to  act  upon  the  ques 
tion  of  excluding  a  vote  at  alL 

It  is  pretended  in  some  of  these  cases  that  fifteen  days  after  the 
return,  without  such  statement  had  been  forwarded  to  the  seat  of 
government,  somebody  having  an  interest  sent  in  some  affidavits  or 
statements  charging  that  there  was  riot  or  tumult  at  the  polls.  To 
permit  such  a  statement  to  give  jurisdiction  would  be  to  disregard 
this  statute  altogether. 

I  am  very  glad  to  bo  fortified  at  this  point  by  the  report  made  by  a 
House  committee  signed  by  Hon.  GEORGE  F.  HOAii,William  A.  Wheeler, 
and  William  P.  Frye,  in  which  they  say,  after  quoting  sections  3  and 
2(i,  which  I  have  read  : 

Upon  this  statute  we  are  all  clearly  of  opinion  that  the  returning  board  had  no 
right  to  do  anything  except  to  canvass  and  compile  the  returns  which  were  law 
fully  made  to  'them  by  the  local  officers,  except  in  cases  where  they  were  accom 
panied  by  the  certificates  of  the  supervisor  or  commissioner  provided  in  the  third 
section.  In  such  cases,  the  last  sentence  of  that  section  shows  that  it  was  ex 
pected  that  they  would  ordinarily  exercise  the  grave  and  delicate  duty  of  investi 
gating  charges  of  riot,  tumult,  bribery,  or  corruption  on  a  hearing  o£  the  parties 
interested  in  the  office.  It  never  could  have  been  meant  that  this  board,  of  its  own 
notion,  sitting  in  New  Orleans,  at  a  distance  from  the  place  of  voting,  and  without 
notice,  could  decide  the  right  of  persons  claiming  to  be  elected. 

The  board  took  a  different  view  of  its  powers,  and  proceeded  to  throw  out  the 
votes  from  many  polls  where  they  found  intimidation  and  violence  to  have  ex 
isted.  The  result  was  to  defeat  persons  whom,  on  the  returns,  they  should  have 
declared  elected,  and  to  elect  persons  who  should  not  have  been  declared  elected. 

Now  let  us  see  for  a  moment  what  is  that  statement  provided  for 
by  the  twenty-sixth  section  which  must  come  up  within  twenty-four 
hours  embalmed  in  wax  or  paste  or  some  other  adhesive  substance, 
to  the  returning  board.  The  third  section  says  that  when  they  re 
ceive  a  statement  in  the  form  prescribed  by  the  twenty-sixth  section 
they  may  proceed.  Now  let  us  turn  to  the  twenty-sixth  section  and 
see  what  must  bo  shown.  That  must  be — 

A  clear  and  full  statement  of  all  the  facts  relating  thereto— 

That  is,  relating  to  the  riot,  tumult,  &c. — 

and  of  the  effect  produced  by  such  riot,  turault,  acts  of  violence,  intimidation, 
aud  disturbance,  bribery,  or  corrupt  influences  in  preventing  a  fair,  free,  peace 
able,  and  full  registration  or  election,  and  of  the  number  of  qualified  electors  de 
terred  by  such  riots,  tumult,  &c.,  from  registering  or  voting ;  which  statement 
shall  also  be  corroborated  under  oath  by  three  respectable  citizens,  qualified  elect 
ors  of  the  parish. 

We  will  show  this  Commission  that  not  a  single  parish  sent  up  any 
such  statement  with  its  return,  verified  by  the  affidavit  of  three  per 
sons.  In  other  words,  we  will  show  affirmatively  that  this  statutory 
tribunal  had  no  jurisdiction  to  exclude  a  vote,  but  that  in  violation 
of  the  very  statute  they  were  pretending  to  proceed  under,  they  ex 
cluded  10,'GOO  votes  given  for  the  Tildeii  electors.  This  we  are  pre 
pared  to  show,  aud  show  by  record  testimony. 

Passing  from  this  point,  as  I  have  not  time  to  dwell  upon  it,  I  wish, 
to  refer  the  Commission  to  the  very  able  discussion  in  the  Senate  on 
the  resolution  to  admit  Mr.  Piuchback  to  a  seat  in  that  body  from 
Louisiana,  especially  the  very  able  speeches  of  the  Senator  from  Ver 
mont,  [Mr.  EDMUNDS,]  where  precisely  the  doctrine  I  am  claiming 
here  is  enforced  with  that  clearness  and  eloquence  of  which  he  is 
master  and  I  only  an  humble  and  hopeless  imitator.  I  refer  you  to 
the  fountain  of  this  doctrine.  I  refer  you  to  his  speeches  upon  it 
which  make  it  as  clear  as  the  sun  at  noonday. 

But  passing  on,  the  other  side  say  apparently  "that  is  all  true;" 
my  honorable  friend  from  Wisconsin,  Judge  Howe,  who  opened  this 
case  on  the  other  side,  did  not  pretend  that  there  had  not  been  frauds. 
He  said  there  had,  but  he  said  there  had  been  blood  also.  In  other 
\voids,  one  crime  was  to  be  remedied  by  another.  If  the  plaintiff's 
witnesses  commit  perjury  the  defendant  is  authorized  to  have  his 
witnesses  commit  perjury!  That  is  the  argument.  Now  let  me  show 
how  this  was  condemned  by  the  report  of  the  committee,  from  which 
I  have  just  read,  upon  the  same  subject: 

The  returning  board  claims  that  in  this  proceeding  they  acted  under  an  honest 
belief  that  they  were  right  in  their  construction  of  the  law,  and  that  they  were 
giving  effect  to  the  true  will  of  a  majority  of  the  people  of  Louisiana,  and  that  ill 
their  construction  they  followed  the  precedent  set  by  the  democratic  or  fusion  re 
turning  board  of  1872.  We  believe  they  did  follow  such  a  precedent.  "We  have  no 
doubt  that  they  believed  they  were  defending  the  people  of  Louisiana  against  a 
fraud  on  their  constitutional  rights.  But  there  is  no  more  dangerous  form  of  self- 
delusion  than  that  which  induces  nten  in  high  places  of  public  trust  to  violate  law 
to  redress  or  prevent  what  they  deem  public  wrongs. 

We  are  no*,  prepared  to  declare  without  further  examination  how  many  persons 
obt  lined  a  prime,  facie  title  to  seats  in  the  Legislature  through  this  wrongful  ac 
tion.  In  some  of  the  cases  there  were  defects  either  of  form  or  substance  in  the  re 
turns  themselves  which,  the  board  claimed,  required  their  rejection  without  re 
gard  to  the  evidence  of  intimidation. 

But  the  method  adopted  to  set  right  this  wrong  was  totally  objectionable. 

Then  they  proceed  to  consider  why  it  was  objectionable,  giving  the 
reasons  among  others  which  I  have  now  given,  and  they  proceed  : 

We  do  not  overlook  the  causes  which  tend  to  excite  deep  feelings  of  discontent 
in  the  white  native  population  of  Louisiana.  There  has  been  great  maladministra 
tion;  public  funds  have  been  wasted,  public  credit  impaired,  and  taxation  is  heavy. 
These  facts  combinowith  the  general  prostration  of  business  through  the  country, 
and  with  the  diversion  of  business  from  New  Orleans  by  reason  of  the  construction 
of  railroads  northerly  from  Texas,  to  create  gloom  and  discontent. 

It  is  further  said — 

Passing  on — 

that  this  is  a  question  which  concerns  the  people  of  Louisiana  alone,  and  that 
they  should  be  left  to  fight  out  the  question  among  themselves.  But  this  is  an  er 
roneous  view,  botn  of  the  rights  and  duties  of  the  people  of  the  United  States  un 
der  the  Constitution.  They  have  an  interest  in  the  question  whether  Senators  and 


Representatives  for  Louisiana,  thrust  into  their  seats  by  illegal  means,  shall  sit  in 
Congress  to  make  laws  for  them,  and  whether  electors,'  gaining  their  office  in  like 
manner,  shall  turn  the  scale  in  the  choice  of  a  President  of  the  United  States  Tho 
President  and  Congress  are  bound  to  recognize  and,  if  need  be,  to  support  the  trio 
government  of  Louisiana  against  all  usurpers ;  and  the  American  people  will  aban 
don  their  rights  and  flinch  from  the  performance  of  their  duties  when  they  leave 
these  questions  to  bo  settled  either  by  the  mob  or  the  assassin. 

Again : 

The  American  people  are  "now  brought  face  to  face  with  this  condition  of  things. 
In  the  State  of  Louisiana  there  is  a  governor  in  office 

"  In  office."  A  man  who  gets  into  laud  by  forcible  entry  and  de 
tainer  is  nevertheless  in. 

In  the  State  of  Louisiana  there  is  a  governor  in  office  who  owes  his  seat  to  the 
interference  of  the  national  power,  which  has  recognized  his  title  to  his  office,  not 
by  reason  of  any  ascertainment  of  the  facts  by  legal  process,  but  has  based  its  ac 
tion  solely  on  the  illegal  order  of  a, judge.  In  the  same  State  there  is  a  Legislature, 
one  branch  of  which  derives  its  authority  partly  from  the  same  order,  the  other 
being  organized  by  a  majority  who  have  been  established  in  power  by  another  in 
terference  of  the  National  Government,  and  which  majority  derives  its  title,  not 
from  any  legal  ascertainment  of  the  facts,  but  from  the  certificates  of  a  returning 
board  which  has  misconceived  and  exceeded  its  legal  authority.  It  is  not  strange 
that  the  republicans  of  Louisiana  should  delude  themselves  by' any  plausible  views 
of  laws  which  will  enable  them  to  occupy  the  places  which  they  believe  the  will  of 
a  majority  of  the  legal  voters  of  the  State,  if  tree  from  voilence  and  intimidation, 
would  award  to  them.  It  is  not  strange  that  the  democrats  of  Louisiana  should 
believe  the  whole  State  government  a  usurpation,  should  give  it  no  credit  for  its 
best  acts,  should  seek  to  embarrass,  and  thwart,  and  resist  it  to  the  extent  of  their 
power,  and  should  be  unwilling  to  wait  for  the  slow  but  sure  operation  of  lawful 
remedies  to  cure  whatever  evil  really  belongs  to  it. 

That  is  the  report  of  Mr.  HOAR,  Mr.  Wheeler,  and  Mr.  Frye.  Will 
not  Mr.  William  A.  Wheeler  wake  up  astonished  if  he  finds  him 
self  counted  in  as  Vice-Presideut  by  an  utter  disregard  and  violation 
of  the  very  principles  which  he  laid  down  in  this  report?  Will  riot 
the  American  people  think  that  is  somewhat  remarkable?  But,  says 
Judge  Howe,  there  are  streams  in  that  State  that  run  blood.  I  hate 
the  sight  of  blood,  aud  I  hate  the  thought  of  it.  I  never  vindicated 
nor  justified  it.  That  there  have  been  violations  of  law  and  outrages 
unnumbered  in  that  State,  is  unquestionable.  That  there  have  been 
maimings,  and  whippings,  and  murderiugs  is  unquestionable.  But  is 
that  to  be  cured  by  committing  upon  the  whole  State  now  a  wrong 
and  outrage,  more  dangerous  even  to  our  institutions  than  those 
bloody  outrages  themselves?  They  fall  upon  individuals;  but  if  onv 
institutions  are  to  be  stabbed  the  injury  falls  upon  the  whole  nation. 
If  justice  is  to  be  slaughtered  in  her  own  temple,  if  the  laws  are  to 
be  immolated  by  their  sworn  priests,  if  fraud  is  to  be  sanctioned  and 
solemnized  as  an  instrumentality  for  electing  n  President  of  the 
United  States,  then  farewell  to  the  future  hopes  of  this  country. 

And  it  is  somewhat  striking,  worthy  at  least  of  reflection,  that  this 
crisis  in  which  we  have  been  thrust  comes  in  the  centennial  year  of 
our  national  bragging  and  boasting.  The  Great  Master  says,  "When 
ye  think  ye  stand  take  heed  lest  ye  fall;"  and  while  our  nation  has 
been  boasting  of  the  success  of  its  institutions,  inviting  "11  the  nations 
of  the  earth  to  come  over  here  and  witness  their  operation  and  wit 
ness  the  material  prosperity  that  has  grown  up  under  them,  just  whilo 
the  eyes  of  the  wTorld  by  our  invitation  are  fixed  upon  us,  the  machine 
is  in  danger  of  going  to  smash.  That  effect  is  to  be  obviated  not  by 
balancing  crimes  against  crimes,  not  by  balancing  blood  with  fraud, 
for  that  is  the  remedy  which  the  Senator  from  Wisconsin  urges  upon 
this  court.  He  did  not  deny  the  fraud.  Ho  did  not  dwell  at  length 
upon  this  canvass.  I  think  he  said  nothing  about  it.  He  sympa 
thized  with  the  ignorant ;  he  sympathized  with  men  afflicted  and 
distressed  in  the  South,  all  of  which  is  very  proper  and  in  which  I 
fully  concur,  especially  in  his  sympathy  for  the  ignorant.  They  al  ways 
touch  my  heart.  But  what  that  has  to  do  with  the  canvass  of  these 
votes  he  failed  to  point  out.  But  ho  says  these  crimes  have  been 
committed.  If  there  is  any  object  whatever  in  making  that  state 
ment  it  is  to  have  you  do  what  the  honorable  committee  of  tho 
House  condemned  the  returning  boa^d  of  Louisiana  for  doing,  that  is, 
trying  to  right  them  by  wrong. 

One  thing  more.  This  state  of  intimidation  in  the  South  has  every 
variety  of  form  and  degree  from  absolute  murder  in  broad  daylight 
down  to  saying  to  a  laborer,  "  If  you  do  not  vote  so  aud  so  I  will  not 
employ  you  any  more;  I  want  democrats  around  me,  and  if  you  are 
not  a  democrat  I  do  not  want  to  employ  you;"  and  between  these 
two  limits  there  is  every  variety  of  intimidation.  Now,  without 
making  any  apology  or  excuse  for  the  things  that  have  undoubtedly 
been  done,  let  us  look  at  the  state  of  affairs  there,  the  state  of  things 
described  by  that  committee  in  their  report. 

I  do  not  say  th-it  a  man,  when  his  nose  is  wrung,  ought  to  kill  any 
body ;  but  I  say  when  his  nose  is  wrung  if  he  does  kill  a  man,  that 
fact  is  to  be  taken  into  consideration.  You  take  a  community  of 
American  citizens  ;  you  take  a  State  of  this  Union  and  put  over  them, 
a  government  by  fraud  and  by  violence — for  that  is  the  way  Kellogg 
got  his  seat,  as  we  all  know  ;  the  whole  nation  knows  it— not  by  any 
ascertainment  of  facts  ;  facts  would  have  done  his  business ;  he  was 
put  there  by  the  same  operation  that  the  canvassing  board  for  the 
Hayes  electors  were  declared  appointed  by  ;  and  that  State  smarting 
under  that  outrage  goes  ou  and  these  acts  aro  committed,  Is  it  n 
good  way  to  produce  a  good  feeling  in  that  State  to  continue  that  irri 
tation,  to  keep  them  under  a  government  which  cannot  rest  upon  as 
certaiued  facts,  which  is  based  upon  nothing  but  fraud  and  falsehood  ? 
Is  that  a  legal  way,  a  prudeut  way,  a  statesman-like  way  of  dealing 
with  the  distempered  condition  of  things  in  the  South  ?  I  submit  it 


80 


ELECTORAL  COMMISSION. 


is  not.  The  injunction  of  the  apostle  is,  "Be  ye  first  pure  and  then 
peaceable."  There  is  no  injunction,  eveii  of  religion,  that  authorizes 
any  roan  to  expect  peace  who  is  not  pure.  Peace  in  an  American 
State  where  the  government  of  that  State  is  forced  upon  them  by  the 
villainy  of  four  men  ;  peace  under  a  government  resting  not  upon 
ascertained  facts  but  upon  ascertained  falsehoods!  No;  I  submit  to 
your  honors  that  you  hold  the  peace  of  that  community  in  your  hands, 
and  that  the  performance  of  the  legal  duty  devolving  upon  you  to 
ascertain  who  were  duly  appointed  electors  of  that  State  will  do  more 
to  quiet  the  sentiment  and  quell  the  disturbance  existing  there  than 
a  regiment  of  troops  could  do. 

Mr.  TRUMBULL.  Mr.  President  and  gentlemen,  this  is  the  time 
when  I  suppose  under  the  ruling  of  the  Commission  we  shall  be  re 
quired  to  present  our  evidence,  and  we  oiler  now 

The  PRESIDENT.  That  was  the  suggestion  from  the  bar,  that 
after  the  close  of  the  first  argument  you  would  offer  some  evidence. 
Mr.  TRUMBULL.  We  propose  now  to  prove  before  the  Com 
mission  that  William  P.  Kellogg,  who  certifies  as  governor  of  the 
Stateof  Louisiana  to  the  appointment  of  electors  of  that  State,  which 
certificate  is  now  before  this  Commission,  is  the  same  William  P. 
Kellogg  who  by  said  certificate  is  certified  to  have  been  appointed 
under  said  election.  In  other  words,  Kellogg  certifies  to  his  own 
appointment  as  such  elector.  We  offer  that  proof. 

The  PRESIDENT.  Do  you  propose  now  to  state  all  your  offers  of 
proof  ? 

Mr.  TRUMBULL.    We  did  not  propose  to  do  so  at  once.    We  pro 
posed  to  offer  the  proof.    There  may  be  some  of  it  that  the  Commis 
sion  might  receive  and  others  not.     Our  proposition  now  is  to  prove 
that  one  fact,  Tinless  there  is  some  objection  to  it. 
Mr.  EVARTS.    We  object  that  it  is  not  admissible. 
Mr.  TRUMBULL.    If  the  Commission  please,  I  suppose  we  are  en 
titled  to  be  heard  upon  tharfc  question. 

The  PRESIDENT.  I  feel  constrained  to  take  the  advice  of  the 
Commission  whether  they  will  proceed  upon  your  separate  offers  of 
proof  or  upon  the  whole  together. 

Mr.  Commissioner  STRONG.  Mr.  President,  if  the  counsel  would 
offer  in  writing  all  that  they  propose  to  prove,  offer  it  as  a  whole, 
and  also  offer  it  in  detail,  it  would  very  much  simplify  the  labor  of 
the  Commission.  The  Commission  could  then  on  consultation  deter 
mine  whether  the  whole  or  whether  any  part  was  admissible.  Other 
wise  we  might  be  obliged  to  retire  for  consultation  again  and  again. 
Mr.  TRUMBULL.  Then  would  the  argument  on  the  introduction 
of  testimony  be  limited  to  fifteen  minutes?  because  there  are  various 
branches  of  it.  We  could  hardly  argue  the  offer  of  testimony  in 
fifteen  minutes. 

Mr.  Commissioner  STRONG.  If  the  offer  were  all  made  in  that 
way,  all  that  was  proposed  to  be  offered  as  a  whole  and  also  the  va 
rious  elements  in  detail,  so  that  the  Commission  could  then  pass  upon 
the  whole  or  upon  the  various  elements  and  determine  what  was  and 
what  was  not  admissible,  for  one  1  should  be  very  much  disposed  to 
give  all  the  time  that  was  necessary  for  the  discussion  of  its  admissi- 
bility. 

The  PRESIDENT.  I  will  submit  the  question  to  the  Commission. 
Perhaps  without  sufficient  reason  as  yet,  I  derived  the  impression 
that  your  offer  would  be  made  altogether,  but  of  course  in  subdivis 
ions. 

Mr.  TRUMBULL.  If  the  Commission  will  allow  me,  I  am  quite 
willing  to  follow  the  suggestion  made  by  Mr.  Justice  STRONG  to  offer 
the  whole  of  our  testimony  at  once,  with  the  understanding  that 
each  part  may  bo  considered  separately. 

Mr.  Commissioner  STRONG.  You  offer  it  as  the  whole  and  in 
parts? 

Mr.  TRUMBULL.  As  n,  whole  and  in  parts.  I  am  entirely  willing 
to  follow  that  suggestion  if  it  meets  the  views  of  the  Commission, 
and  then  we  shall  bo  allowed  a  reasonable  time. 

The  PRESIDENT.  I  think  I  may  assume  that  that  is  the  general 
understanding  of  the  Commission,  "if  not,  some  member  will  express 
his  dissent. 

Mr.  Commissioner  BRADLEY.    Have  you  a  printed  copy  of  the 
offer  you  mean  to  make  ? 
Mr.  TRUMBULL.    Yes,  sir;  partially  so. 

Mr.  EVARTS.  The  only  offer  of  evidence  that  has  been  made  to 
the  Commission  is  to  prove  that  Mr.  Kellogg  who  appears  in  the 
certificate  opened  by  the  President  of  the  Senate  to  be  governor  and 
who  appears  to  be  elector  are  the  same  person.  While  we  regard  the 
admission  of  any  evidence  extrinsic  to  the  certificates  that  were 
opened  by  the  President  of  the  Senate  as  inadmissible,  we  should  not 
in  argument  upon  those  certificates  contend  that  they  were  not  the 
same  person. 

The  PRESIDENT.  The  counsel  are  now  deliberating  as  to  the 
form  to  be  taken.  I  understand  Judge  Trumbull  now  to  accept  the 
suggestion  of  Mr.  Justice  STKONG  to  make  all  the  offers  at  the  same 
time. 

Mr.  TRUMBULL.    Yes,  sir;  and  in  parts. 

The  PRESIDENT.  Separately  and  together.  Proceed  then  to  state 
the  offer. 

Mr.  TRUMBULL.  In  presenting  these  offers  of  evidence,  perhaps 
it  would  be  well  that  we  should  have  some  understanding  as  to  how 
much  time  will  be  permitted.  I  do  not  wish  to  take  any  unnecessary 
or  unreasonable  time  in  stating  what  we  offer. 


Mr.  Commissioner  EDMUNDS.  How  much  time  do  you  think  it 
requires  ? 

Mr.  TRUMBULL.  I  cannot  tell,  because  I  have  not  prepared  an 
argument  on  this  particular  branch  of  the  subject.  I  should  have  to 
read  the  offers  and  briefly  state  what  each  of  them  is.  I  do  not  know 
how  long  it  will  take. 

Mr.  Commissioner  EDMUNDS.  The  reading,  of  course,  will  not  be 
counted  as  part  of  your  time. 

The  PRESIDENT.     You  may  proceed. 

Mr.  TRUMBULL.  I  have  stated  the  first  proposition;  and,  as  I 
understand,  the  fact  is  conceded,  although  it  is  objected  that  wo  have 
no  right  to  introduce  it  in  evidence. 

Mr.  EVARTS.  My  statement  was  that  we  should  not  contend,  on 
the  face  of  the  certificates  as  opened  by  the  President  of  the  Senate, 
that  Mr.  Kellogg  governor  and  Mr.  Kellogg  elector  were  not  the  same 
person.  That  is  satisfactory,  I  suppose. 

Mr.  TRUMBULL.  The  second  branch  of  the  first  offer  which  we 
make  is  to  prove  that  said  Kellogg  was  governor  de  facto  of  said  State 
during  all  the  months  of  November  and  Decernher,  A.  D.  1876.  That 
is  in  the  same  category,  I  suppose  ? 

Mr.  EVARTS.     That  is  in  the  certificate. 

Mr.  TRUMBULL.  On  this  point  we  refer  to  the  constitution  of 
Louisiana : 

AIIT.  117.  No  person  shall  hold  or  exercise  at  the  same  time  more  than  one  office 
of  trust  or  profit,  except  that  of  justice  of  the  peace  or  notary  public. 

We  offer  to  prove  that  said  William  P.  Kellogg  was  not  duly  ap 
pointed  one  of  the  electors  of  said  State  in  A.  D.  1876,  and  that  the 
certificate  is  untrue  in  fact. 

To  show  this  we  offer  to  prove — 

1.  By  certified  copies  of  the  lists  made  out,  signed,  and  sworn  to  by 
the  commissioners  of  election  in  each  poll  and  voting-place  in  the 
State,  and  delivered  by  said  commissioners  to  the  clerk  of  the  district 
court  wherein  said  polls  were  established,  except  in  the  parish  of  Or 
leans,  and  in  that  parish  delivered  to  the  secretary  of  state,  that  at 
the  election  for  electors  in  the  State  of  Louisiana,  on  the  7th  day  of 
November  last,  the  said  William  P.  Kellogg  received  for  elector  6*  1300 
votes  less  than  were  at  said  election  cast  for  each  and  every  of  the  fol 
lowing-named  persons,  that  is  to  say:  John  McEnery,  R.  C.  Wickliffe, 
L.  Saint  Martin,  E.  P.  Poch6,  A.  De  Blanc,  W.  A.  Seay,  R.  G.  Cobb,  K. 
A.  Cross.  (Section  43,  act  1872.) 

That  offer  of  testimony  involves  the  merits  to  some  extent  of  our 
case.  Your  honors  will  remember  that  by  the  law  of  Louisiana  the 
elections  are  held  by  persons  denominated  "  commissioners  of  elec 
tion."  They  correspond  with  judges  of  election  in  most  of  the  States. 
There  are  fifty-seven  parishes  in  the  State  of  Louisiana,  and  in  each 
parish  there  are  a  number  of  polls  or  polling-places,  usually  from  ten 
to  thirty.  There  is  for  each  parish  in  the  State  an  officer  known  as  a 
supervisor  of  registration.  This  supervisor  of  registration  is  ap 
pointed  by  the  governor  of  the  State  and  he  appoints  all  the  commis 
sioners  of  election  throughout  the  State.  He  appoints  as  many  places 
for  voting  as  he  pleases  and  these  voting-places  are  presided  over  by 
the  commissioners  whom  he  appoints.  The  governor  appoints  fifty- 
six  supervisors,  one  for  each  parish  outside  of  Orleans,  and  each  of 
these  supervisors  appoints  all  the  commissioners  of  election,  and  the 
commissioners  of  election  designate  as  many  places  for  holding  the 
election  as  they  please  and  fix  the  points  where  the  elections  are  to 
bo  held.  We  complain  very  seriously  of  this  arrangement.  You  will 
observe  that  it  places  the  entire  machinery  of  the  election  in  the  hands 
of  the  governor,  and  it  is  in  evidence  here  that  these  supervisors  we're 
all  of  one  party.  The  commissioners  of  election  are  required  by  the 
law  to  be  of  different  parties,  but  they  were  generally  all  of  one  party. 
They  were  all  selected  by  the  supervisor  of  registration. 

The  law  further  provides  that  this  canvassing  board  for  the  State, 
called  returning  officers,  which  under  the  law  is  to  consist  of  five 
persons  to  be  elected  by  the  Senate  and  composed  of  different  polit 
ical  parties,  shall  canvass  the  returns  of  the  commissioners  of  elec 
tion.  They  take  an  oath  that  they  will  compile  and  canvass  the 
statements  of  votes  made  by  the  commissioners  of  election.  That  is 
their  oath  and  that  is  the  statute.  In  the  second  section,  if  you  will 
refer  to  it,  you  will  find  that  they  are  required  to  canvass  and  com 
pile  the  statements  of  the  votes  sent  by  the  commissioners  of  elec 
tion.  Those  commissioners  of  election  are  required  under  the  law  to 
make  out  duplicate  returns  upon  the  close  of  the  polls.  One  of  these 
duplicates  they  send  to  the  clerk  of  the  parish.  They  also  send  the 
ballot-boxes  to  the  clerk  of  the  parish.  / 

I  will  not  stop  to  read  it ;  but  the  law  is  very  specific  as  to  the  du 
ties  of  these  commissioners  of  election,  how  they  are  to  make  up  their 
returns  and  what  they  are  to  do  with  the  ballots.  They  are  to  make 
up  their  returns,  you  will  observe,  in  duplicate,  and  one  of  these  du 
plicates  goes  to  the  supervisor  of  registration  of  the  parish,  from 
which  he  makes  up  consolidated  returns  and  sends  them  to  this  board 
of  returning  officers  for  the  State.  Our  offer  in  this  instance  is  to 
prove  by  certified  copies  of  the  lists  made  up,  signed,  and  sworn  toby 
the  commiKsiouers  of  election  at  each  poll  and  voting-place  in  the 
State,  and  delivered  in'o  the  clerk's  office  throughout  the  State,  ex 
cept  the  city  of  New  Orleans,  in  what  is  known  as  Orleans  Parish, 
where  they  are  delivered  to  the  secretary  of  state ;  so  that  there  is  in 
the  State  of  Louisiana  a  perfect  return  from  every  voting-place  in 
the  State,  made  by  the  commissioners  of  election  to  this  board  of  re- 


ELECTORAL  COMMISSION. 


81 


turning  officers,  and  there  is  a  duplicate  in  the  clerk's  office,  the  same 
that  the  board  of  returning  officers  have  before  them.  From  that 
we  say  it  will  appear  that  the  majority  given  to  what  are  denomi 
nated  here  as  the  Tilden  electors  varied  from  six  to  nine  thousand, 
speaking  in  round  numbers.  We  offer  now  to  show  that  to  this  tri 
bunal  by  certified  copies  of  these  papers,  that  you  may  see  what  the 
fact  is.  Then  the  question  arises,  what  is  this  tribunal  ?  That  has 
been  gone  over  by  all  the  counsel  who  have  spoken  ;  but  I  trust  you 
will  pardon  me  for  stating  very  briefly  my  view  of  what  this  tribu 
nal  is  and  what  its  duties  are. 

Mr.  Commissioner  STRONG.  Before  you  proceed  to  that  consid 
eration  allow  me  to  ask  you  a  question. 

Mr.  TRUMBULL.    Certainly. 

Mr.  Commissioner  STRONG.  The  action  of  what  is  said  to  be  the 
canvassing  board — that  is,  the  canvassing  board  created  by  the  act  of 
1872 — the  result  at  which  they  arrived,  is  not  before  us,  I  think. 

Mr.  TRUMBULL.  Yes,  sir ;  we  propose  to  present  those  results  to 
you  ;  that  is  one  of  our  propositions. 

Mr.  Commissioner  STRONG.  Very  well.  Then  I  understand  that 
that  is  one  of  your  propositions. 

Mr.  TRUMBULL.     That  will  be  one  of  our  propositions. 

Mr.  Commissioner  STRONG.     Bnt  thus  far  it  is  not  before  us. 

Mr.  TRUMBULL.  Perhaps  I  shall  be  better  understood  and  the 
Commission  will  better  understand  the  state  of  the  case  if  I  antici 
pate  a  little  then  what  we  propose  in  that  regard. 

Mr.  Commissioner  STRONG.  Give  us  all  your  offers  first  and  the 
argument  afterward. 

Mr.  TRUMBULL.     Shall  I  read  the  whole  paper  through  ? 

Mr.  Commissioner  STRONG.  I  think  you  had  better  give  us  all 
your  offers  at  once. 

Mr.  TRUMBULL.  I  have  no  objection  to  that,  if  it  is  agreeable  to 
the  Commission. 

2.  In  connection  with  the  certified  copies  of  said  lists  we  offer  to 
prove  that  the  returning  board,  which  pretended  to  canvass  the  said 
election  under  the  act  approved  November  20,  1872,  did  not  receive 
from  any  poll,  voting-place,  or  parish  in  said  State,  nor  have  before 
them,  any  statement  of  any  supervisor  of  registration  or  commissioner 
of  election  in  form  as  required  by  section  26  of  said  act,  on  affidavit 
of  three  or  more  citizens,  of  any  riot,  tumult,  acts  of  violence,  iutim- 
idatiou,  armed  disturbance,  bribery,  or  corrupt  influences  which  pre 
vented  or  tended  to  prevent  a  fair,  free,  and  peaceable  vote  of  all 
qualified  electors  entitled  to  vote  at  such  poll  or  voting-place. 

3.  We  further  offer  to  show  that  in  many  instances  the  supervisors 
of  registration  of  the  several  parishes  willfully  'and  fraudulently 
omitted  from  their  consolidated  statement,  returned  by  them  to  the 
State  returning  board,  the  result  and  all  mention  of  the  votes  given 
at  certain  polls  or  voting-places  within  their  respective  parishes,  as 
shown  to  them  by  the  returns  and  papers  returned  to  said  supervisors 
by  the  commissioners  of  election,  as  required  by  law  ;  and  that  in 
consequence  of  this  omission  the  said  consolidated  statements  on  their 
face  omitted  of  majorities  against  the  said  Kellogg,  and  in  favor  of 
each  and  every  the  said  McEnery,  Wickliffe,  St.  Martin,  Poche", 
De  Blanc,  Seay,  Cobb,  and  Cross,  amounting  to  2,267  ;  but  that  said 
supervisors  of  registration  did,  as  by  law  required,  return  to  the  said 
rettirning  board,  with  their  consolidated  statements,  the  lists,  papers, 
and  returns  received  by  them  according  to  law  from  the  commission 
ers  of  election  at  the  several  polls  and  voting-places  omitted  as  afore 
said  from  said  consolidated  statements  of  said  supervisors. 

And  that  the  said  returning  board  willfully  and  fraudulently  neg 
lected  and  refused  to  make  any  canvass  of  the  majorities  so  omitted, 
or  estimate  them  in  any  way  in  their  pretended  determination  that 
the  said  Kellogg  was  duly  elected  an  elector  at  the  election  aforesaid. 

4.  We  offer  to  show  that,  by  the  consolidated  statements  re-turned 
to  said  returning  board  by  the  supervisors  of  registration  of  the  sev 
eral  parishes  of  the  State  of  the  result  of  the  voting  at  the  several 
polls  or  voting-places  within  their  parishes  respectively,  it  appeared 
that  said  Kellogg  received  at  said  election  3,459  less  votes  for  elector 
than  the  said  McEuery,  Wickliffe,  St.  Martin,  Poche",  De  Blanc,  Seay, 
Cobb,  and  Cross,  and  each  and  every  one  of  them. 

5.  We  further  offer  to  show  that  the  said  returning  board  willfully 
and  fraudulently  estimated  and  counted  as  votes  in  favor  of  said 
Kellogg  234  votes  which  were  not  shown  to  have  been  given  at  any 
poll  or  voting-place  in  said  State,  either  by  any  consolidated  state 
ment  returned  to  said  returning  board  by  any  of  the  said  supervisors, 
nor  by  the  statements,  lists,  tally-sheets,  or  returns  made  by  any  com 
missioners  of  election  to  any  of  said  supervisors,  or  which  were  before 
said  returning  board. 

6.  We  offer  to  prove  that  the  votes  cast  and  given  at  said  election 
on  the  7th  of  November  last  for  the  election  of  electors,  as  shown  by 
the  return  made  by  the  commissioners  of  election  from  the  several 
polls  or  voting-places  in  said  State,  have  never  been  compiled  nor  can 
vassed  ;  and  that  the  said  returning  board  never  even  pretended  to 
compile  or  canvass  the  returns  made  by  said  commissioners  of  elec 
tion,  but  that  said  returning  board  only  pretended  to  canvass  the 
returns  made  by  the  said  supervisor.     (Act  of  1872,  section  43 :  "  Su 
pervisor  must  forward ;"  act  of  1872,  section  2:  "Board  must  can 
vass.") 

7.  We  offer  to  prove  that  the  votes  given  for  electors  at  the  elec 
tion  of  November  7  last  at  the  several  voting-places  or  polls  in  said 
State  have  never  been  opened  by  the  governor  of  the  said  State  in 

6 


presence  of  the  secretary  of  state,  the  attorney-general,  and  a  district 
j  udge  of  the  district  in  which  the  seat  of  government  was  established, 
nor  in  the  presence  of  any  of  them ;  nor  has  the  governor  of  said  State 
ever,  in  presence  as  aforesaid,  examined  the  returns  of  the  commis 
sioners  of  election  for  said  election  to  ascertain  therefrom,  nor  has  he 
ever,  in  such  presence,  ascertained  therefrom  the  persons  who  were, 
or  whether  any  one  was,  duly  elected  electors,  or  elector,  at  said  elec 
tion  ;  nor  has  he  ever  pretended  so  to  do.  (Revised  Statutes,  section 
2826.) 

8.  We  further  offer  to  prove  that  the  said  William  P.  Kellogg, 
governor  as  aforesaid,  when  he  made,  executed,  and  delivered  the  said 
certificate,  by  which  he  certified  that  himself  and  others  had  been 
duly  appointed  electors  as  aforesaid,  well  knew  that  said  certificate 
was  untrue  in  fact  in  that  behalf,  and  that  he,  the  said  Kellogg,  then 
well  knew  that  he,  the  said  Kellogg,  had  not  received  of  the  legal 
votes  cast  at  the  election  of  November  7,  1876,  for  electors,  within 
five  thousand  of  as  many  of  such  votes  as  had  at  said  election  been 
cast  and  given  for  each  and  every  of  the  said  McEnery,  Wickliffe, 
Saint  Martin,  Poche",  De  Blanc,  Seay,  Cobb,  and  Cross ;  and  that  he, 
the  said  Kellogg,  when  he  made  and  executed  the  aforesaid  certificate, 
well  knew  that  of  the  legal  votes  cast  at  the  popular  election  held  in 
the  State  of  Louisiana  on  the  7th  day  of  November  last,  for  the  elec 
tion  of  electors  in  said  State,  as  shown  by  the  lists,  returns,  and  papers 
seut  according  to  law  by  the  commissioners  of  election,  who  presided 
over  and  conducted  the  said  election  at  the  several  polls  and  voting 
places  in  said  State,  to  the  supervisors  of  registration,  and  as  shown 
by  the  said  lists,  returns,  papers,  aud  ballots  deposited  by  said  com 
missioners  of  election  in  the  office  of  the  clerks  of  the  district  courts, 
except  the  parish  of  Orleans,  aud  deposited  for  the  parish  of  Orleans 
in  the  office  of  secretary  of  state,  according  to  law  ;  that  each  and 
every  the  said  McEuery,  Wickliffe,  Saint  Martin,  Poch6,  De  Blanc, 
Seay,  Cobb,  and  Cross  had  received  more  than  five  thousand  of  the 
legal  votes  cast  at  said  election  for  electors,  more  than  had  been  cast 
and  given  at  said  election  for  the  said  Kellogg  as  elector,  and  that  the 
said  McEuery,  Wickliffe,  Saint  Martin,  Pochi,  De  Blanc,  Seay,  Cobb, 
and  Cross  had  been  thus  and  thereby  duly  appointed  electors  for  said 
State  in  the  manner  directed  by  the  Legislature  of  said  State. 

9.  We  further  otter  to  prove  that  at  the  city  of  New  Orleans,  in 
the  State  of  Louisiana,  in  the  month  of  October,  A.  D.  1876,  the  said 
William  P.  Kellogg,  J.  H.  Burch,  Peter  Joseph,  L.  A.  Sheldon,  Morris 
Marks,  A.  B.  Levissee,  O.  H.  Brewster,  Oscar  Jofl'riou,  S.  B.  Packard, 
John  Ray,  Frank  Morey,  Hugh  J.  Campbell,  D.  J.  M.  A.  Jewett,  H. 
C.  Dibble,  Michael  Hahu,  B.  P.  Blanchard,  J.  R.  G.  Pitkin,  J.  Madison 
Wells,  Thomas  C.  Anderson,  G.  Casauave,  L.  M.  Kenner,  George  P. 
Davis,  W.  L.  Catlin,  C.  C.  Nash,  George  L.  Smith,  Isadore  McCor- 
inick,  and  others  entered  into  an  unlawful  and  criminal  combination 
and  conspiracy  to  and  with  each  other,  and  each  to  and  with  each  of 
the  others,  to  cause  it  to  be  certified  and  returned  to  the  secretary  of 
state,  by  the  returning  board  of  said  State,  upon  their  pretended 
compilation  and  canvass  of  the  election  for  electors  to  be  thereafter 
held  on  the  7th  day  of  November,  A.  D.  1876,  that  the  said  Kellogg, 
Burch,  Joseph,  Sheldon,  Marks,  Levissee,  Brewster,  and  Jotfrion  had 
received  a  majority  of  all  votes  giveu  and  cast  at  said  election  for 
electors,  whether  such  should  be  the  fact  or  not ;  and 

That  afterward,  to  wit,  on  the  17th  day  of  November,  A.  D.  1876, 
after  said  election  had  been  held  and  it  was  well  known  to  all  of 
said  conspirators  that  said  Kellogg  aud  others  had  not  been  elected 
at  said  election,  but  had  been  defeated,  and  their  opponents  had  been 
elected  at  said  election,  the  said  returning  board  assembled  at  the 
city  of  New  Orleans,  the  seat  of  government  of  said  State,  to  pretend 
to  compile  and  canvjiss  the  statement  of  votes  made  by  the  commis 
sioners  of  election  from  the  several  polls  and  voting-places  in  said 
State  for  presidential  electors,  and  make  returns  of  said  election  to 
the  secretary  of  state,  as  required  by  an  act  of  the  Legislature  of  that 
State,  approved  November  20,  1872  ;  that  when  said  returning  board 
so  assembled,  said  Wells,  said  Anderson,  said  Kenner,  and  said  Casa- 
nave,  who  were  all  members  of  one  political  party,  to  wit,  the  repub 
lican  party,  were  the  only  members  of  said  board  ;  there  being  one 
vacancy  in  said  board,  which  vacancy  it  was  the  duty  of  said  WelJs, 
said  Anderson,  said  Kenner,  and  said  Casanave,  as  members  of  said 
board,  to  fill,  then  and  there,  by  the  election  or  appointment  of  some 
person  belonging  to  some  other  political  party  than  the  republican 
party  ;  but  that  the  said  Wells,  Anderson,  Kenner,  and  Casauave,  thou 
and  there,  in  pursuance  of  said  unlawful  and  criminal  combination  afore 
said,  then  and  there  neglected  and  refused  to  fill  said  vacancy,  for  the 
reason,  as  assigned  by  them,  that  they  did  not  wish  to  have  a  demo 
crat  to  watch  the  proceedings  of  said  board  ;  and  that,  although 
frequently  during  the  session  of  said  board  assembled  for  the  pur 
pose  aforesaid  they,  the  said  Wells,  Anderson,  Kenner,  and  Casa 
nave,  were  duly,  and  in  writing,  requested  by  said  McEnery, 
Wickliffe,  St.  Martin,  Poche",  De  Blanc,  Seay,  Cobb,  and  Cross  to 
fill  said  vacancy,  they  refused  to  do  so,  and  never  did  fill  the 
same,  but  proceeded,  as  such  board,  in  pursuance  of  said  combina 
tion  and  conspiracy,  to  make  a  pretended  compilation  and  can 
vass  of  said  election  without  filling  the  vacancy  in  said  returning 
board ;  and 

That  said  Wells,  Anderson,  Kenner,  and  Casanave,  while  pretend 
ing  to  be  in  session  as  a  returning  board  for  the  purpose  of  compiling 
aud  canvassing  the  said  election,  and  in  pursuance  of  said  combina 
tion  and  conspiracy,  employed  persons  of  notoriously  bad  character 


ELECTORAL   COMMISSION. 


to  act  as  their  clerks  and  assistants,  to  wit :  one  Davis,  a  man  of  no 
toriously  bad  character,  -who  was  then  under  indictment  in  the  crim 
inal  courts  of  Louisiana,  and  said  Catlin,  said  Blanchard,  and  said 
Jevvett,  three  of  said  conspirators,  who  were  then  under  indictment 
ibr  subornation  of  perjury  in  the  criminal  courts  of  Louisiana  ;  the 
said  Jewot-t  being  also  under  indictment  in  one  of  the  criminal  courts 
of  Louisiana  for  obtaining  money  under  false  pretenses  ;  and  Isadora 
McCormick,  who  was  then  under  indictment  in  a  criminal  court  of 
said  State  charged  with  murder.  And  that  in  pursuance  of  said  un 
lawful  combination  and  conspiracy  aforesaid,  the  said  Wells,  Ander 
son,  Kenner,  and  Casauave,  acting  in  said  returning  board,  confided  to 
their  said  clerks  and  em  ploy  6s,  said  co-conspirators,  the  duty  of  compil 
ing  and  canvassing  all  returns  which  were  by  said  returning  board 
ordered  to  be  canvassed  and  compiled ;  and,  although  thereto  partic 
ularly  requested  by  a  communication,  as  follows — 
To  the  honorable  Returning  Hoard  of  the  State  of  Louisiana : 

GENTLEMEN:  The  undersigned,  acting  as  counsel  for  the  various  candidates  upon 
the  democratic-conservative  ticket,  State,  national,  and  municipal,  with  respect 

That  the  returns  from  various  polls  and  parishes  are  inspected  by  this  board  and 
the  vote  announced  by  it  is  merely  that  for  governor  and  electors; 

That  the  tabulation'  of  all  other  votes  is  turned  over  to  a  corps  of  clerks,  to  be 
done  outflide  of  the  presence  of  this  board; 

That  all  of  said  clerks  are  republicans,  and  that  the  democratic-conservative 
candidates  have  no  check  upon  them,  and  no  means  to  detect  errors  and  fraudu 
lent  tabulations,  or  to  call  the  attention  of  this  board  to  any  such  wrong,  if  any 
exist ; 

That  by  this  system  the  fate  of  all  other  candidates  but  governor  and  electors  is 
placed  in  the  hands  of  a  body  of  republican  clerks,  with  no  check  against  erroneous 
or  dishonest  action  on  their  part; 

That  fair  play  requires  that  some  check  should  be  placed  upon  said  clerks,  and 
some  protection  afforded  to  the  said  candidates  against  error  or  dishonest  action  on 
the  part  of  said  clerks: 

Wherefore  they  respectfully  ask  that  they  be  permitted  to  name  three  respecta 
ble  persons,  and  that  to  such  parties  bo  accorded  the  privilege  of  being  present  in 
the  room  or  rooms  where  said  tabulation  is  progressing,  and  of  inspecting  the  tab 
ulation  and  comparing  the  same  with  the  returns,  and  also  of  fully  inspecting  the 
returns,  and  previous  to  the  adoption  by  this  board  of  said  tabulation,  with  a  view 
to  satisfy  all  parties  that  there  has  been  no  tampering  or  unfair  practice  in  connec 
tion  therewith. 

Very  respectfully, 

F.  C.  ZACHARIE. 
CHARLES  CAVANAC. 
E.  A.  BURKE. 

J.  R.  ALCEE  GAUTHREAUX. 
HENRY  C.  BROWN. 
FRANK  McGLOIN. 
I  concur  herein. 

H.  M.  SPOFFORD,  of  Counsel- 

they,  the  said  Wells,  Anderson,  Keuner,  and  Casauave,  acting  as 
said  board,  expressly  refused  to  permit  any  democrat  or  any  person 
selected  by  democrats  to  be  present  with  said  clerks  and  assistants 
while  they  were  engaged  in  the  compilation  and  canvass  aforesaid, 
or  to  examine  into  the  correctness  of  the  compilation  and  canvass 
made  by  said  clerks  and  assistants  as  aforesaid.  And  that  said  re 
turning  board,  in  pursuance  of  said  unlawful  combination  and  con 
spiracy  aforesaid  and  for  th^  purpose  of  concealing  the  animus  of 
said  board  and  inspiring  couhdeuce  in  the  public  miud  in  the  integ 
rity  of  their  proceedings,  on  the  18th  day  of  November,  A.  D.  1876, 
adopted  and  passed  a  preamble  and  resolution,  as  follows : 

Whereas  this  board  has  learned  with  satisfaction  that  distinguished  gentlemen 
of  national  reputation,  from  other  States,  some  at  the  request  of  the  President  of 
the  United  States  and  some  at  the  request  of  the  national  executive  committee  of 
the  democratic  party,  are  present  in  this  city,  with  the  view  to  witness  the  pro 
ceedings  of  this  board  in  canvassing  and  compiling  the  returns  of  the  recent  elec 
tion  in  this  State  for  presidential  electors,  in  order  that  the  pubic  opinion  of  the 
country  may  be  satisfied  as  to  the  truth,  of  the  result  and  the  fairness  of  the  means 
by  which  it  may  have  been  attained ; 

And  whereas  this  board  recognizes  the  importance  which  may  attach  to  the  re 
sult  of  their  proceedings,  and  that  the  public  mind  should  be  convinced  of  its  justice 
by  a  knowledge  of  the  facts  on  which  it  may  be  based :  Therefore  be  it 

Resolved,  That  this  board  does  hereby  cordially  invite  and  request  five  gentlemen 
from  each  of  the  two  bodies  named,  to  bo  selected  by  themselves  respectively,  to  at 
tend  and  bo  present  at  the  meetings  of  this  board  while  engaged  in  the  discharge  of 
its  duties,  under  the  law,  in  canvassing  and  compiling  the  returns  and  ascertaining 
and  declaring  the  result  of  said  election  for  presidential  electors,  in  their  capacity 
as  private  citizens  of  eminent  reputation  and  high  character,  and  as  spectators  and 
witnesses  of  the  proceedings  in  that  behalf  of  this  board. 

But  that  said  returning  board,  being  convinced  that  a  compilation 
and  canvass  of  votes  given  at  said  election  for  presidential  electors, 
made  fairly  and  openly,  would  result  in  defeating  the  object  of  said 
conspiracy,  and  compelling  said  returning  board  to  certify  that  said 
McEnery,  Wickliffe,  St.  Martin,  Poch6,  De  Blanc,  Seay,  Cobb.  and 
Cross  had  been  at  said  election  duly  chosen,  elected,  and  appointed 
electors  by  the  said  State  of  Louisiana ;  and,  in  pursuance  of  eaid 
unlawful  combination  and  conspiracy,  did  afterward,  to  wit,  on  the 
20th  day  of  November,  A.  D.  1876,  adopt  and  pass  the  following  rules 
for  the  better  execution  and  carrying  into  effect  said  combination 
and  conspiracy ;  that  is  to  say  : 

VII. 

The  returning  officers,  if  they  think  it  advisable,  may  go  into  secret  session  to 
consider  any  motion,  argument,  or  proposition  which  may  be  presented  to  them : 
any  member  shall  have  the  right  to  call  for  secret  session  for  the  above  purpose. 

X. 

That  the  evidence  for  each  contested  poll  in  any  parish,  when  concluded,  shall 
be  laid  aside  until  all  the  evidence  is  in  from  all  the  contested  polls  in  the  several 
parishes  where  there  may  be  contests,  and  after  the  evidence  is  all  in  the  returning 
officers  will  decide  the  several  contests  in  secret  session ;  the  parties  or  their  attor 
neys  to  be  allowed  to  submit  briefs  or  written  arguments  up  to  the  time  fixed  for 
the  returning  offipen  going  into  secret  session,  after  which  no  additional  argument 
to  bo  received  unless  by  special  consent. 


That  the  proceedings  thus  directed  to  be  had  in  secret  were  pro 
tested  against  by  the  said  McEnery,  Wickliffe,  St.  Martin,  Poch6, 
De  Blanc,  Seay,  Cobb,  and  Cross  ;  but  said  board  thereafter  proceeded 
and  pretended  to  complete  their  duties  as  such  returning  board  ;  and 
did  perform,  execute,  and  carry  out  the  most  important  duties  de 
volving  upon  said  board  in  secret,  with  closed  doors,  and  in  the.ab- 
sence  of  any  member  of  their  board  belonging  to  the  democratic 
party  or  any  person  whatever  not  a  member  of  said  board  not  belong 
ing  to  the  republican  party. 

That  the  said  Wells,  Anderson,  Kenner,  and  Casanave,  acting  as 
said  returning  board,  while  engaged  in  the  compilation  and  canvass 
aforesaid,  were  applied  to  to  permit  the  United  States  supervisors  of 
election,  duly  appointed  and  qualified  as  such,  to  be  present  at  and 
witness  such  compilation  or  canvass. 

That  application  was  made  to  said  returning  board  in  that  behalf 
as  follows : 
To  the  president  and  members  of  the  returning  board  of  the  State  of  Louisiana  : 

GENTLEMEN:  The  undersigned,  of  counsel  for  United  States  supervisors  of  elec 
tion  duly  appointed  and  qualified  as  such,  do  hereby  except,  protest,  and  object  to 
any  ruling  made  this  20th  day  of  November,  1876,  or  that  hereafter  may  be  made, 
whereby  they  are  deprived  of  the  right  of  being  present  during  the  entire  can 
vass  and  compilation  of  the  results  of  the  election  lately  held  in  the  State  of  Louisi 
ana,  wherein  electors  for  President  and  Vice-President  and  members  of  the 
Forty-fifth  Congress  were  balloted  for,  and  the  result  of  wh  ieh  said  board  are  now 
canvassing. 

That  under  the  fifth  section  of  the  United  States  act  of  February  28,  1871,  they 
are  "  to  be  and  remain  where  the  ballot-boxes  aro  kept,  at  all  times  after  the  polls 
are  open,  until  each  and  every  vote  cast  at  said  time  and  place  shall  be  counted, 
and  the  canvass  ot  all  votes  polled  to  be  wholly  completed  and  the  proper  and  re 
quisite  certificate  or  returns  made,  whether  said  certificates  or  returns  be  required 
under  any  law  of  the  United  States  or  any  State,  territorial,  or  municipal  law." 

"That  under  said  law  of  the  United  Stilton,  District  Attorney  J.  R.  Bockwith,  un 
der  date  of  October  30,  1872,  gave  his  written  official  opinion  for  the  instruction  and 
guidance  of  persons  holding  the  office  now  held  by  protestauts,  wherein  said  United 
States  District  Attorney  said : 

"  It  cannot  be  doubted  that  the  duty  of  the  supervisors  extends  to  the  inspection 
of  the  entire  election,  from  its  commencement  until  the  decision  gf  its  result.  If 
the  United  States  statutes  were  less  explicit  there  stffl  could  be  no  doubt  of  the 
duty  and  authority  of  the  supervisors  to  inspect  and  canvass  every  vote  cast  for 
each  and  every  candidate,  State,  parochial,  and  Federal,  as  the  law  of  the  State 
neither  provides  nor  allows  any  separation  of  the  election  for  Representatives  in 
Congress,  &c.,  from  the  election  of  State  and  parish  officers.  The  election  is  in  law 
a  single  election,  and  the  power  of  inspection  vested  in  law  in  the  supervisors  ap 
pointed  by  the  court  extends  to  the  entire  election,  a  full  knowledge  of  which  may 
well  become  necessary  to  defeat  fraud." 

In  which  opinion  the  attorney-general  of  the  State  of  Louisiana  coincided. 
Whereupon  protestants  claim  admittance  to  all  sessions  of  the  returning  board, 
and  protest  against  their  exclusion  as  unwarranted  by  law,  as  informed  by  their 
attorneys  has  been  done  and  is  contemplated  to  be  done  hereafter  in  said  proceed 
ings  of  said  board. 

F.  C.  ZACHARIE, 

E.  A.  BURKE, 

CHAS.  CAVANAC, 

FRANK  McGLOIN, 

J.  R.  A.  GAUTHREAUX, 

H.  C.  BROWN, 

Of  Counsel. 

But  that  said  Wells,  Anderson,  Kenner,  and  Casanave,  acting  as 
such  returning  board,  in  further  pursuance  and  execution  of  said  un 
lawful  combination  and  conspiracy,  then  and  there  refused  to  permit 
said  United  States  commissioners  of  election  to  be  present  for  the  pur 
pose  aforesaid,  but  proceeded  in  their  absence  to  the  pretended  com 
pilation  and  canvass  aforesaid. 

That  the  said  returning  board,  while  in  session  as  aforesaid,  for  the 
purpose  aforesaid,  to  wit,  on  the  20th  day  of  November,  1876,  adopted 
the  following  rule  to  govern  their  proceedings ;  that  is  to  say : 

IX. 

No  ex  parte  affidavits  or  statements  shall  be  received  in  evidence,  except  as  a 
basis  to  show  that  such  fraud,  intimidation,  or  other  illegal  practice  had  at  some 
poll  requires  investigation,  but  the  returns  and  affidavits  authorized  by  law,  made 
by  officers  of  election  or  in  verification  of  statements  as  required  by  law,  shall  be 
received  in  evidence  as  prima facie. 

But  that  said  board  subsequently,  while  sitting  as  aforesaid,  for 
the  purposes  aforesaid,  having  become  convinced  that  theycouldnot, 
upon  other  than  ex  parte  testimony,  so  manipulate  the  said  compila 
tion  and  canvass  as  to  declare  that  said  Kellogg,  Burch,  Joseph,  Shel 
don,  Marks,  Levissee,  Brewster,  and  Joffrion  were  elected  electors  at 
said  election,  and,  in  further  pursuance  of  said  unlawful  combination 
and  conspiracy,  did  subsequently  modify  said  rule  and  declare  and 
decide  that  as  such  returning  board  they  would  receive  ex  parte  affi 
davits,  under  which  last  decision  of  said  board  over  two  hundred 
printed  pages  of  ex  parte  testimony  was  received  by  said  board  in 
favor  of  said  Kellogg  and  others  ;  and  afterward,  when  the  said  Mc 
Enery  and  others  offered  ex  parte  evidence  to  contradict  the  ex  parte 
evidence  aforesaid,  the  said  return  ing  board  re  versed  its  last  decision 
and  refused  to  receive  ex  parte  affidavits  in  contradiction  as  afore 
said. 

And  that  in  pursuance  of  said  unlawful  combination  and  conspiracy 
the  said  returning  board,  in  violation  of  a  law  of  said  State,  approved 
November  20, 1872,  neglected  and  refused  to  compile  and  canvass  the 
statement  of  votes  made  by  the  commissioners  of  election  which  were 
before  them  according  to  law  for  canvass  and  compilation  as  afore 
said  in  regard  to  the  election  of  presidential  electors,  but  that  said 
board  did,  in  pursuance  and  further  execution  of  said  combination 
and  conspiracy,  canvass  and  compile  only  the  consolidated  statements 
and  returns  made  to  them  by  the  supervisors  of  registration  of  the 
several  parishes  of  said  State. 

And  that  said  returning  board,  in  pursuance  and  further  execution 


ELECTORAL  COMMISSION. 


83 


of  said  unlawful  combination  and  conspiracy,  did  knowingly,  will 
fully,  and  fraudulently  refuse  to  compile  and  canvass  the  votes  given 
for  electors  at  said  election  in  more  than  twenty  parishes  of  said  State, 
as  was  shown  and  appeared  by  and  upon  the  consolidated  statement 
and  return  made  to  them  by  said  supervisors  of  said  parishes. 

And  that  said  returning  board  did,  in  said  canvass  and  compilation, 
count  and  estimate,  as  a  foundation  for  their  determination  iu  the 
premises,  hundreds  of  votes  which  had  not  been  returned  and  certi 
fied  to  them  either  by  the  commissioners  of  election  in  said  State  or 
by  the  supervisors  of  registration  in  said  State,  they,  the  said  mem 
bers  of  said  board,  then and  there  well  knowingthat  they  had  no  right 
or  authority  to  estimate  the  same  for  the  purpose  aforesaid. 

And  that  said  returning  board,  iu  further  pursuance  and  execution 
of  said  unlawful  combination  and  conspiracy,  knowingly,  willfully, 
falsely,  and  fraudulently  did  make  a  certificate  and  return  to  the 
secretary  of  state  that  said  Kellogg,  Burch,  Joseph,  Sheldon,  Marks, 
Levissee,  Brewster,  and  Joffrion  had  received  majorities  of  all  the 
legal  votes  cast  at  said  election  of  November  7,  1876,  for  presidential 
electors,  they  then  and  there  well  knowing  that  the  said  McEnery, 
Wicklifle,  St.  Martin,  Poche",  De  Blanc,  Seay,  Cobb,  and  Cross  had  re 
ceived  majorities  of  all  the  votes  cast  at  said  election  for  presidential 
electors,  and  were  duly  elected  as  the  presidential  electors  of  said 
State. 

And  that  the  said  returning  board,  in  making  said  statement,  cer 
tificate,  and  return  to  the  secretary  of  state,  were  not  deceived  nor 
mistaken  in  the  premises,  but  knowingly,  willfully,  and  fraudulently 
made  what  they  well  knew  when  they  made  it  was  a  false  and  fraud 
ulent  statement,  certificate,  and  return ;  and  that  the  said  false  and 
fraudulent  statement,  certificate,  and  return,  made  by  said  returning 
board  to  the  secretary  of  state  iu  that  behalf,  was  made  by  the  mem 
bers  of  said  returing  board  in  pursuance  and  execution  of,  and  only 
in  pursuance  and  execution  of,  said  uulaAvful  combination  and  con 
spiracy. 

And  that  said  returning  board,  while  in  session  as  aforesaid,  for  the 
purpose  aforesaid,  in  further  pursuance  and  execution  of  said  unlaw 
ful  combination  and  conspiracy,  did  alter,  change,  and  forge,  or  cause 
to  be  altered,  changed,  and  forged,  the  consolidated  statement  and 
return  of  the  supervisor  of  registration  for  the  parish  of  Vernon,  in 
said  State,  in  the  manner  following,  to  wit:  The  said  consolidated 
statement,  as  made  and  returned  to  said  board,  showed  that,  of  the 
legal  votes  given  in  said  parish  for  electors,  at  said  election  of  No 
vember  7,  1876,  said  McEuery  received  647,  said  Wickliffe  received 
647,  said  St.  Martin  received  647,  said  Poche"  received  647,  said  De 
Blanc  received  647,  said  Seay  received  647,  said  Cobb  received  647, 
said  Cross  received  647  ;  and  that  said  Kellogg  received  none,  said 
Burch  received  none,  said  Joseph  received  2,  said  Brewster  received 
2,  said  Marks  received  2,  said  Levissee  received  2,  said  Joffrion  re 
ceived  2,  said  Sheldon  received  2 ;  and  said  board  altered,  changed, 
and  forged,  or  caused  to  be  altered,  changed,  and  forged,  said  consoli 
dated  statement  so  as  to  make  the  same  falsely  and  fraudulently  show, 
that  the  said  McEnery  received  469,  said  Wickliffe  received  469,  said 
St.  Martin  received  469,  said  Poche"  received  469,  said  De  Blanc  re 
ceived  469,  said  Seay  received  469,  said  Cobb  received  469,  said  Cross 
received  469 ;  and  that  said  Kellogg  received  178,  said  Burch  received 
178,  said  Joseph  received  178,  said  Sheldon  received  180,  said  Marks 
received  180,  said  Levissee  received  180,  said  Brewster  received  180, 
said  Joffriou  received  180 ;  and  that  said  returning  board,  while  in 
session  as  aforesaid  for  the  purpose  aforesaid,  to  pretend  to  justify  the 
alteration  and  forgery  of  said  consolidated  statement,  procured  and 
pretended  to  act  upon  three  forged  affidavits,  purporting  to  have 
been  made  and  sworn  to  by  Samuel  Carter,  Thomas  Brown,  and  Samuel 
Collins — they,  the  said  members  of  said  returning  board,  then  and 
there,  well  knowing  that  said  pretended  affidavits  were  false  and 
forged,  and  that  no  such  persons  were  in  existence  as  purported  to 
make  said  affidavits. 

And  that  said  members  of  said  returning  board,  acting  as  said 
board,  in  pursuance  and  execution  of  said  unlawful  combination  and 
conspiracy,  did,  in  their  pretended  canvass  and  compilation  of  the 
legal  votes  given  at  said  election,  on  the  7th  day  of  November,  A.  D. 
1876,  for  presidential  electors  in  said  State  of  Louisiana,  as  shown  to 
them  by  the  statements,  papers,  and  returns  made  according  to  law 
by  the  commissioners  of  election  presiding  over  and  conducting  said 
election  at  the  several  polls  and  voting-places  in  said  State,  all  of 
which  votes  were  legally  cast  by  legal  voters  in  said  State,  at  said 
election,  knowingly,  willfully,  and  fraudulently,  and  without  any 
authority  of  law  whatever,  excluded  and  refused  to  count  and  esti 
mate,  or  compile  or  canvass,  votes  given  at  said  election  for  electors, 
as  follows  ;  which  papers,  statements,  and  returns  were  before  them, 
and  which  it  was  their  duty  by  law  to  compile  and  canvass,  that  is 
to  say,  for  said  John  McEnery,  10,280 ;  for  said  R.  C.  Wickliffe, 
10,293 ;  for  said  L.  St.  Martin,  10,291 ;  for  said  F.  P.  Poche",  10,280 ; 
for  said  A.  De  Blauce,  10,289 ;  for  said  W.  A.  Seay,  10,291 ;  for  said 
E.  A.  Cobb,  10,261 ;  for  said  K.  A.  Cross,  10,288. 

They,  the  said  members  of  said  returning  board,  then  and  there, 
well  knowing  that  all  of  said  votes,  which  they  neglected  and  refused 
to  canvass  and  compile  had  been  duly  and  legally  cast  at  said  election 
for  presidential  electors  by  legal  voters  of  said  State  ;  and  then  and 
there  well  knowing  that  had  they  considered,  estimated,  and  counted, 
compiled  and  canvassed  said  votes,  as  they  then  and  there  well  knew 
it  was  their  duty  to  do  it  would  have  appeared,  and  they  would  have 


been  compelled  to  certify  and  return  to  the  secretary  of  state  that 


been  duly  elected  and  ap- 
pointed  presidential  electors  in  said  State. 

And  that  by  said  false,  fraudulent,  willful,  and  corrupt  acts  and 
omissions  to  act  by  said  returning  board  as  aforesaid  in  the  matter 
aforesaid,  and  by  said  nonfeasance,  misfeasance,  and  malfeasance  of 
said  returning  board,  as  hereinbefore  mentioned,  the  said  returning 


that  himself  and  others  had  been  duly  appointed  electors  for  saiil 
State,  as  hereinbefore  mentioned ;  and  that  said  statement,  certiii- 
cate,  and  return  made  by  said  returning  board,  and  that  the  said  cer 
tificate  made  by  the  said  Kellogg,  as  de  facto  governor,  each,  every, 
and  all  were  made  in  pursuance  and  execution  of  said  unlawful  and 
criminal  combination  and  conspiracy,  as  was  well  known  to  aud  in 
tended  by  each  and  every  of  the  members  of  said  returning  board 
when  they  made  their  said  false  statement,  certificate,  and  return  to 
the  secretary  of  state  of  said  State,  and  by  the  said  Kellogg  when, 
as  governor  de  facto  of  said  State,  he  made  his  said  false  certificate 
hereinbefore  mentioned. 

III.  We  further  oiler  to  prove  that  Oscar  Joffrion  was  on  the  7th 
day  of  November,  A.  D.  1876,  supervisor  of  registration  of  the  parish 
of  Pointe  Coupe'e,  and  that  he  acted  and  officiated  as  such  supervisor 
of  registration  for  said  parish  at  the  said  election  for  presidential 
electors  on  that  day ;  aud  that  he  is  the  same  person  who  acted  as 
one  of  the  electors  for  said  State,  and  on  the  6th  day  of  December, 
A.  D.  1876,  as  an  elector  cast  a  vote  for  Rutherford  B.  Hayes  for  Presi 
dent  of  the  United  States  and  for  William  A.  Wheeler  for  Vice-Presi- 
dent  of  the  United  States. 

IV.  We  further  offer  to  prove  that  on  the  7th  day  of  November,  A. 
D.  1876,  A.  B.  Levisseo,  who  was  one  of  the  pretended  college  of  elect 
ors  of  the  State  of  Louisiana,  and  who  in  said  college  gave  a  vote  for 
Rutherford  B.  Hayes  for  President  of  the  United  States  and  for  Will 
iam  A.  Wheeler  for  Vice-President  of  tho  United  States,  was  at  the 
time  of  such  election  a  court  commissioner  of  the  circuit  court  of  the 
United  States  for  the  district  of  Louisiana ;  which  is  an  office  of 
honor,  profit,  and  trust  under  the  Government  of  the  United  States. 

V.  We  further  offer  to  prove  that  on  the  7th  day  of  November,  A.  D. 
1876,  O.  H.  Brewster,  who  was  one  of  tho  pretended  electors  in  the 
protended  college  of  electors  of  the  State  of  Louisiana,  and  who  iu 
said  college  gave  a  vote  for  Rutherford  B.  Hayes  for  President  of  the 
United  States,  and  for  William  A.  Wheeler  for  Vice-President  of  the 
United  States,  was  at  the  time  of  such  election  as  aforesaid  holding 
an  office  of  honor,  profit,  and  trust  under  tho  Government  of  tho 
United  States,  namely,  the  office  of  surveyor-general  of  tho  land 
office  for  the  district  of  Louisiana. 

VI.  We  further  offer  to  prove  that  on  the  7th  day  of  November, 
1876,  Morris  Marks,  one  of  the  pretended  electors,  who  in  said  college 
of  electors  cast  a  vote  for  Rutherford  B.  Hayes  for  President  of  the 
United  States,  and  a  vote  for  William  A.  Wheeler  for  Vice-Presideut 
of  the  United  States,  was,  ever  since,  has  been,  and  now  is,  holding 
and  exercising  the  office  of  district  attorney  of  the  fourth  judicial 
district  of  said  State,  and  receiving  the  salary  by  law  attached  to 
said  office. 

VII.  We  further  offer  to  prove  that  on  the  7th  day  of  November,  A. 
D.  1876,  J.  Henri  Burch,  who  was  one  of  the  pretended  electors  who 
in  said  pretended  electoral  college  gave  a  vote  for  Rutherford  B.  Hayes 
for  President  of  the  United  States  and  a  vote  for  William  A.  Wheeler 
for  Vice-President  of  tho  United  States,  was  holding  the  following 
offices  under  the  constitution  and  laws  of  said  State ;  that  is  to  say  : 
member  of  the  board  of  control  of  the  State  penitentiary,  also  ad 
ministrator  of  deaf  and  dumb  asylum  of  said  State,  to  both  of  which 
offices  he  had  been  appointed  by  the  governor  with  tho  advice  and 
consent  of  the  senate  of  said  State,  both  being  offices  with  salaries 
fixed  by  law,  and  also  the  office  of  treasurer  of  the  parish  school  board 
for  the  parish  of  East  Baton  Rouge;  and  that  said  Burch,  over  since 
the  said  7th  day  of  November,  (and  prior  thereto,)  has  exercised  aud 
still  is  exercising  the  functions  of  all  said  offices  and  receiving  the 
emoluments  thereof. 

VIII.  We  further  offer  to  prove  the  canvass  and  compilation  actu 
ally  made  by  said  returning  board,  showing  what  parishes  and  voting- 
places  and  polls  were  compiled  and  canvassed,  and  what  polls  or 
voting-places  were  excluded  by  said  returning  board  from  their  can 
vass  and  compilation  of  votes  given  for  presidential  electors ;  and 
we  also  offer  to  show  what  statements  and  returns  of  the  commission 
ers  of  election  and  of  the  supervisors  of  registration  were  duly  bo- 
fore  said  returning  board. 

IX.  We  further  offer  to  prove  that  a  member  of  said  returning 
board  offered  to  receive  a  bribe  in  consideration  of  which  the  board 
would  certify  the  election  of  the  Tilden  electors. 

X.  We  offer  to  prove  that  the  statements  and  affidavits  purporting 
to  have  been  made  and  forwarded  to  said  returning  board  in  pursuance 
of  the  provisions  of  section  26  of  the  election  law  of  1872,  alleging 
riot,  tumult,  intimidation,  and  violence  at  or  near  certain  polls  and 
in  certain  parishes,  were  falsely  fabricated  and  forged  by  certain  dis 
reputable  person  under  the  direction  and  with  the  knowledge  of  said 


84 


ELECTORAL  COMMISSION. 


returning  board,  and  that  said  returning  board,  knowing  said  state 
ments  and  affidavits  to  be  false  and  forged  and  that  110110  of  said 
statements  or  affidavits  was  made  iu  the  manner  or  form  required  by 
law,  did  knowingly,  willfully,  and  fraudulently  fail  and  refuse  to  can 
vass  or  compile  more  than  ten  thousand  votes  lawfully  cast,  as  is 
bhowii  by  the  statements  of  votes  of  the  commissioners  of  election. 

XI.  We  further  oft'er  to  prove  that  said  returning  board  did  willfully 
and  fraudulently  pretend  to  canvass  and  compile  and  did  promulgate 
as  having  been  canvassed  and  compiled  certain  votes  for  the  follow 
ing-named  candidates  for  electors  which  were  never  cast  and  which 
did  not  appear  upon  any  tally-sheet,  statement  of  votes,  or  consolidated 
statement  or  other  return  before  said  board,  namely :  J.  H.  Burch, 
241 ;  Peter  Joseph,  1,362;  L.  A.  Sheldon,  1,364 ;  Morris  Marks,  1,334; 
A.  13.  Levisseo,  821) ;  O.  II.  Brewster,  776  ;  Oscar  JofFriou,  1,364. 

Mr.  EVARTS.  Has  the  Commission  given  any  direction  as  to  the 
length  of  time  for  discussing  the  question  of  adinissibility  ? 

The  PRESIDENT.    I  have  no  instructions  on  the  subject. 

Mr.  Commissioner  EDMUNDS.  I  think  some  time  should  be  fixed. 
There  being  so  many  offers ;  fifteen  minutes  would  hardly  be  suffici 
ent.  There  ought  to  be  soniere  asouable  time. 

The  PRESIDENT.    Does  anyone  submit  a  motion  ? 

Mr.  Commissioner  ABBOTT.  I  should  like  to  know  how  much  time 
the  counsel  would  desire  to  argue  all  these  objections  in  the  mass. 

Mr.  Commissioner  BRADLEY.  I  understood  the  decision  to  be  that 
the  offer  of  evidence  would  come  out  of  the  time  allowed  to  counsel 
on  either  side.  It  was  understood  this  morning  that  the  reading  of 
the  offers  should  not  be  counted  as  part  of  the  time.  That  was  fair ; 
but  I  think  the  presentation  of  the  evidence  is  as  much  a  part  of  the 
presentation  of  the  case  as  the  rest  of  the  argument.  It  seems  to  me 
that  we  are  breaking  our  rules,  if  we  allow  further  time  than  four 
and  a  half  hours  on  each  side. 

The  PRESIDENT.  Let  us  first  hear  the  counsel  answer  the  in 
quiry.  I  think  we  ought  to  have  that  answer. 

Mr.  TRUMBULL.  On  consultation  with  the  gentlemen  with  whom 
I  am  associated,  they  think  that  we  should  have  three  hours  on  each 
side,  an  hour  apiece.  Each  of  the  gentlemen  associated  with  ine 
desires  to  present  his  views;  and  we  think,  as  suggested  by  one  of 
the  Commissioners,  or  at  least  I  do,  that  this  does  involve  to  a  great 
extent  any  argument  that  will  afterward  take  place. 

Mr.  Commissioner  STRONG.  Mr.  President,  I  did  not  understand 
the  order  which  the  court  made  in  regard  to  time,  as  Mr.  Justice 
BRADLEY  understood  it.  I  did  not  understand  the  order  \ve  made  as 
requiring  that  the  time  occupied  in  the  offer  of  evidence,  or  objections 
that  might  be  made  to  its  admissibility,  or  arguments  made  in  sup 
port  of  its  admissibility,  should  be  taken  out  of  the  four  and  a  half 
hours  which  we  agreed  to  allow  for  general  argument  on  each  side. 
I  agree,  sir,  that  in  one  aspect  of  the  case  the  evidence  which  is  offered 
is  substantially  the  whole  case ;  in  another  aspect  of  the  case  it  is 
not.  I  think  counsel  ought  to  be  allowed  a  reasonable  time  for  the 
argument  of  the  question  whether  this  evidence  thus  proposed  is  ad 
missible  or  not.  It  seems  to  me  that  three  hours  on  this  interlocutory 
question  is  rather  large.  I  should  be  willing  to  give  what  we  gave 
in  the  Florida  case,  two  hours.  I  think  counsel  ought  to  be  content 
Avith  that. 

The  PRESIDENT.    Do  you  move  that  ? 

Mr.  Commissioner  STRONG.    I  move  that  two  hours  be  allowed. 

The  PRESIDENT.  Mr.  Commissioner  STRONG  moves  that  counsel 
be  allowed  two  hours  on  a  side  for  the  argument  of  the  question,  of 
the  admissibility  of  the  evidence  offered  and  objections  thereto. 

Mr.  Commissioner  THURMAN.  Mr.  President,  I  cannot  help  saying 
that  it  does  seem  to  me  that  counsel  on  both  sides  would  aid'this 
Commission  in  arriving  with  a  reasonable  degree  of  expedition  and 
not  unreasonable  haste  at  tbe  conclusion  to  which  they  must  arrive 
one  time  or  another,  and  this  whole  thing  should  be  settled  by  letting 
the  evidence  come  in,  subject  to  exception,  and  then  arguing  the 
question.  If  the  four  hours  and  a  half  that  we  have  allowed  are  not 
sufficient  for  that  purpose  because  of  the  introduction  of  the  element 
of  the  competency  or  incompetency  of  the  testimony,  then  that  time 
can  be  enlarged ;  but  to  fritter  our  time  away  with  arguments  upon 
the  admissibility  of  this  point  of  testimony  or  that  particular  item 
of  testimony,  instead  of  treating  this  subject  in  a  large  view  and 
letting  the  testimony  come  in  subject  to  exception  on  both  sides,  and 
then  arguing  its  competency  and  its  relevancy  as  well  as  the  merits 
of  the  case,  seems  to  me  to  be  making  of  this  tribunal  a  court  of 
common  pleas  instead  of  the  tribunal  which  it  is. 

Mr.  Commissioner  EDMUNDS.    Mr.  President 

The  PRESIDENT.  I  will  remark  that  there  is  no  motion  before 
the  Commission  except  that  of  allowing  two  hours  on  a  side  to  the 
counsel  to  argue  the  question.  -Having  permitted  discussion  by  Mr. 
THURMAN,  I  will  also  allow  Senator  EDMUNDS  to  proceed. 

Mr.  Commissioner  EDMUNDS.  That  was  precisely  the  question, 
Mr.  President,  that  I  was  about  to  speak  to.  The  length  of  time  re 
quired  for  the  discussion  of  this  question  depends  on  whether  coun 
sel  are  to  discuss  the  offer  of  testimony  as  a  mere  technical  question 
of  whether  a  particular  species  of  testimony  is  competent  to  prove  a 
particular  fact  that  is  relevant  to  the  matter,  or  whether  the  fact  itself 
proposed  is  one  which  falls  within  the  scope  of  the  consideration  of 
tbo  Commission.  Inasmuch  as  we  understand  from  the  preceding 
case  exactly  how  this  question  arises,  really,  as  Judge  STRONG  has 
said,  in  one  aspect  of  the  case,  the  discussion  of  the  question  of  the 


admissibility  of  this  testimony  and  so  of  its  legal  effect,  or  the  ques 
tion  of  its  materiality  in  point  of  law  covers  the  whole  ground.  If 
therefore  counsel  can  so  manage  as  to  argue  the  whole  subject  pre 
sented  by  this  offer,  as  well  its  materiality  as  the  result  that  must  be 
drawn  from  it  if  the  facts  were  proved,  then  if  the  Commission  should 
be  of  opinion  that  it  was  not  competent  in  its  judgment  to  go  into 
that  species  of  proof,  that  would  be  an  end  of  the  matter.  On  the 
other  hand,  if  the  Commission  should  be  of  opinion  that  it  was  com 
petent  to  go  into  the  proof  or  some  portion  of  it,  of  course  I  am  not 
speaking  of  everything,  then  we  should  have  already  determined  the 
relevancy  and  effect  of  the  facts  if  they  should  be  established  and 
not  counteracted  by  counter-proof,  and  should  have  made,  as  it  ap 
pears  to  me,  more  rapid  progress  than  in  any  other  way. 

The  difficulty  about  taking  proof  provisionally,  as"  I  understand 
the  other  side's  attitude,  is  that  if  you  take  proof  provisionally  on 
the  part  of  the  objectors  to  certificate  No.  1  then  you  must  take 
proof  provisionally  on  the  part  of  those  who  support  certificate  No. 
1,  and  we  at  once,  if  I  correctly  understood  the  statement  of  the  ob 
jectors,  go  into  an  indefinite  period  of  taking  testimony  on  the  part 
of  the  supporters  of  certificate  No.  1  to  prove  that  the  very  circum 
stances  did  exist  under  which,  if  this  law  of  Louisiana  be  constitu 
tional  and  applies  to  this  case,  it  was  the  duty  of  this  board  to  pro 
ceed  to  reject  polls,  and  so  on;  and  they  would  ask  us  on  the  same 
principle  to  waive  for  the  time  being  the  question  as  to  whether  pre 
liminary  steps  had  been  taken  and  to  take  the  evidence  and  then 
consider  whether  it  was  competent  for  this  canvassing  board  to  re 
ceive  evidence  owing  to  a  defect,  in  the  want  of  protest  or  whatever 
it  might  be.  The  result,  therefore,  of  taking  evidence  provisionally 
on  both  sides  (for  we  must  on  both  sides  if  on  either)  would  be  that 
we  might  find  ourselves  at  the  end  of  a  week  or  ten  days  in  the  atti 
tude  of  just  discovering,  as  it  is  possible  we  might — I  express  no 
opinion  about  it  and  have  none  to  express — that  we  had  wasted  all 
this  time  in  going  into  a  range  of  inquiry  that  we  felt,  under  the  law, 
we  had  no  right  to  have  gone  into.  So  I  think  the  rule  which  we 
adopted  in  the  Florida  case  would  be  the  better  one,  to  hear  this  ques 
tion  now  argued  generally  upon  the  effect  of  this  evidence  if  it  should 
be  made  out,  and  the  nature  of  it,  and  what  our  powers  are  and  so 
on,  so  that  we  can  make  definite  progress  in  the  inquiry  and  upon  the 
whole  of  the  case  as  it  would  be  presented  on  this  evidence. 

Mr.  Commissioner  BRADLEY.  That  is  very  much  my  view,  that 
we  should  go  on  and  have  it  argued  as  we  had  the  Florida  case.  It 
might  be  considered  if  not  as  evidence  in,  subject  to  objection,  at  least 
as  evidence  offered  and  demurred  to  on  the  other  side. 

Mr.  Commissioner  STRONG.  We  must  assume  then  that  they  can 
prove  what  they  offer. 

Mr.  Commissioner  BRADLEY.  Certainly.  I  would  add  that  no 
one  can  shut  his  eyes,  it  seems  to  me,  to  the  fact  that  the  discussion 
of  the  admission  of  this  evidence  and  going  into  this  inquiry  is  the 
discussion  of  the  whole  case. 

Mr.  Commissioner  MILLER.  Mr.  President,  I  would  ask  my  brother 
EDMUNDS  and  Mr.  BRADLEY  whether  they  mean  (which  I  think  is  the 
better  course)  to  give  what  time  now  may  be  proper  on  all  the  ques 
tions  in  the  case,  including  the  effect  of  this  evidence,  so  that,  when 
we  retire  for  consultation,  if  we  should  conclude  that  none  of  this 
evidence  is  to  be  admitted,  we  could  then  decide  the  whole  case  with 
out  coming  back  for  another  argument,  giving  counsel  fair  time  to 
argue  all  the  questions  iu  the  case,  including  the  admissibility  of  this 
evidence.  Of  course  if  in  conference  we  determine  to  receive  this 
evidence  we  shall  have  to  come  back,  let  it  be  admitted,  and  let 
counter-evidence  be  admitted,  and  hear  argument  on  its  effect.  If 
not,  can  it  not  be  so  argued  that  when  we  do  retire  on  this  question, 
if  the  evidence  should  be  excluded,  (about  which  I  have  no  idea  what 
the  Commission  will  hold,)  the  law  will  then  have  been  argued  on  the 
other  papers  and  we  shall  be  prepared  to  make  a  decision. 

The  PRESIDENT.  The  only  question  before  the  Commission  is 
the  motion  of  Judge  STRONG  to  allow  two  hours  on  a  side. 

Mr.  Commissioner  EDMUNDS.  I  move  to  amend  that  by  substi 
tuting  the  following  order : 

Ordered,  That  counsel  now  be  heard  on  the  whole  subject  as  the  case  now  stands, 
and  that  three  hours  on  a  side  bo  allowed. 

Mr.  EVARTS.    Three  hours  added  to  what  is  already  allowed  ? 

Mr.  Commissioner  EDMUNDS.    No,  sir ;  three  hours  now. 

Mr.  EVARTS.  We  had  four  and  a  half  hours  on  our  side  yester 
day.  Two  hours  have  been  taken  up  by  the  other  side. 

The  PRESIDENT.    This  is  changing  the  course  of  the  trial. 

Mr.  Commissioner  EDMUNDS.  I  will  modify  my  proposition  on 
the  suggestion  that  part  of  the  time  has  already  been  occupied. 

The  PRESIDENT.    As  modified,  the  order  is  : 

Ordered,  That  counsel  now  bo  heard  on  the  whole  subject  as  the  case  now  stands, 
and  that  four  hours  on  a  side  be  allowed. 

It  makes  no  deduction  of  what  is  past. 

Mr.  Commissioner  THURMAN.  I  should  like  to  have  the  meaning 
of  that  order  explained. 

Mr.  Commissioner  EDMUNDS.  It  means  as  I  suppose  exactly  what 
it  says.  If  I  read  it  to  my  friend  again,  perhaps  he  will  understand  it : 

Ordered,  That  counsel  now  bo  heard  on  the  whole  subject  ae  the  case  now  stands, 
and  that  four  hours  on  a  side  bo  allowed. 

If  I  correctly  understand  the  offer  of  Judge  Trumbull,  which  has 
been  carefully  road  and  is  perfectly  perspicuous  and  understandable, 


ELECTORAL  COMMISSION. 


85 


it  is  that  the  objectors  to  certificate  No.  1  and  the  supporters  of  cer 
tificate  No.  2  propose  to  prove  certain  things.  The  counsel  on  the 
other  Fide  object  to  that  as  irrelevant  and  incompetent  in  this  con 
sideration.  So  that  if  we  now  proceed  on  the  subject  as  the  case 
now  stands,  it  opens  the  effect  of  this  evidence,  as  we  must  take  it  to 
be  capable  of  being  proved  as  a  matter  of  course  as  we  now  argue  it ; 
and  the  whole  duty  of  this  Commission  upon  the  subject,  if  we  de 
cide  that  it  is  not  within  our  power  under  the  law  to  go  into  an  in 
quiry  of  that  kiud,  will  be  disposed  of.  IE  wo  decide  that  it  is  in 
our  power  to  go  into  a  part  of  the  inquiry,  then  we  go  into  it.  If  we 
decide  that  it  is  within  our  power  to  go  into  the  whole  inquiry  we  so 
decide  and  the  evidence  proceeds.  I  think  there  is  no  difficulty  in 
understanding  it. 

Mr.  Commissioner  THURMAN.  I  really  meant  no  disrespect  to 
my  brother ;  but  I  did  nob  understand  it.  If  he  means  four  hours 
on  a  side  to  argue  the  admissibility  of  this  testimony,  it  is  one  thing. 

The  PRESIDENT.    And  its  effect, 

Mr.  Commissioner  THURMAN.  If  he  means  that  the  whole  case  is 
to  be  submitted  after  four  hours  have  been  exhausted  on  each  side, 
then  that  strikes  me  as  a  singular  proposition  for  several  reasons. 
In  the  first  place  one  of  the  sides  lias  already  occupied  two  hours. 
The  proposition  then  would  give  to  them  the  advantage  of  two  hours 
in  the  argument,  give  them  six  hours  instead  of  four. 

But  again  ;  if,  without  deciding  whether  we  have  anything  in  evi 
dence  at  all,  without  counsel  knowing  whether  we  have  anything  in 
evidence  at  all,  we  are  to  fix  a  time  to  have  the  whole  case  submitted 
and  the  argument  finally  closed  and  then  we  retire  and  give  our  final 
decision,  upon  my  word  I  do  not  know  what  kind  of  a  judicial  pro 
ceeding  that  would  be. 

Mr.  Commissioner  MILLER.  Mr.  President,  let  me  suggest  that 
the  proposed  order  does  not  provide  that  we  shall  give  a  final  decision ; 
it  does  not  provide  that  we  shall  give  any  decision  at  all ;  nor  what 
that  decision  shall  be.  It  says  that  we  shall  hear  argument  upon  the 
whole  case  as  it  now  stands,  on  the  effect  of  the  certificates  and  pa 
pers  submitted  by  the  President  of  the  Senate  and  the  effect  of  the 
offer  of  testimony.  It  is  easy  to  see  that  under  such  an  argument, 
whether  it  be  long  or  short,  (and  I  have  nothing  to  say  about  what 
its  length  should  be,)  when  we  retire  if  this  testimony  is  to  be  ad 
mitted,  we  have  got  to  come  back  and  let  it  be  submitted  and  argued  ; 
and  if  it  is  to  be  excluded  then  the  other  question  of  the  effect  of 
the  papers  submitted  and  the  whole  of  the  case  will  have  been  argued 
and  we  can  then  decide  the  whole  case.  That  I  understand  to  bo  the 
purport  and  object  of  the  order.  . 

Mr.  Commissioner  BAYARD.  Mr.  President,  what  is  the  precise 
meaning  of  the  words  "  as  the  case  now  stands,"  if,  as  has  been  said 
by  my  brother  BRADLEY,  the  case  is  to  be  treated  as  if  on  a  demurrer 
to  evidence,  which  considers  the  evidence  before  the  court,  the  effect 
of  it  simply  being  in  question.  If  therefore  this  argument  is  to  pro 
ceed  upon  the  basis  of  the  facts  which  have  been  offered  to  be  proved, 
being  proved  and  before  the  court,  that  is  one  thing.  Then  the  argu 
ment  would  have  for  its  basis  the  law  as  applied  to  the  facts  stated 
by  counsel  here  to  us.  If  that  be  the  understanding,  that  we  are  to 
hear  this  case  as  if  it  were  upon  a  demurrer  to  testimony,  we  know 
what  that  means ;  and  if  after  that  judgment  there  will  be  again 
argument,  in  case  it  is  desired,  with  that  understanding  I  shall  be 
content. 

Mr.  Commissioner  FRELINGHUYSEN.  Mr.  President,  I  should 
like  to  know  from  the  objectors  to  certificate  No.  2  whether  this  time 
is  satisfactory  to  them.  If  it  is  I  shall  vote  for  it.  If  it  is  not,  inas 
much  as  the  other  side  have  already  occupied  two  hours,  I  should 
want  the  rule  made  uniform. 

Mr.  Commissioner  ABBOTT.  Mr.  President,  I  understand,  in  an 
swer  to  the  suggestion  made  by  Senator  BAYARD,  that  this  is  an 
argument  not  only  upon  the  competency  of  the  evidence  offered  as 
upon  a  demurrer  to  evidence,  but  it  is  in  addition  an  argument  upon 
the  whole  case,  so  that  when  this  argument  is  once  made  we  are  to 
decide  the  whole  case  unless  we  admit  the  testimony.  It  is  not  an 
argument  simply  upon  a  demurrer  to  the  testimony/as  to  the  effect 
of  the  testimony,  but  it  is  an  argument  upon  that  and  also  upon  the 
whole  merits  of  the  case  if  there  is  anything  else  outside  of  this  ques 
tion  of  testimony.  Now,  sir,  I  object  for  one  to  mixing  up  the  two 
matters  together.  I  am  content,  as  suggested  by  Judge  STRONG,  to 
take  an  argument  upon  this  offer  of  testimony  as  upon  a  demurrer  to 
testimony.  Let  us  hear  the  effect  of  that  testimony  argued,  whether 
we  will  or  will  not  admit  it ;  and  then  if  we  agree  to  admit  it,  very 
well.  If  we  agree  not  to  admit  it,  let  us  have  the  argument  Upon 
what  is  left  of  this  case,  distinct  and  independent  and  by  itself.  I 
think  the  statement  made  by  Judge  STRONG  on  that  matter  covers  the 
whole  case.  It  is  mixing  up  two  matters  which  necessarily  have  no 
sort  of  connection  with  each  other. 

Mr.  Commissioner  EDMUNDS.  Mr.  President,  that  would  be  true 
if  we  had  unlimited  time,  and  I  should  quite  agree  that  it  would  be 
more  convenient  to  hear  the  precise  point  argued  on  the  offer  of  a 
particular  piece  of  testimony,  just  as  a  court  would ;  but  we  ought  not 
to  forget  that  time  is  running  very  fast  and  we  only  have  a  dozen  or 
thirteen  days  more  within  which  to  dispose  of  this  case  and  every  other 
that  may  come  to  us,  and  that  there  are  twenty-five  States  or  some 
thing  like  that  number  whose  voice  in  this  question  has  not  been  un 
sealed  and  cannot  be  until  a  report  is  made  upon  this  case.  There 
fore,  to  save  time,  it  appears  to  me  that  it  would  be  better  to  argue 


the  case  as  it  now  stands,  upon  the  admissibility  of  this  testimony 
and  upon  the  attitude  the  case  would  occupy  if  the  testimony  were 
not  admitted  in  order  that  in  one  event  we  should  be  able  to  mnko 
proper  and  dilligent  haste  and  not  undue  haste,  and  in  the  other 
event  we  then  should  have  eliminated  difficulties  and  should  be  ready 
to  go  on  with  the  testimony. 

The  PRESIDENT.  I  desire  to  say  one  word.  If  the  order  relate.-* 
only  to  the  evidence  and  its  effect,  I  will  vote  for  it.  If  it  embraces 
not  only  the  offer  of  evidence  and  its  effect,  but  also  the  effect  of  tho 
certificates  and  of  the  evidence  which  accompanies  them  and  all  tho 
other  papers  submitted  to  us,  I  will  vote  against  it. 

Mr.  Commissioner  THURMAN.  Mr.  President,  I  do  not  understand 
what  is  meant  by  speaking  of  a  demurrer  to  evidence  before  this  tri 
bunal.  Do  we  proceed  by  a  demurrer  to  evidence  ?  If  we  do,  we  are 
to  give  judgment  when  we  overrule  that  demurrer;  that  is  an  end  of 
tho  case.  Furthermore,  if  we  proceed  by  the  technical  rules  of  a  de 
murrer  to  evidence,  then  the  party  who  demurs  is  subject  to  every 
possible  inference  and  suggestion  that  can  be  drawn  from  that  testi 
mony — every  one  that  is  possible.  Ho  is  subjected  to  the  disadvan 
tages  of  it.  Is  that  meant  here  ?  What  is  this  but  a  simple  objection 
to  evidence,  not  a  demurrer  to  evidence  ?  I  do  not  understand  that 
these  technical  rules  as  to  demurrers  to  evidence  apply  in  this  caso 
at  all. 

If  the  Commission  think  that  tho  course  pursued  in  the  Florida 
case  ia  the  best  way,  and  will  now  hear  argument  on  the  admissibility 
of  this  testimony  and  then  decide  that  question,  and  if  decided  one 
way,  decided  in  favor  of  the  admissibility,  then  receive  the  testimony, 
and  if  decided  against  it,  then  let  the  argument  take  place  upon  the 
papers  that  have  been  laid  before  us  and  which  all  admit  to  be  in  evi 
dence,  well  and  good.  Then  it  is  only  a  question  of  how  much  time 
should  be  allowed  to  either  side  to  argue  the  question  of  tho  admissi 
bility  of  tho  evidence.  I  am  in  favor  of  a  liberal  time  for  that  pur 
pose  ;  but  I  agree  with  my  brother  ABBOTT  that  if  we  are  to  treat  the 
case  in  that  way,  let  us  keep  tho  questions  separate.  I  think  a  very 
much  better  way  would  be  to  consider  all  the  testimony  in  and 
argue  this  case  on  its  full  merits  with  reference  to  the  competency  of 
the  testimony,  andallowampletimotodo  it;  but  if  that  is  not  agree 
able  to  the  Commission,  then  the  only  other  way  that  I  see  is  to  allow 
a  reasonable  time  to  argue  the  question  of  the  admissibility  of  this 
testimony. 

Mr.  Commissioner  ABBOTT.  I  only  desire  to  say  that  I  used  the 
term  "demurrer  to  evidence"  not  in  its  strictest  technical  sense.  I 
think  the  Senator  from  Ohio  and  myself  do  not  differ  as  to  what  we 
desire.  I  suppose  that  the  argument  of  this  question  of  the  offer  of 
evidence  is  upon  the  objection  to  the  evideuce,  but  it  is  to  be  treated 
precisely  as  if  the  evidence  was  before  us,  and  if  it  was  before  us 
what  would  be  the  effect  of  that  evidence  upon  the  objection  to  the 
evidence  ?  I  only  used  the  term  "  demurrer  to  the  evidence  "  as  a  con 
venient  way  of  expressing  what  I  meant.  God  knows  I  do  not  desire 
to  import  into  this  tribunal  any  technical  rules  and  count  in  or  count 
out  a  President  of  the  United  States  upon  a  technical  rule. 

Mr.  EVARTS.  Mr.  President,  I  have  been  anticipated  in  a  great 
part  by  the  observations  that  have  fallen  from  Mr.  Commissioner 
THURMAN.  I  wished  to  guard  against  any  implication  by  our  silence 
that  we  assented  to  the  position  of  counsel  who  were  objecting  to  tho 
admissibility  of  evidence  as  being  equivalent  to  that  of  counsel  who 
admitted  the  evidence  and  demurred  toats  effect.  We  certainly  do 
not  intend  to  place  ourselves  in  the  position  of  treating  tho  evidence 
as  if  already  in  and  arguing  then. 

The  PRESIDENT.  In  arguing  the  question,  must  we  not  proceed 
on  the  ground  that  those  who  offer  it  can  prove  it  ? 

Mr.  EVARTS.  Undoiibtedly,  and  then  you  determine  whether  it 
is  admissible. 

The  PRESIDENT.    That  is  the  exact  state  of  the  case. 

Mr.  EVARTS.  That  is  the  situation  ;  but  a  demurrer  to  evidence 
concedes  it  to  be  already  in  and  says,  "What  happens  then  ?"  Wo 
wish  to  guard  against  that  implication  and  simply  that.  Now,  in 
regard  to  the  question  that  Mr.  Commissioner  FRELINGIITTYSEX  put, 
to  us,  it  certainly  would  seem  to  enlarge  a  little  the  area  of  argument 
imposed  upon  us  when,  in  addition  to  what  was  supposed  to  be  the  duty 
imposed  upon  counsel  when  four  and  a  half  hours  were  allowed  to  each 
side,  there  is  now  by  introduction  of  this  offer  of  evidence  a  somewhat 
separate  consideration.  But  we  agree  entirely  on  our  part  to  tho 
method  suggested  of  hearing  the  question  of  tho  admissibility  of 
the  evidence  and  then  also  the  question  of  what  would  be  the  result 
if  it  were  excluded  and  the  certificates  opened  by  the  President  of 
the  Senate  were  the  only  matters  before  the  Commission.  The  argu 
ment  of  both  may  properly  proceed  together ;  so  that  if  the  Commis 
sion,  retiring  from  that  completed  argument,  should  hold  that  this 
evidence  was  to  be  excluded  and  that  all  tho  evidence  before  them 
was  included  in  the  certificates  opened  by  the  President  of  the  Senate, 
it  would  have  heard  the  argument  on  that  subject. 

The  PRESIDENT.  The  question  is  on  the  order  submitted  by  Sen 
ator  EDMUNDS  : 

Ordered,  That  counsel  now  be  heard  on  the  whole  subject-as  the  case  now  staudn, 
and  that  four  hours  on  a  side  be  allowed. 

Mr.  Commissioner  PAYNE.  Mr.  President,  I  am  very  much  opposed, 
as  one  member  of  the  Commission,  to  that  order.  There  are  eleven 
or  twelve  propositions  stated  by  counsel  of  what  they  propose  to 
prove  ;  and  under  the  rules  of  this  Commission  one  counsel  on  a  side 


86 


ELECTORAL  COMMISSION. 


can  be  heard  on  each  one  of  those  propositions  for  fif teeen  minutes. 
That  would  make  more  time  than  we  now  propose  by  this  motion  to 
allow  for  the  argument  of  the  merits  as  well  as  the  argument  of  the 
interlocutory  question.  I  do  not  understand  the  reason  or  the  pro 
priety  of  compelling  counsel  to  argue,  upon  this  first  proposition  as  to 
the  admissibility  of  evidence,  the  other  questions  presented  in  the  case, 
to  wit,  the  constitutionality  of  some  of  these  laws.  They  are  entitled 
to  three  hours  to  discuss  the  interlocutory  questions.  Now,  after  this 
statement  of  counsel  that  they  require  the  three  hours  for  the  discus 
sion  of  these  questions,  to  require  them  within  the  same  time  to  dis 
cuss  the  other  questions  pertaining  to  the  constitutionality  of  these 
laws — some  three  or  four  distinct  propositions  made  in  the  statement 
of  counsel — appears  to  mo  grossly  unjust  and  grossly  unfair  toward 
the  counsel  who  prosecute  this  case.  I  hope  therefore  that  the  Com 
mission  will  not  so  regard  the  pressing  necessity  of  urgent  haste,  on 
the  supposition  made  by  Senator  EDMUNDS  that  there  are  sprue  twenty 
or  thirty  cases  yet  behind  this,  as  a  reason  for  inflicting  this  unjust  re 
quisition  on  counsel.  I  hope  therefore  that  the  Commission  will  not 
adopt  that  resolution,  but  will  confine  it  to  interlocutory  questions. 

Mr.  Commissioner  MOETON.  Mr.  President,  in  view  of  the  very 
few  days  left  I  shall  be  compelled  to  vote  against  any  extension  of 
time  and  that  we  proceed  under  the  rule  as  it  now  stands.  The  order 
seems  to  me  to  bo  unequal  in  its  character  and  in  effect  to  give  six 
hours  to  one  side  and  four  hours  to  the  other.  It  seems  to  me  that  the 
ordinary  way  is  the  best  way:  first,  let  the  question  of  the  admissibility 
of  the  evidence  be  taken  up  and  discussed  fan  d  if  it  should  bo  de 
cided  to  admit  all  of  it  or  to  admit  none  of  it,  then  the  effect  of  that 
which  is  admitted,  what  it  proves,  will  bo  discussed.  As  far  as  I  am 
concerned  I  prefer  to  adhere  to  the  rule  as  it  now  stands. 

Mr.  Commissioner  ABBOTT.  Mr.  President,  as  I  understand,  pro 
ceeding  with  this  case  as  the  rule  now  stands  would  be,  as  suggested  by 
Mr.  Commissioner  PAYNE,  to  give  fifteen  minutes  on  each  single  propo 
sition,  and  if  we  are  to  act  upon  that  I  do  not  see  that  it  can  be  pre 
vented.  Then  if  we  have  required,  as  we  have,  the  counsel  to  present 
their  objections  all  in  a  mass  instead  of  separately,  I  do  not  see  how 
we  can  say  to  them,  "  You  shall  expend  your  fifteen  minutes  upon  one 
proposition,"  but  they  may  take  the  whole  time  it  seems  to  me  upon 
the  whole  mass.  We  have  massed  the  propositions,  the  offers  of  evi 
dence,  and  why  not  consolidate  and  mass  the  time  ? 

Mr.  Commissioner  EDMUNDS.  May  I  ask  Judge  ABBOTT,  suppos 
ing  exactly  the  same  principle  applied  to  two  propositions  and  two 
offers  of  evidence,  would  you  hold  that  having  heard  one  discussion 
of  fifteen  minutes  and  decided  it  you  could  hear  the  judgment  of  the 
tribunal  discussed  over  again  on  the  next  one, which  was  exactly 
like  it? 

Mr.  Commissioner  ABBOTT.    No,  sir. 

Mr.  Commissioner  EDMUNDS.  Then  it  would  not  follow  that  the 
whole  twelve  would  take  up  fifteen  minutes  each. 

Mr.  Commissioner  ABBOTT.  I  do  not  understand  that  the  decis 
ion  of  one  offer  of  evidence  necessarily  decides  all  the  others.  I  do 
not  understand  that  counsel  are  to  discuss  over  again  the  judgment 
of  the  tribunal  that  has  once  been  made ;  but  if  you  will  be  kind 
enough,  Mr.  President,  to  read  the  order  again,  I  desire  to  move  an 
amendment. 

The  PRESIDENT.    I  will  read  5 1  agai  u . 

Ordered,  That  counsel  now  be  beard  ou  the  whole  subject  as  the  case  now  skimls, 
and  that  four  hours  oil  a  side  be  allowed. 

Mr.  Commissioner  STRONG.  If  Judge  ABBOTT  will  permit  me,  I 
understand  that  to  be  an  amendment  offered  to  the  order  which  I 
moved.  My  motion  was  that  counsel  be  allowed  two  hours  on  each 
side  to  argue  the  question  of  the  adniissibility  or  iuadumsibility  of 
the  evidence  offered. 

The  PRESIDENT.  I  will  state  the  question.  The  motion  made  by 
Judge  STRONG  is  that  two  hours  be  allowed  on  a  side  to  argue  the 
question  of  the  adniissibility  of  the  testimony  offered.  Mr.EDMUNDs's 
proposition  is  in  the  nature  of  a  motion  to  strike  that  out  and  insert — 

Ordered,  That  counsel  now  be  hoard  on  the  whole  subject  as  the  case  now  stands, 
and  that  four  hours  bo  allowed  on  a  side. 

The  question  is  upon  striking  out  and  inserting. 

Mr.  Commissioner  HOAR.  Mr.  President,  it  seems  to  mo  that  it  is 
very  obvious  that  this  is  not  the  ordinary  question  of  presenting 
evidence  in  a  court  on  an  issue  framed.  The  prime  question,  we  all 
know,  which  lies  at  the  foundation  of  this  whole  discussion  is  this: 
is  the  constitutional  power  vested  in  the  two  Houses,  or  cither  of 
them,  by  the  provision  that  they  shall  be  present  at  the  opening  of 
the  certificates,  to  hear  evidence  to  impeach  those  certificates  ?  If 
that  power  be  vested  in  the  two  Houses,  and  through  them  in  this 
Commission,  then  there  may  come  up  the  ordinary  questions  of  detail 
as  to  the  evidence  Avhich  is  to  be  introduced,  its  competency,  and  its 
force.  If  that  power  be  not  vested  in  the  two  Houses,  and  through 
them  in  the  Commission,  then  to  ask  them  to  exercise  it  is  to  ask 
them  to  do  exactly  what  is  imputed  as  a  crime  to  the  officers  whose 
action  is  now  laid  before  the  Commission,  to  wit,  to  usurp  power  to 
redress  what  we  fancy  to  be  a  public  wrong.  That  one  question  can 
not  be  separated  from  the  question  of  the  adrnissibility  of  the  evidence. 
If  the  evidence  be  inadmissible,  it  is  inadmissible  in  consequence  of 
one  view  of  that  question.  If  it  bo  admissible,  it  is  admissible  in 
consequence  of  another  view  of  that  question.  It  seems  to  me,  there 
fore,  that  the  amendment  proposed  by  Senator  EDMUNDS  brings  up 


practically  what  we  already  know  is  and  must  bo  brought  up  practi 
cally  in  the  mind  of  the  Commission  in  any  form  of  the  discussion. 

The  PRESIDENT.  The  question  is  upon  striking  out  the  motion 
made  by  Judge  STRONG  and  inserting  the  one  made  by  Senator  ED 
MUNDS. 

Mr.  Commissioner  GARFIELD.  I  wish  to  make  a  single  remark. 
The  proposition  of  Judge  STRONG  proceeds  upon  the  supposition, 
which  is  the  fact,  that  our  order  of  last  night,  which  is  partially  ex 
ecuted,  has  been  arrested  by  an  interlocutory  question.  The  order 
last  night  was  that  we  should  proceed  to  hear  counsel  four  and  a  half 
hours  on  each  side,  and  as  far  as  anything  before  us  then  was  con 
cerned,  it  was  on  the  final  question.  That  order  is  partly  executed  ; 
two  hours  have  been  consumed  on  one  side  ;  but  we  are  now  arrested 
by  an  interlocutory  question  of  the  oft'er  of  proof  and  the  admissibility 
of  evidence.  It  seems  to  me  much  the  plainest,  much  the  easiest 
mode  to  arrest  our  progress  here  and  hear  that  question  argued,  as 
Judge  STRONG  moves,  for  two  hours  on  a  side.  That  being  settled, 
we  proceed  to  execute  the  other  order  which  has  half  been  executed 
by  hearing  argument  for  two  hours  on  one  side ;  two  hours  and  a  half 
more  are  to  be  heard  on  that  side  and  four  and  a  half  on  the  other, 
and  that  closes  it.  I  shall  vote  against  the  amendment  and  in  favor 
of  Judge  STRONG'S  motion. 

Mr.  Commissioner  THURMAN.  I  wish  there  may  be  no  misunder 
standing  as  to  the  effect  of  this  amendment  or  substitute.  As  I  un 
derstand  it  it  is  this,  that  after  four  hours  of  argument  on  each  side 
the  Commission  shall  go  into  consultation ;  if  they  decide  against 
receiving  the  testimony,  then  without  further  argument  they  shall 
proceed  to  decide  the  case.  1  hope  that  that  will  bo  understood.  That 
is  the  proposition. 

Mr.  Commissioner  EDMUNDS.    That  is  as  I  understand  it. 

Mr.  Commissioner  THURMAN.  That  wo  hear  eight  hours'  argu 
ment,  four  on  a  side,  and  then  go  into  consultation.  Then  if  the 
decision  be  to  receive  the  testimony,  we  come  into  open  session  again 
and  hear  it,  and  then  argument  follows,  as  a  matter  of  course.  If  we 
decide  not  to  receive  it,  then  without  any  further  argument  we  decide 
the  whole  case.  That  is  the  proposition  in  substance.  I  rather  in 
cline  to  think  that  the  course  suggested  by  Mr.  Justice  STRONG  is 
better  than  that,  provided  the  time  be  extended.  I  do  not  believe 
that  the  admissibility  of  this  testimony  can  be  argued  on  either  side 
within  two  hours,  and  therefore  as  it  is  in  order  to  move  to  perfect 
the  original  motion  before  a  substitute  is  voted  on,  I  move  to  strike 
out  "  two  "  in  Judge  STRONG'S  motion  and  insert  "  four." 

Mr.  Commissioner  GARFIELD/    Only  three  are  asked  for. 

Mr.  Commissioner  TIIURMAN.    Three,  then,  I  will  say. 

The  PRESIDENT.  The  first  question  is  on  perfecting  the  motion 
of  Judge  STRONG  by  striking  out  "two"  and  inserting  "  three"  as  the 
number  of  hours.  The  question  is  on  that  amendment. 

Mr.  Commissioner  PAYNE  called  for  the  yeas  and  nays;  and  being 
taken,  they  resulted — yeas  7,  nays  8 ;  as  follows : 

Those  who  voted  in  the  affirmative  were :  Messrs.  Abbott,  Bayard, 
Clifford,  Field,  Hunton,  Payne,  and  Thurmau— 7. 

Those  who  voted  in  the  negative  were:  Messrs.  Bradley,  Edmunds, 
Frelinghuysen,  Garfield,  Hoar,  Miller,  Morton,  and  Strong — 8. 

So  the  amendment  was  not  agreed  to. 

The  PRESIDENT.  The  question  recurs  on  the  substitute  striking 
out  all  after  the  word  "  ordered  "  in  Judge  STRONG'S  proposition  and 
inserting  the  substitute  of  Senator  EDMUNDS. 

Mr.  Commissioner  PAYNE  called  for  the  yeas  and  nays;  and  being 
taken,  they  resulted — yeas  4,  nays  11 ;  as  follows : 

Those  who  voted  in  the  affirmative  were :  Messrs.  Edmunds,  Freling- 
hnyseu,  Hoar,  and  Miller — 4. 

Those  who  voted  in  the  negative  were :  Messrs.  Abbott,  Bayard, 
Bradley,  Clifford,  Field,  Garfield,  Huntou,  Morton,  Payne,  Strong, 
and  Thurman — 11. 

So  the  amendment  was  rejected. 

The  PRESIDENT.  The  question  recurs  on  the  motion  of  Judge 
STRONG  that  counsel  be  allowed  two  hours  on  each  side  to  argue  the 
question  of  the  admissibility  of  the  offers  of  evidence. 

The  motion  was  agreed  to. 

Mr.  EVARTS.  Mr.  President,  wo  understand  upon  our  part,  and  it 
is  important  that  wo  should  not  misunderstand  at  this  stage  of  the 
matter,  that  when  the  two  hours  have  been  consumed  by  each  side  on 
this  interlocutory  matter  of  the  introduction  of  evidence,  the  order  of 
yesterday  proceeds  to  bo  executed  by  two  hours  and  a  half  being  al 
lowed  to  the  other  side  on  the  merits  and  four  and  a  half  hours  to  us. 

The  PRESIDENT.  That  is  my  understanding,  unless  the  Commis 
sion  otherwise  direct. 

Mr.  EVARTS.  The  pertinency  of  this  suggestion  will  be  seen  when 
I  state  what  I  was  proceeding  to  ask  in  our  behalf;  that  is,  we  might 
be  of  opinion  that  the  argument  in  full  and  satisfactorily  in  point  ot 
time  of  this  interlocutory  question  might  well  be  expected  to  shorten 
our  final  argument  upon  the  merits ;  we  might  be  allowed  to  take  an 
hour  from  the  four  and  a  half  on  the  merits,  lessening  our  time  in  that 
behalf,  to  speak  on  the  interlocutory  question. 

The  PRESIDENT.    There  is  no  such  power  in  the  Chair. 

Mr.  EVARTS.  If  the  Commission  should  retire  at  the  end  of  two 
hours'  argument  nothing  in  supplement  to  that  would  proceed  from 
our  general  discussion  of  the  case,  while  our  opponents  have  had  two 
hours  of  general  discussion  of  the  case  in  aid  of  the  considerations 
they  are  now  presenting. 


ELECTORAL  COMMISSION. 


87 


Tho  PRESIDENT.  The  present  decision  of  the  Commission  is  that 
two  hours  be  allowed  on  a  side  to  discuss  the  question  of  the  admis- 
sibility  of  the  proof  offered.  When  that  is  concluded,  unless  the  Com 
mission  decide  to  retire  (on  which  the  Chair  will  not  make  any  de 
termination)  the  question  then  will  be  the  execution  of  the  former 
order,  which  has  been  in  part  executed. 

Mr.  CAMPBELL.  Allow  me,  Mr.  President,  to  make  a  remark.  I 
have  the  same  opinion  that  was  expressed  by  one  of  the  honorable 
members  of  the  Commission,  that  the  whole  merits  of  this  case  will  be 
involved  in  the  question  of  the  admissibility  of  this  evidence,  because 
in  the  question  of  admissibility  is  involved  the  question  of  the  effect ; 
and  therefore  I  agree  with  the  suggestion  of  counsel  on  the  other  side 
that  if.  we  find  it  necessary  to  discuss  the  question  of  admissibility 
at  greater  length  than  the  two  hours  wo  be  allowed  to  contiuiie  the 
discussion  and  subtract  the  time  so  consumed  from  the  four  and  a  half 
hours  allowed  us  on  the  merits. 

The  PRESIDENT.    That  is  for  the  Commission,  not  for  the  Chair. 

Mr.  EVARTS.  The  Commission  will  see  the  great  disparity  in  the 
position  of  the  counsel  for  the  two  sides.  Two  hours  have  been  oc 
cupied  already  in  discussing  the  general  merits  of  the  case  which 
involve  all  this  question  of  admissibility.  Now,  they  are  to  have  two 
hours  to  discuss  the  specific  question.  We  are  to  have  but  two  hours 
to  discuss  the  specific  question,  and  then  the  Commission  may  retire 
upon  that  disparity  of  argument  and  preclude  us  from  further  argu 
ment. 

Mr.  Commissioner  BRADLEY.  Mr.  President,  I  voted  for  two  hours 
for  a  side  on  this  question  in  consequence  of  the  amount  of  time 
still  left  to  discuss  the  main  question  ;  but  the  proposition  now  made 
by  counsel  on  both  sides  seems  to  me  to  be  a  veryfair  one,  that  either 
side  may  take  so  much  of  their  remaining  time  as  they  consider  neces 
sary  in  the  discussion  of  this  question  of  the  admissibility  of  the  evi 
dence,  and  I  move  that  they  be  permitted  to  do  so. 

Several  MEMBERS.    That  is  right. 

The  PRESIDENT.  The  motion  of  Justice  BRADLEY  is  that  counsel 
may  take  such  time  as  they  desire,  if  any,  from  the  time  previously 
allowed,  four  and  a  half  hours,  and  employ  it  in  the  discussion  of  the 
question  of  the  admissibility  of  the  proofs,  in  addition  to  the  two 
hours  already  allowed.  The  question  is  on  that  motion. 

The  motion  was  agreed  to. 

The  PRESIDENT.  In  the  absence  of  any  direction  from  the  Com 
mission,  the  Chair  rules  that  the  objectors  to  the  offers  of  proof  open 
and  close. 

Mr.  EVARTS.  That  is  the  opposite  order  to  that  which  was 
adopted  on  the  former  discussion. 

The  PRESIDENT.  Certainly ;  but  it  is  the  rule  in  court  and  I  adopt 
that  rule  in  the  absence  of  any  direction  from  the  Commission.  The 
objectors  to  evidence  always  speak  first. 

Mr.  Commissioner  EDMUNDS.  In  the  Florida  case  it  was  exactly 
the  other  way.  I  do  not  know  what  would  be  more  convenient  to 
counsel. 

Mr.  EVARTS.  We  had  expected  that  the  course  pursued  in  the 
Florida  case  would  have  proceeded  here ;  we  had  no  intimation  of  a 
change. 

Mr.  Commissioner  EDMUNDS.  I  move  then  that  those  who  offer 
the  proof  shall  have  the  opening  and  the  close. 

The  PRESIDENT.  The  question  is  on  the  motion  of  Senator  ED 
MUNDS. 

Mr.  Commissioner  MILLER.  If  the  counsel  on  both  sides  wish 
that,  there  can  be  no  objection  to  it. 

Mr.  Commissioner  GARFIELD.  If  counsel  can  agree  on  that  I 
should  prefer  that  they  should  decide  it.  I  think  if  they  can  make 
a  choice  themselves  they  ought  to  be  permitted  to  do  it. 

Mr.  TRUMBULL.  We  supposed  it  properly  came  from  the  ob 
jectors,  but  upon  that  we  are  entirely  willing  to  submit  to  the  Com 
mission.  We  are  willing  to  open  ourselves. 

The  PRESIDENT.  Very  well,  then  there  is  no  need  of  a  vote.  If 
you  are  agreed,  the  counsel  making  the  offer  of  proof  will  open,  but 
the  rule  in  court  is  always  the  other  way. 

Mr.  TRUMBULL.  Mr.  President,  and  gentlemen  of  the  Commis 
sion 

Mr.  Commissioner  EDMUNDS.  Before  Judge  Trumbull  begins,  as 
we  shall  have  to  sit  quite  late,  I  move  that  we  now  take  a  recess  for 
thirty  minutes. 

The  motion  was  agreed  to ;  and  the  Commission  took  a  rece?s. 

The  Commission  re-assembled  at  one  o'clock  and  four  minutes 
p.  m. 

Mr.  TRUMBULL.  Mr.  President  and  gentlemen,  under  the  ruling 
of  the  Commission,  we  are  brought  face  to  face  with  the  question 
whether  a  President  of  the  United  States  is  to  be  made  by  forgery 
and  conspiracy  on  the  part  of  the  officials  whose  duty  it  is  to  certify 
the  electoral  vote  of  a  State ;  aud  it  is  submitted  to  this  Commission 
boldly  aud  badlly  to  decide  that  question.  The  power  rests  nowhere 
else.  There  is  no  tribunal  in  this  land,  judicial  or  otherwise, 
that  can  inquire  into  this  matter  except  this  Commission  ;  and  when 
I  speak  to  this  Commission  I  consider  myself  as  addressing  the  two 
Houses  of  Congress  assembled  together  for  the  purpose  of  counting 
the  electoral  votes  from  the  various  States. 

Is  it  true  that  the  great  Republic,  founded  by  the  wisest  men  and 
the  purest  patriots,  has  made  no  provision  against  the  inauguration 
of  its  Chief  Magistrate  by  fraud,  corruption,  and  forgery  1  Is  that 


the  condition  to  which  the  people  of  this  great  country  are  reduced  1 
Is  this  our  boasted  freedom  f  Is  this  our  great  American  system  that 
has  no  power  to  protect  the  seat  occupied  by  Washington  and  Lin 
coln  from  being  rilled  by  a  person  who  goes  to  it  through  the  forgery, 
fraud,  and  conspiracy  of  those  who  certify  to  the  election  and  there 
by  thwart  the  will  of  the  people  1  I  confess  myself  humiliated  that 
as  a  citizen  of  this  Republic,  in  which  we  all  take  so  much  pride,  I 
am  called  upon  to  argue  such  a  question  before  a  national  tribunal. 

In  my  judgment,  there  has  been  a  very  great  misconception  in  re 
gard  to  the  powers  of  this  Commission.  It  is  neither  a  canvassing 
board,  with  the  powers  usually  given  to  persons  who  are  to  determine 
who  is  elected  constable  in  some  small  town,  nor  is  it  a  judicial  tri 
bunal  ;  but  it  is  the  representative  of  bothllousesof  the  Congress  of  the 
United  States,  vested  with  power  to  go  to  the  bottom  and  investigate 
any  question  that  the  two  Houses  have  a  right  to  consider.  Parlia 
mentary  law,  the  rules  and  methods  of  proceeding  by  legislative  as 
semblies,  are  as  well  established  as  the  rules  of  proceedings  of  the 
common  law. 

You  are  sitting  here  as  legislators  to  decide  a  political  question, 
hampered  by  no  technical  rules  of  evidence,  but  having  authority 
conferred  upon  you  by  the  organic  act  and  by  parliamentary  law  to 
inform  yourselves  upon  any  question  that  you  have  a  right  to  con 
sider. 

It  has  been  settled,  and  is  not  now  to  be  questioned,  that  the  two 
Houses  of  Congress  are  to  count  the  electoral  vote  and  you  now  rep 
resent  those  two  Houses.  The  question  has  arisen  and  has  been  sub 
mitted  to  you  as  to  how  many  and  what  votes  shall  be  counted  from 
the  State  of  Louisiana,  and  there  is  submitted  to  you  not  only  that 
question,  but  the  law  of  your  organization  declares  that  all  questions 
"  upon  or  in  respect"  to  the  double  returns  from  that  State  have  been 
submitted  to  your  consideration. 

Is  this  tribunal  a  lie  and  a  cheat,  to  defraud  the  American  people  1 
When  the  act  passed  creating  it,  there  was  great  satisfaction  through 
this  whole  country.  We  were  thought  by  some  to  be  upon  the  verge 
of  civil  war.  There  was  great  danger  of  collision  in  the  country,  of 
the  inauguration  of  two  Presidents,  and  the  consequences  were 
dreaded  by  every  well-wisher  to  his  country.  When  the  act  passed 
creating  this  Commission  it  was  felt  that  whatever  might  be  its  de 
cision,  it  would  receive  the  sanction  of  the  whole  people  ;  for  how 
ever  much  partisans  of  one  candidate  or  the  other  might  bo  disap 
pointed,  all  good  men  felt  that  it  was  vastly  more  important  that 
whoever  succeeded  to  the  Presidency  should  succeed  as  the  legitimate 
choice  of  the  people,  than  that  any  particular  man  should  be  installed 
by  fraud. 

Is  it  to  turn  out  that  this  Commission  was  formed  for  the  mere  pur 
pose  of  doing  a  sum  in  arithmetic,  of  adding  up  certain  figures  % 
When  it  was  said  to  the  country  that  it  was  to  decide  "  all  questions 
upon  or  in  respect  to  such  double  returns,"  did  it  mean  nothing  more 
than  that  yon  should  compute  the  number  of  votes  appearing  on  tho 
returns?  When  the  oath  was  taken  "to  examine  and  consider  all 
questions  submitted,"  did  that  mean  that  you  were  simply  to  add 
up  a  set  of  figures  ?  Do  "  examination  and  consideration  "  apply  to  a 
mere  mathematical  proposition  of  that  kind  ? 

But  you  are  required  by  the  law  to  proceed  to  consider  the  objec 
tions  and  to  decide  what  ?  To  decide  "  whether  any  and  what  votes 
from  the  State  of  Louisiana  are  the  votes  provided  by  the  Constitu 
tion,  and  how  many  and  what  persons  were  duly  appointed  electors 
in  that  State."  Can  you  consider  how  many  and  what  persons  were 
duly  appointed  electors  in  the  State  of  Louisiana  without  inquiring 
whether  the  certificate  that  is  read  here  is  a  forgery  or  the  result  oi: 
forgery  and  a  conspiracy  ?  We  offer  to  prove  that  William  P.  Kellogg 
whose  certificate  is  bei'ore  you  was  a  conspirator  with  others  fraud 
ulently  to  alter  the  return  of  the  election  and  that  his  certificate  is 
false.  We  offer  to  prove  that  the  canvassing  board,  upon  which  his 
certificate  was  based,  through  its  president,  offered  the  vote  of  tho 
State  fdr  sale  in  the  markets  of  the  country,  and  are  you  only  hero 
to  count  that  vote  ?  Is  there  a  man  in  America  fit  to  bo,  I  will  not 
say  President,  but  fit  to  be  a  constable,  that  would  take  office  through 
such  a  source  ?  What  the  country  wants  is  a  decision  of  the  ques 
tion  as  to  who  is  duly  elected  ?  With  that  the  country  will  bo  satis 
fied,  and  with  nothing  else. 

I  said  you  were  clothed  with  power  to  investigate  this  subject,  be 
cause  it  is  submitted  for  your  consideration,  and  I  beg  leave  to  refer 
to  an  elementary  book  for  authority  for  what  I  have  said.  In  Gush- 
ing's  Law  and  Practice  of  Legislative  Assemblies,  at  page  253,  sec 
tion  634,  it  is  said: 

It  has  always,  at  least  practically,  been  considered  to  be  the  right  of  legislative 
assemblies  to  call  upon  and  examine  all  persons  within  their  jurisdiction  as  wit 
nesses  in  regard  to  subjects  in  reference  to  which  they  have  power  to  act  and  into 
which  they  have  already  instituted,  or  are  about  to  institute  an  investigation. 
Hence  they  are  authorized  to  summon  and  compel  tho  attendance  of  all  persons 
within  tho  limits  of  their  constituency,  as  witnesses,  and  to  bring  with  thorn 
papers  and  records,  in  the  same  manner  as  is  practiced  by  courts  of  law. 

At  page  295,  section  747,  of  the  same  w  ork,  it  is  said : 
In  addition  to  what  may  properly  bo  called  evidence,  namely,  that  which  is  ob 
tained  by  means  of  an  inquiry  instituted  by  the  House  or  brought  forward  by  a 
party,  ail  the  information  of 'every  description  which  in  any  way  conies  into  tho 
possession  of  the  House  may  be  regarded  as  evidence.  Messages  from  the  Execu 
tive,  either  at  the  commencement  or  in  the  course  of  the  session,  documents  from 
the  same  source,  returns  from  public  officers  or  commissioners,  either  in  pursuance- 
of  law  or  of  the  orders  of  the  House,  constitute  evidence  upon  which  legislative 
proceedings  may  be  founded. 


88 


ELECTORAL  COMMISSION. 


These  are  the  usual  modes  of  obtaining  evidence  by  legislative 
bodies,  and  they  are  as  well  established  as  the  rules  by  which  testi 
mony  is  obtained  in  courts  of  law.  Have  you  then  authority  to  pass 
upon  the  question  submitted  to  you  as  to  which  of  these  returns  from 
the  State  of  Louisiana  is  the  proper  return  ?  Have  you  authority  to 
pass  upon  the  questions  submitted  to  yon  in  respect  to  those  returns? 
Have  you  authority  to  determine  "  how  many,  and  if  any,  what  per 
sons  were  duly  appointed  electors  in  the  State  "  of  Louisiana  ?  If  you 
have  power  to  make  that  inquiry,  you  are  bound  by  parliamentary 
law,  you  are  bound  by  the  oath  imposed  upon  you,  you  are  bound  by 
the  proceedings  of  legislative  bodies  as  old  as  the  existence  of  par 
liaments  to  investigate  this  question  ;  and  will  you  say  that  you  will 
not  receive  this  testimony  that  you  yourselves  have  been  two  months 
in  obtaining  ?  The  Senate  sent  its  committees  to  Louisiana,  and  the 
House  sent  its  committees  to  Louisiana,  and  these  committees  have 
taken  a  mass  of  testimony,  which  now  lies  before  you,  and  we  are 
prepared  with  that  testimony  taken  according  to  the  rules  of  legis 
lative  assemblies  to  establish  the  facts  we  allege.  I  call  upon  gen 
tlemen  on  the  other  side  to  show,  if  they  can,  that  the  power  of  a  leg 
islative  body  does  not  extend  to  any  investigation  it  thinks  proper  to 
make  in  regard  to  a  question  submitted  to  its  consideration. 

What  is  this  State  of  Louisiana  that  has  sent  here  these  double  re 
turns  oneof  which  is  just  as  goodas  the  other?  Both  these  returns  come 
hero  signed  by  an  acting  governor;  both  come  under  the  great  seal 
of  the  State  of  Louisiana,  and  the  real  seal  is  the  one  affixed  to  tho 
McEnery  certificate.  I  know  it  was  said  here  yesterday  by  my  dis 
tinguished  friend  from  Wisconsin,  [Mr.  Howe,]  in  his  quiet  way,  that 
you  knew  who  William  Pitt  Kellogg  was,  but  you  did  not  know  John 
McEnery;  that  John  McEnery  had  given  certificates  to  persons  who 
came  knocking  at  the  doors  of  Congress  for  admission,  but  that  the 
gate  was  never  opened  to  them.  If  I  have  not  forgotten  hardly 
twelve  months  has  transpired  since  a  person  came  knocking  at  the 
door  of  the  Senate  with  a  certificate  signed  by  William  Pitt  Kellogg 
as  governor  of  the  State  of  Louisiana  stating  that  the  applicant,  was 
duly  elected  to  the  Senate  of  the  United  States.  Did  the  Senate  open 
its  doors  to  him  ;  or  did  it  shut  the  door  in  his  face  and  send  him 
away?  From  the  day  that  Kellogg  pretended  to  be  governor,  more 
than  four  years  ago,  no  man  has  entered  tho  Senate  Chamber  on  a 
credential  signed  by  him.  He  is  in  no  better  condition  in  that  respect 
than  McEnery. 

Let  us  look  at  the  history  for  a  moment.  In  1872  McEnery  and 
Kellogg  were  opposing  candidates  for  governor.  A  committee  of  the 
Senate,  presided  over  by  one  of  this  Commission,  and  of  which  I  had 
the  honor  at  the  time  to  be  a  member,  investigated  that  contest.  The 
returns  from  the  State  of  Louisiana  were  brought  here  and  exhibited 
in  onr  committee-room.  After  careful  examination  of  tho  returns, 
the  committee  reported  as  follows : 

Your  committee  are,  therefore,  led  to  the  conclusion  that  if  the  election  held  in 
November,  1872,  be  not  absolutely  void  for  frauds  committed  therein,  McEnery 
and  his  associates  in  State  offices,  and  the  persons  certified  as  members  of  the 
Legislature  by  the  De  Feriet  board  ought  to  be  recognized  aa  the  legal  govern 
ment  of  the  State. 

Such  was  the  report  of  the  committee  of  the  Senate  after  the  most 
patient  investigation  of  all  the  facts,  showing  that  McEnery,  and  not 
Kellogg,  was  the  legitimate,  lawful  governor  of  the  State.  I  low, 
then,  did  Kellogg  happen  to  get  to  be  acting  governor?  The  history 
of  that  transaction  is  known  to  the  whole  country. 

Mr.  Commissioner  BRADLEY.  Is  that  the  report  made  by  Mr. 
Carpenter  as  chairman  ? 

Mr.  TRUMBULL.  Yes,  sir.  Kellogg  succeeded  in  being  installed 
as  governor  through  the  usurpation  of  a  subordinate  judge  who 
usurped  authority,  and  set  up  a  Legislature  and  a  government  in  the 
State  of  Louisiana.  Under  his  order  no  man  was  permitted  to  enter 
the  legislative  halls  of  the  State  as  a  member  unless  he  had  a  certifi 
cate  of  election  from  a  returning  board  that  never  had  a  return  bo- 
fore  it,  from  a  returning  board  that  counted  forged  affidavits  by  the 
thousand  as  evidence  of  election.  The  Legislature  thus  organized,  in 
less  than  twenty-four  hours  impeached  and  removed  the  existing 
governor.  In  a  few  hours  more  it  turned  out  of  office  some  of  the 
judges  of  the  courts,  and  appointed  others  to  whom  it  gave  the  sole 
jurisdiction  of  determining  all  questions  in  regard  to  the  right  to 
hold  office. 

Mr.  Commissioner  EDMUNDS.  You  mean  that  they  suspended  the 
governor.  They  never  pronounced  final  sentence. 

Mr.  TRUMBULL.  Whether  he  was  convicted  and  sentenced  I  do 
not  know  ;  but  under  the  constitution  and  laws  of  Louisiana  the  im 
peachment  amounts  to  a  suspension.  They  removed  him  in  that  way. 
His  term  I  understand  expired  within  a  very  short  time. 

Mr.  Commissioner  EDMUNDS.  I  merely  meant  to  suggest  that  the 
word  "removed"  was  perhaps  inapplicable ;  but  yet  it  does  not  affect 
the  line  of  your  argument. 

Mr.  TRUMBULL.    Not  at  all. 

Immediately  a  case  was  brought  before  a  judge  whom  this  Legisla 
ture  had  created  to  determine  as  to  the  rightfulness  of  the  Legislature, 
and,  of  course,  this  judge,  the  creature  of  usurpers  calling  themselves 
a  Legislature,  decided  that  the  authority  from  which  he  derived  his 
judgeship  was  legitimate ;  and  that  is  the  way  the  legitimacy  of  the 
Kellogg  government  was  established ! 

In  regard  to  that  usurpation,  let  me  read  a  sentence  from  the  report 
of  the  Senate  committee : 


Viewed  in  any  light  which  your  committee  can  consider  them,  the  orders  and  in- 


SI  at  OH  .should  have  proceeded  in  snob,  flagrant  disregard  of  his  duty,  and  havo  a 
far  overstepped  the  limits  of  Federal. jurisdiction. 


Mr.  MOHTOX,  a  member  of  that  committee,  commenting  upon  the 
acts  of  this  judge,  said  in  his  separate  report : 

The  conduct  of  Judge  Durell,  sitting  in  the  circuit  court  of  the  United  States, 
cannot  be  justified  or  defended.  lie  grossly  exceeded  his  jurisdiction  and  assumed 
the  exercise  of  powers  to  which  he  could  lay  no  claim,  and  his  acts  cau  only  be 
characterized  as  a  gross  usurpation. 

This  same  government  in  Louisiana  underwent  a  review  only  a 
year  or  two  ago,  when  a  person  bearing  the  certificate  of  Kellogg  ap 
plied  for  a  seat  in  the  Senate  as  having  been  elected  by  the  Legisla 
ture  of  that  State,  and  in  tho  discussion  upon  that  occasion  much  was 
said,  and  better  than  I  can  express  it,  in  regard  to  the  Kellogg  govern 
ment.  In  speaking  of  the  usurpation  of  tho  returning  board  which 
had  counted  in  the  Kellogg  Legislature  and  of  the  returns  required 
to  bo  transmitted  to  the  secretary  of  state  by  the  constitution,  a  mem 
ber  of  this  Commission,  Mr.  EDMUNDS,  said  : 

They— 

The  returns — 

are  the  returns  which  the  various  local  officers  take  from  the  votes  of  the  people, 
seal  up,  and  transmit,  and  not  the  judgment  of  a  body  of  men  unknown  to  the  con 
stitution,  who  are  to  take  these  vat  ions  papers  and  produce  any  result  that  iu  their 
judgment  is  lawful  or  convenient. 

X  *  *  *  *  *  * 

I  shall  have  no  hesitation  in  saying  that,  no  matter  what  returning  board  had 
declared  this  to  be  a  Legislature  or  the  other  to  be  a  Legislature,  it  is  within  the 
competence  of  our  duty  to  know,  as  the  final  and  supreme  judges  of  the  election 
and  qualification  of  this  claimant  to  a  seat,  whether  that  Legislature  was  com 
posed  of  persons  who  appeared  by  the  returns  that  tho  constitution  speaks  of  to 
have  been  elected  or  whether  they  were  the  creation  of  some  intermediate  contri 
vance  that  either  the  cupidity  of  thieves  or  the  ambition  of  poliiicians,  or  whatever, 
may  have  invented  as  a  means  of  standing  between  the  right  of  the  people  to  elect 
their  representatives  and  the  persons  who  were  to  be  authorized  to  meet  and  to  or 
ganize  tlio  house. 

Then  speaking  of  the  powers  of  the  board,  Mr.  EDMUNDS  said : 

The  law  itself  gives  this  board  no  power  of  its  own  judgment,  or  its  own  dis^re- 
turn  in  any  way  to  tamper  with  or  to  change  this  primary  anil  fundamental  evidence, 
tho  only  evidence  which  in  any  government  which  is  to  live  bylaw  can  ever  be  re 
ceived  for  the  time  being,  the  certificates  from  the  people  to  show  who  have  been 
elected  members  of  the  Legislature  or  the  governor  of  the  State. 

Can  any  man  stand  np  and  say  that  it  is  any  other  thing  than  what  the  language 
of  the  law  says,  a  compilation  of  results  from  the  various  sources  which  the  law 
has  provided  and  which  has  flowed  info  their  hands  1  Such  returns,  it  says — not 
thoso  obtained  by  extrinsic  evidence ;  not  those  obtained  upon  affidavit ;  not  those 
obtained  upon  the  judgment  of  any  court;  not  those  obtained  in  any  other  way 
than  that  they  come  from  the  separate  assemblies  of  the  people,  sworn  to  and  cer- 
tilied  in  the  manner  prescribed  by  law,  their  seals  broken  in  their  presence,  and 
the  results  of  those  statements  arc  to  be  proclaimed — and  such  results,  thus  pro 
claimed,  are  priina  facie  evidence. 

It  is  a  special  creation  of  the  law  ;  it  has  no  finality,  and  it  can  have  none  that 
the  law  does  not  expressly  or  by  clear  implication  confer  upon  it :  and  when  the 
law  says  it  may  throw  out  a  parish  for  a  certain  reason,  it  is  an  implied  declaration 
•if  the  law  that  it  shall  not  throw  out  a  parish  for  any  other  reason  ;  arid  when  the 


other  knowledge  under  the  sun,  I  do  not  care  how  sacred  or  how  particular  or  com 
plete  it  may  be ;  for  the  moment  these  officers  of  the  law,  whose  duties  are  so 
clearly  pointed  out,  depart  from  the  firm  foundation  of  that  path  which  the  law 
has  marked  out  roi  them,  there  is  no  security  for  liberty  or  for  right  orfor  anything 
for  which  Government  is  instituted,  for  the  reason  that  there  is  then  no  guide  or 
limit  either  to  their  powers  or  their  discretion  ;  and  that  people  in  my  opinion  -\yill 
make  a  great  mistake  who  undertake  to  uphold  results  produced  by  a  body  acting 
as  this  did  outside  of  the  constitution  and  tho  laws  of  the  State. 

Every  word  I  have  read,  and  much  more  that  was  said  on  that  oc 
casion,  is  applicable  to  the  canvass  by  which  Kellogg  in  conspiring 
with  the  returning  officers  made  the  certificate  which  is  now  before 
you  and  on  which  you  are  called  upon  to  count  the  electoral  vote  for 
Hayes. 

Not  to  detain  you  as  to  this  government  in  Louisiana,  I  will  only 
say  that  it  is  not  a  republican  government,  for  it  is  a  matter  that  I 
think  this  Commission  should  take  official  knowledge  of,  that  the 
pretended  officers  in  the  State  of  Louisiana  are  upheld  by  military 
power  alone.  They  could  not  maintain  themselves  an  hour  but  for 
military  support,  'is  that  government  republican  which  rests  upon 
military  power  for  support  ?  A  republican  government  is  a  govern 
ment  of  tho  people,  for  the  people,  and  by  the  people  ;  but  the  govern 
ment  in  Louisiana  has  been  nothing  but  a  military  despotism  for  the 
last  four  years,  and  it  could  not  stand  a  day  if  the  people  of  the  State- 
were  not  overborne  by  military  power. 

Hear  what  an  author  of  great  credit  in  this  country  says  in  regard 
to  this  Louisiana  usurpation.  I  read  from  Story  on  the  Constitution , 
as  lately  published,  with  notes  and  additions  by  Judge  Cooley. 

Mr.  Commissioner  EDMUNDS.  Is  the  original  numbering  of  the 
section  preserved  ? 

Mr.  TRUMBULL.  The  original  number  is  1814,  second  volume. 
Judge  Cooley  in  his  note  to  that  section  says : 

The  recent  case  of  Louisiana  demonstrates  that  there  may  be  greater  wrongs 
than  even  the  wrongful  refusal  by  Congress  to  recognize  the  legitimate  government 
of  a  State,  and  yet  no  speedy  and  effectual  remedy  be  attainable.  Such  action  on 
the  part  of  Congress  would  at  least  be  that  of  a  proper  authority,  and  would  imply 
deliberation,  and  be  supported  by  a  presumption  of  due  regard  for  the  public  good 
and  for  the  supremacy  of  the  law.  But  in  the  case  of  Louisiana  in  1873,  an  inferior 
Federal  judge,  without  a  shadow  of  authority,  and  consequently  in  defiance  tf 


ELECTORAL   COMMISSION. 


law,  and  for  that  reason  supported  by  no  presumption  of  correct  motives,  and  with 
scarcely  a  pretense  of  observing  even  the  usual  terms,  by  the  process  of  his  court, 
aided  by  a  military  force,  installed  in  power  a  State  government  which  he  sided 
with  as  against  rival  claimants,  and  in  consequence  of  a  pressure  of  business  in 
Congress  precluding  prompt  attention  to  the  case  by  that  body,  has  been  enabled  to 
sustain  this  government  in  power  until  the  present  time.  Mr.  Justice  Story  has 
with  reason  predicted  that  "  if  a  despotic  or  monarchical  government  were  estab 
lished  in  one  State  it  would  bring  on  the  ruin  of  the  whole  republic." 

How  prophetic.  We  are  threatened  to-day  with  that  ruin  which 
Mr.  Justice  Story  foresaw. 

"What  government  can  be  more  despotic  than  one  elected  by  an  injunction  and 
continued  in  power  by  a  military  force  under  the  order  of  a  judge  who,  having  no 
jurisdiction,  is  restrained  by  no  law  but  his  arbitrary  will  ? 

It  is  a  despotism  according  to  Judge  Cooley  : 

For  the  facts  of  this  unparalleled  wrong  we  refer  to  reports  made  by  the  Judi 
ciary  Committee  of  the  United  States  Senate  in  February,  1873.  The  case  requires 
no  further  comment  than  it  there  receives.  The  dullest  mind  cannot  fail  to  see 
that  the  facility  with  which  the  wronjr  is  committed  and  the  possible  immediate 
ad  vantages  which  individuals  may  derive  therefrom  present  constant  temptations 
to  its  repetition,  and  if  suffered  to  pass  once  unrebuked  a  precedent  will  be  tacitly 
assented  to  which  cannot  fail  to  threaten  constant  danger  to  our  liberties,  especially 
at  those  very  periods  of  high  political  excitement  when  prudence,  caution,  and  the 
strietest  regard  for  the  Constitution  and  the  laws  are  most  important.  hat  party 
or  what  political  leader  can  at  such  times  be  expected  to  pay  scrupulous  deference 
to  the  laws  if  a  judge  may  ignore  them  with  impunity?  It  was  thought  the  climax 
of  wrong  had  been  reached  when  a  local  judge  in  one  of  the  States  could  seize  upon 
the  property  of  individuals  and  corporations  through  his  injunctions  andmaudatr-s 
ami  plunder  them  through  receivers  ;  but  he  at  least  was  not  acting  wholly  with 
out  jurisdiction,  and  if  he  seized  property  he  did  not  venture  to  go  so  far  as  to  make 
the  liberties  of  the  people  the  subject  of  a  receivership. 

There  is  the  opinion  of  a  judge  and  one  of  the  ablest  elementary 
writers  of  our  time  in  regard  to  this  government  in  Louisiana.  The 
Constitution  of  the  United  States  says  that  each  State  shall  appoint, 
in  such  manner  as  its  Legislature  shall  direct,  a  number  of  electors 
equal  to  the  whole  number  of  its  Senators  and  Representatives  in 
Congress ;  but  it  must  be  a  State  that  does  it;  and  what  is  meant  by 
"  a  State  ?"  A  despotism,  or  a  State  having  a  republican  form  of  gov 
ernment  where  the  people,  and  not  usurpers,  rule?  What  has  become 
of  Durell,  the  Federal  judge  who  set  up  the  Kellogg  dynasty?  He 
resigned  to  escape  impeachment  by  the  House  of  Representatives, 
composed  at  the  time  of  a  large  majority  of  political  friends  of  the 
party  he  sought  to  serve,  and  is  now  a  fugitive  from  the  State  of 
Louisiana,  subject  to  the  scorn  and  contempt  of  all  who  know  him. 
He  is  receiving  to-day  the  punishment  which  sooner  or  later  will  come 
upon  all  men  who,  clothed  with  official  authority,  betray  their  trust, 
and  for  party  ends  encroach  on  the  rights  of  the  people.  While  the 
author  of  these  iniquities  which  have  brought  ruin  upon  the  people 
of  Louisiana  goes  forth  a  vagabond  upon  the  face  of  the  earth,  con 
demned  to  everlasting  infamy,  hie  work  stands,  and  this  high  Com 
mission  is  to-day  asked  to  uphold  it  and  give  it  new  force. 

But  you  have  here  a  certificate  from  a  person  claiming  to  be  gover 
nor,  a  certified  list,  as  it  is  called  in  the  statute,  of  the  names  of  the 
persons  elected  electors.  What  does  that  amount  to?  Did  the  Con 
stitution  require  it  ?  That  instrument  says : 

The  electors  shall  meet  in  their  respective  States  and  vote  by  bnllot  for  President 
and  Vice-President,  one  of  whom,  at  least,  shall  not  be  an  inhabitant  of  the  same 
State  with  themselves  ;  they  shall  name  in  their  ballots  the  person  voted  for  as 
President,  and  in  distinct  ballots  the  person  voted  for  as  Vice-President,  and  they 
shall  make  distinct  lists  of  all  persons  voted  for  as  President,  and  of  all  persons 
voted  for  as  Vice-President,  and  of  the  number  of  votes  for  each  ;  which  lists  they 
shall  sign  and  certify,  and  transmit  sealed  to  the  seat  of  Government  of  the 
United  States,  directed  to  the  President  of  the  Senate.  TLe  President  of  the  Senate 
shall,  in  the  presence  of  the  Senate  and  House  of  Representatives,  open  all  the  cer 
tificates,  andthe  votes  shall  then  be  counted. 

That  is  all  the  electors  have  to  do.  The  right  to  appoint  electors 
is  not  inherent  in  a  State,  but  derivative  from  the  Constitution  of  the 
United  States,  which  is  as  much  a  part  of  the  constitution  of  every 
State  as  it  is  of  the  United  States.  Every  word  and  every  letter  of 
this  Constitution  is  as  binding  on  the  State  as  on  the  United  States. 
It  was  framed  for  the  purpose  of  forming  a  General  Government  and 
also  for  the  purpose  of  protecting  the  States  in  certain  national  rights. 
This  Constitution  says  to  the  State  of  Louisiana,  "You  may  appoint 
electors  in  such  manner  as  your  Legislature  shall  direct ;  they  shall 
meet  and  cast  their  ballots  in  a  certain  way,  and  send  them  to  the 
President  of  the  Senate,  and  the  votes  shall  then  be  counted."  Tell 
me  by  what  authority  Congress  passes  a  law  that  they  shall  be 
counted  unless  certified  in  a  particular  manner.  By  what  authority 
has  Congress  said  to  the  governor  of  Louisiana  or  to  the  governor  of 
any  State,  "  You  make  three  certified  lists  of  the  names  of  the  persons 
appointed  electors  ?"  It  may  be  a  matter  of  convenience  for  the  two 
Houses  to  have  that  sort  of  evidence ;  but  it  is  entirely  at  the  option 
of  the  governor  of  the  State  to  obey  that  act  or  not ;  and  old  John 
Hancock  nearly  a  century  ago,  before  he  would  make  any  such  certifi 
cate,  sent  a  communication  to  the  Legislature  of  the  Commonwealth 
of  Massachusetts  to  know  whether  it  would  meet  their  approval.  I 
will  read  what  was  said  by  a  committee  of  the  Senate  in  a  unanimous 
report  made  by  Mr.  MORTOX  on  this  subject  in  1873  : 

The  third  section  of  the  act  of  Congress  of  1792  declares  what  shall  be  the  official 
evidence  of  the  election  of  electors,  and  provides  that  "  the  executive  authority  of 
each  State  shall  cause  three  lists  of  the  names  of  the  electors  of  such  State  to  be 
made  and  certified,  to  be  delivered  to  the  electors  on  or  before  the  first  "Wednesday 
in  December,  and  the  said  electors  shall  annex  one  of  the  said  lists  to  each  of  their 
votes."  The  certificate  of  the  secretary  of  state  is  not  required,  and  the  certificate 
of  the  governor,  as  provided  for  in  this  section,  seems  to  be  the  only  evidence  con 
templated  by  the  law  of  the  election  of  electors  and  their  right  to  cast  the  electoral 
vote  of  the  State.  If  Congress  chooses  to  go  behind  the  governor's  certificate,  and 


inqniro  who  has  been  chosen  as  electors,  it  is  not  violating  any  principle  of  the 
right  of  the  States  to  prescribe  what  shall  be  the  evidence  of  the  election  of  elect 
ors,  but  it  is  simply  going  behind  the  evidence  as  prescribed  by  an  act  of  Congress; 
and,  thus  going  behind  the  certificate  of  the  governor,  we  find  that  the  oilicial  re 
turns  of  the  election  of  electors  from  the  various  parishes  of  Louisiana  had  never 
been  counted  by  anybody  having  authority  to  count  them. 

What  was  the  result  ?  On  that  report  in  1873  the  Senate  and  the 
House  of  Representatives  voted  not  to  count  the  electoral  vote  of  tho 
State  of  Louisiana,  and  it  was  rejected.  Governor  Warmoth  had 
given  a  certificate  in  due  form  certifying  to  the  election  of  the  elect 
ors  in  that  State  ;  but  what  was  it  good  for?  The  two  Houses  went 
behind  it.  A  committee  of  the  Senate  reported  that  the  votes  had 
never  been  canvassed  by  anybody  having  authority  to  canvass  them, 
and  the  result  was  that  the  vote  of  the  State  was  rejected.  There  is 
authority  for  going  behind  the  governor's  certificate. 

Mr.  Commissioner  BRADLEY.  Who  canvassed  at  that  time  ?  Who 
made  the  canvass  ? 

Mr.  TRUMBULL.  The  canvass  at  that  time  was  required  to  be 
made  by  a  returning  board  consisting  of  the  governor,  the  lieutenant- 
governor,  the  secretary  of  state,  and  two  persons  designated  by 
name.  There  was  a  controversy  as  to  which  was  the  proper  can 
vassing  board. 

Mr.  Commissioner  BRADLEY.  And  it  was  held  that  the  proper 
board  had  not  made  the  canvass  ? 

Mr.  TRUMBULL.     It  was  not  decided  in  this  report. 

Mr.  Commissioner  BRADLEY.  I  want  to  know  the  meaning  of 
that  language. 

Mr.  TRUMBULL.    Let  us  read  from  the  report : 

And  thus  going  behind  the  certificate  of  the  governor,  we  find  that  the  official 
returns  of  tho  election  of  electors  from  the  various  parishes  of  Louisiana  had  never 
been  counted  by  anybody  having  authority  to  count  them. 

Mr.  Commissioner  MORTON.  I  would  inquire  whether  Judge 
Trnmbull  has  the  whole  report  there  ? 

Mr.  TRUMBULL.  I  have.  You  wilt  find  it  commencing  at  page 
370  of  this  book  entitled  The  Presidential  Counts. 

Mr.  Commissioner  MORTON.  Will  the  judge  then  state  what 
the  report  says  in  regard  to  the  right  of  Congress  to  go  behind  the 
evidence  prescribed  by  the  laws  of  the  State,  a  little  further  on? 

Mr.  Commissioner  BRADLEY.  The  thing  has  passed  out  of  my 
mind  and  I  merely  ask  for  information. 

Mr.  TRUMBULL.    This  is  the  passage,  I  suppose : 

The  election  of  the  Greeley  electors  was  certified  to  by  tho  governor  of  the  State, 
but  the.  official  returns  of  the  election  have  not  been  counted  by  the  returning  board 
created  by  the  laws  of  Louisiana  for  that  purpose ;  and  the  persons  who,  in  fact,  made 
the  examination  and  count  had  no  legal  authority  to  do  so.  Tho  election  of  the  Grant 
electors  is  certified  by  the  Lynch  returning  board,  but  that  board  did  not  have  the 
official  returns  before  them,  and  their  election  is  not  certified  by  the  governor  of 
the  State,  as  required  by  the  act  of  Congress.  The  committee  are  of  tho  opinion 
that  neither  the  Senate  of  tho  United  States  nor  both  Houses  jointly  have  the, 
power  under  the  Constitution  to  canvass  the  returns  of  an  election  and  count  the> 
votes  to  determine  who  have  been  elected  presidential  electors,  but  that  the  modn 
and  manner  of  choosing  electors  are  left  exclusively  to  the  States.  And  if  by  the 
law  of  the  State  they  are  to  be  elected  by  tho  people,  the  method  of  counting  tlie 
vote  and  ascertaining  the  result  can  only  be  regulated  by  the  law  of  the  State. 
"Whether  itis  competent  for  the  two  Houses,  under  tho  twenty-second  joint  rule, 
(in  regard  to  the  constitutionality  of  which  the  committee  here  give  no  opinion  » 
to  go  behind  the  certificate  of  tlie  governor  of  tho  State  to  inquire  whether  the 
votes  for  electors  have  ever  been  counted  by  the  legal  returning  board  created  by  the 
law  of  the  State,  or  whether,  in  making  such  count,  the  board  had  before  them  tho 
official  returns,  the  committee  offer  no  suggestions,  but  present  only  a  statement 
of  the  facts  as  they  understand  them. 

That  covers,  I  presume,  what  was  asked  of  me. 

Mr.  Commissioner  MORTON.     That  covers  it. 

Mr.  Commissioner  EDMUNDS.  Do  I  understand  you  to  mean, 
Judge  Trumbull,  in  speaking  of  the  action  of  the  Senate  four  years 
ago,  that  the  judgment  of  the  Senate  was  upon  the  question  of  fact 
as  to  what  the  real  vote  of  the  people  had  been  ? 

Mr.  TRUMBULL.  It  would  be  difficult  to  state  upon  what  con 
sideration  Senators  voted.  The  vote  of  Louisiana  was  duly  certified 
to  by  the  governor  of  the  State  ;  I  have  the  certificate  here  in  proper 
form ;  and  for  some  reason,  as  the  honorable  Senator  is  aware,  we 
never  can  know  the  considerations  upon  which  Senators  vote,  but  for 
some  reason  or  other  the  Senate  and  the  House  concurred  in  reject 
ing  the  vote  of  Louisiana.  The  certificate  of  tho  governor,  however, 
was  in  due  form  and  complete ;  so  that  it  does  amount  to  a  decision 
thus  far  that  the  two  Houses  of  Congress  have  decided  that  the  certi 
ficate  of  the  governor  in  due  form  stating  that  certain  persons  are 
electors  is  not  conclusive  upon  the  two  Hotises  of  Congress. 

Mr.  Commissioner  EDMUNDS.  Under  certain  circumstances.  The 
resolution,  if  you  will  pardon  me,  was  that  all  the  objections  presented 
having  been  received,  no  electoral  vote  purporting  to  be  that  of  the 
State  of  Louisiana  should  be  counted,  in  favor  of  which  there  were 
33  affirmative  and  against  it  1G  negative  votes.  Amoug  the  objections 
was  one  by  Mr.  Carpenter,  a  Senator  from  Wisconsin  : 

I  object  to  the  counting  of  tho  votes  given  f or  U.  S.  Grant  for  President  and 
Henry  "Wilson,  Vice-President,  by  the  electors  of  Louisiana,  because  there  Ls  no 
proper  return  of  votes  cast  by  the  electors  of  the  State  of  Louisiana,  and  because 
there  is  no  State  government  in  said  State,  which  is  republican  iu  form,  and  because 
no  canvass  or  counting  of  tho  votes  cast  for  electors  in  the  State  of  Louisiana  at 
the  election  held  in  November  last  had  been  made  prior  to  the  meeting  of  the 
electors. 

And  another  of  similar  purport  by  Mr.  Senator  Trumbull,  of  the 
State  of  Illinois. 
Mr.  Commissioner  THURMAN.     Allow  me  to  interrupt  Judge 


ELECTORAL  COMMISSION. 


Trnmlmll.  I  understand  that  the  decision  of  I  lie  Senate  wont  on  the 
question  whether  the  governor's  certificate  was  conclusive,  and  it 
was  decided  not  only  that  his  certificate  was  not  conclusive,  but  it 
was  decided  that  the  decision  of  that  returning  board  on  which  ho 
founded  his  certificate  was  not  conclusive. 

Mr.  Commissioner  MORTON.  There  was  no  such  certificate  before 
the  Senate. 

Mr.  Commissioner  TIIURMAN.  There  was  a  certificate  of  one  re 
turning  board. 

Mr.  TRUMBULL.  The  certificate  of  Governor  Warmoth  I  had 
better  read,  that  the  commission  may  see  what  the  certificate  was  in 
that  case : 

UNITED  STATES  OF  AMERICA, 

State  of  Louisiana,  Oitjf  of  New  Orleans : 

I,  IT.  C.  Warmoth,  governor  of  the  State  of  Louisiana,  do  hereby  certify  that 
the  foregoing  signature  of  B.  P.  Blauchard,  State  registrar  of  votes  for  the  State 
of  Louisiana,  is  genuine;  and  I  do  further  certify  that  Messrs.  T.  C.  Manning,  A. 
S.  Herrou,  and  C.  II.  Wood,  for  the  State  at  large,  and  Hugh  J.  Campbell,  for  first 
district;  Louis  Bush,  second  district;  Allen  Thomas,  third  district;  A.  H.  Leon 
ard,  fourth  district,  and  L.  V.  Beeves,  fifth  district,  were  duly  and  legally  elected 
presidential  electors  for  the  State  of  Louisiana,  at  an  election  held  in  said  State  on 
the  4th  day  of  November,  A.  D.  1872,  pursuant  to  the  statutes  of  the  Congress  of 
the  United  States  and  State  of  Louisiana  on  the  subject. 

In  faith  whereof  I  have  hereunto  affixed  my  official  signature  and  caused  the 
great  seal  of  the  State  to  be  hereto  attached,  at  the  city  of  Now  Orleans,  capital  of 
the  State,  this  4th  day  of  December,  A.  D.  1872,  and  of  the  independence  of  the 
United  States  the  ninety-seventh. 

H.  C.  WARMOTH. 

By  the  governor: 

[L.  s.]  T.  A.  WOODWARD, 

Assistant  Secretary  of  State. 

In  the  Senate  report  it  is  said : 

Messrs.  Woodward  and  Bragdon,  according  to  the  testimony,  looked  over  the  re 
turns  to  ascertain  who  had  been  elected  electors  for  President  and  Vice-Pivsideiit, 
and  made  a  statement  to  the  governor  of  the  result  of  their  examination ;  and  the 
governor,  on  the  morning  of  the  4th  of  December,  the  day  fixed  by  the  act  of  Con- 
gross  when  the  electors  in  the  several  States  shall  meet  and  cast  their  votes,  issued 
a  paper,  in  which  he  declared  that  T.  C.  Manning,  G.  A.  Weed,  A.  P.  Herron,  H. 
.1".  Campbell,  L.  Bush,  A.  Thomas,  A.  H.  Leonard,  and  L.  V.  Reeves  had  been  elected 
electors,  and  placed  a  copy  of  the  said  paper  in  the  possession  of  each  of  said  per 
sons;  and  afterward,  on  the  same  day,  they  assembled  in  the  city  of  New  Orleans, 
and,  as  electors,  voted  for  President  and  Vice-Presideut.  It  clearly  appears  from 
the  testimony  that  the  official  returns  of  the  State  were  never  examined  and  counted 
for  presidential  electors  by  any  persons  except  Messrs.  Woodward  and  Bragdon, 
and  up  to  this  time  never  have  been  examined  and  counted  by  the  Lynch  board  or 
any  person  having  authority  whatever  to  make  such  examination  and  count.  While 
wo  have  no  doubt  that  the  returns  sent  to  Governor  Warmoth  from  various  parishes 
by  the  supervisors  of  registration  will,  upon  their  face,  show  that  the  aforesaid  per 
sons  named  as  electors,  and  whom,  we  shall  designate  asthe  "  Greeley  electors,"  re- 
ceive'd  a  majority  of  the  votes,  that  fact  has  never  been  ascertained  by  any  compe 
tent  authority,  and  the  action  of  Governor  Warmoth  depended  entirely  upon  the 
unauthorized  statements  of  Messrs.  Woodward  and  Bragdon,  who,  at  the  time,  had 
no  right  to  look  into  the  returns  at  all.  In  this  matter  there  is  no  pretense  that  the 
law  was  complied  with,  and  the  Lynch  board  were  never  at  any  time  permitted  to 
see  HMOU 

That  is  the  report  made  by  the  Senate  Committee  on  Privileges  and 
Elections,  of  which  the  Senator  from  Indiana  then  was,  as  he  now 
is,  chairman. 

Mr.  Commissioner  BRADLEY.  I  now  understand  the  point.  One 
set  of  men  had  the  returns  but  were  not  entitled  to  have  them,  and 
the  other  set  who  were  entitled  to  them  did  not  have  them. 

Mr.  TRUMBULL.  That  was  a  disputed  question  and  I  do  not 
know  that  it  has  ever  been  settled  to  this  day,  except  by  the  judge 
to  whom  I  referred  who  was  put  in  office  for  the  purpose  of  settling  it. 

Mr.  Commissioner  EDMUNDS.     That  was  the  contention. 

Mr.  TRUMBULL.  That  was  the  contention,  as  is  very  aptly  ex 
pressed.  But  however  it  may  have  been,  one  thing  is  settled  by  Con 
gress,  so  far  as  the  two  Houses  could  settle  it.  that  the  governor's 
certificate  in  due  form,  the  same  kind  of  a  certificate  as  No.  1  now 
before  the  Commission,  was  overruled  by  the  concurrent  action  of  the 
two  Houses  of  Congress,  and  they  refused  to  count  the  vote,  and  the 
report  of  the  committee  was  that  the  vote  had  not  been  properly  can 
vassed.  Now  we  propose  to  show  this  Commission  that  the  vote  in 
November  last  has  never  been  canvassed,  that  the  pretended  canvass 
is  a  fraud,  that  the  papers  were  forged,  that  the  returns  were  al 
tered  and  falsified,  and  I  should  like  to  know  if  a  count  under  such 
circumstances  is  any  bettor  than  a  true  count  made  by  persons  who 
had  no  authority  to  make  it.  If  the  action  of  Congress  is  worth  any 
thing,  unless  it  is  to  reverse  its  decision,  and  that  in  behalf  of  in 
iquity,  this  Commission  can  go  back  of  the  returns.  Legislative 
bodies  and  courts  sometimes,  though  very  reluctantly,  overrule  former 
decisions;  but  in  the  history  of  legislative  proceedings  or  of  courts 
was  it  ever  heard  that  a  former  decision  was  reversed  in  order  to  per 
petuate  a  wrong,  an  iniquity,  a  falsehood,  a  forgery?  If  the  action 
of  Congress  is  good  for  anything,  it  establishes  the  right  to  go  behind 
the  certificate.  That  was  the  understanding  when  this  Commission 
was  created,  and  it  will  be  a  delusion  and  a  snare  in  the  estimation 
of  this  whole  people  if  the  questions  submitted  to  this  Commission 
are  decided  upon  the  technical  ground  that  the  Commission  has  noth 
ing  to  do  but  to  add  up  the  votes  as  shown  on  the  face  of  the  certifi 
cates.  It  will  bo  overturning  not  only  the  decision  of  Congress  four 
years  ago,  it  will  overturn  every  settled  principle  of  parliamentary 
law  from  the  beginning  of  time,  so  far  as  we  have  any  record  of  it 
Is  my  time  up  ? 

The  PRESIDENT.  You  commenced  at  five  minutes  past  one.  It 
is  now  twelve  minutes  past  two.  You  have  spoken  one  hour  and  seven 
inmates. 


Mr.  Commissioner  ABBOTT.  There  were  some  fifteen  minutes  lost 
by  a  discussion  of  the  Louisiana  question  which  I  do  not  think  in  all 
fairness  should  be  taken  out  of  Judge  TrumbulFs  time. 

Mr.  Commissioner  BAYARD.  Mr.  President,  I  submit  that  when 
counsel  are  compelled  to  read  long  papers  in  answer  to  members  of 
the  Commission  and  are  thereby  diverted  from  their  argument,  at 
least  the  time  so  occupied  in  responding  to  questions  of  individuals 
upon  the  Commission  should  not  be  charged  to  them  in  the  computa 
tion  of  their  time. 

The  PRESIDENT.  Judge  Trnmbull  has  still  time  left.  The  ques 
tion  would  hardly  arise,  unless  the  time  should  come  when  I  might 
consider  it  my  duty  to  stop  him. 

Mr.  TRUMBULL.  There  is  another  principle  of  parliamentary  law 
to  which  I  desire  to  call  attention.  It  is  succintly  stated  in  an  ele 
mentary  work  to  which  I  refer  rather  than  quote  decisions,  in  section 
441  in  what  is  entitled  The  American  Law  of  Elections,  by  McCrary  ; 
it  is  said : 

Fraud,  in  the  conduct  of  an  election,  may  be  committed  by  one  or  more  of  the  offi 
cers  thereof,  or  by  other  persons.  If  committed  by  person's  not  officers,  it  may  bo 
either  with  or  without  knowledge  or  connivance  of  such  officers.  There  is  a  differ 
ence  between  a  fraud  committed  by  officers  or  with  their  knowledge  and  connivance, 
and  a  fraud  committed  by  other  persons  in  this  the  former;  is  ordinarily  fatal  to 
the  return,  while  the  later  is  not  fatal,  unless  it  appear  that  it  has  changed  or 
rendered  doubtful  the  result.  If  an  officer  of  the  election  is  detected  in  a  willful 
and  deliberate  fraud  upon  the  ballot-box,  the  better  opinion  is  that  this  will  destroy 
the  integrity  of  his  official  acts,  even  though  the  fraud  discovered  is  not,  of  itself, 
sufficient  to  affect  the  result,  (ante,  section  184,  JudUins  vs.  Hill,  SON.  H.,  104.)  The 
reason  of  this  rule  is  that  an  officer  who  betrays  his  trust  in  one  instance  is  shown 
to  bo  capable  of  the  infamy  of  defrauding  the  electors,  and  his  certificate  is  there 
fore  good  for  nothing. 

Now  we  propose  to  show  by  evidence  which  we  have  offered  here 
that  the  president  of  the  returning  board  with  the  sanction  of  his 
confederates  altered  the  returns  of  Vernon  Parish,  took  178  votes 
from  one  side  and  put  them  on  the  other  by  a  forgery  of  the  papers. 
According  to  this  authority  a  fraud  committed  by  an  officer  is  fatal 
to  his  return. 

I  see  I  shall  have  no  time,  and  it  is  perhaps  not  proper  that  I  should 
on  this  preliminary  question  of  admitting  evidence  go  into  the  ques 
tion  of  the  want  of  authority  in  this  returning  board  under  any.  cir 
cumstances  to  canvass  the  electoral  vote.  Assuming  that  it  has  such 
authority  under  any  circumstances,  still  it  would  have  no  authority 
to  reject  votes,  except  the  foundation  be  properly  laid.  The  law  is 
succinctly  and  clearly  stated  in  the  report  already  cited,  made  by 
Senator  MOKTON,  as  follows  : 


ishe 

tumult,  fraud,  or  bribery  by  whi 
be  forwarded  to  the  returning  board  along  with  the  returns,  and  upon  which  the 
returning  board  may  reject  the  vote  of  a  poll  in  making  the  count;  and  if  the  evi 
dence  of  the  officers  of  the  election  is  not  sufficient  to  satisfy  the  minds  of  the 
returning  board  in  regard  to  the  matters  charged  they  are  authorized  to  send  for 
persons  and  papers  and  take  further  testimony  upon  the  matter ;  but  they  have  no 
authority  to  make  such  investigation  unless  the  foundation  is  first  laid  by  the- a  worn 
statements  of  the  officers  of  the  election,  as  before  mentioned. 

Everybody  who  ever  looked  into  the  Louisiana  law  agrees  with 
what  was  stated  by  the  Committee  on  Privileges  and  Elections  of 
the  Senate  in  1873.  The  same  committee  in  1875  and  the  committee 
of  the  House  of  Representatives  which  visited  Louisiana  in  1874 
both  agree  that  the  laying  of  a  proper  foundation  to  reject  votes  was 
a  jurisdictional  fact,  without  the  existence  of  which  the  returning 
board  would  have  no  authority  to  reject  votes  nor  to  do  anything 
except  to  compile  the  statements  of  votes  that  were  made  by  the  com 
missioner  of  election. 

Mr.  Commissioner  MILLER.  Judge  Trumbull,  allow  me  to  make 
a  suggestion  to  you  just  there.  The  point  came  np  in  the  Florida  case 
and  was  much  considered  in  the  conference  and  was  the  ground  of 
some  of  the  votes  then  cast,  and  there  is  a  great  deal  of  importance 
attached  to  it  in  my  mind  at  least.  If  the  only  thing  which  that  re 
turning  board  could  do  was  to  determine  whether  certain  polls  should 
be  rejected  or  counted,  your  argument  is  a  perfectly  just  one  ;  but  is 
it  not  also  true  that  the  jurisdiction  of  that  board  is  commensurate 
with  the  duties  and  functions  it  is  to  perform,  and  is  it  not  true  that 
that  the  one  main  function  it  is  to  perform  is  to  ascertain  who  was 
elected  and  to  declare  that  fact  ?  And  can  it  be  said  that  if  they  mis 
take  the  law  in  some  of  the  points  that  they  have  to  determine  upon 
in  discharging  that  function  of  declaring  who  are  elected,  or  if  they 
fail  properly  to  weigh  the  testimony  on  which  they  act  in  any  of  those 
points,  that  is  so  jnrisdictional  that  their  decision  is  erroneous  ? 

Mr.  TRUMBULL.    No,  sir ;  I  do  not  contend  for  that. 

Mr.  Commissioner  MILLER.  Then  my  suggestion  is  that  the  juris 
diction  of  this  board,  the  function  which  it  is  called  upon  to  dis 
charge,  is  to  ascertain  and  declare  who  are  elected.  That  is  their 
jurisdiction  and  all  below  it  is  the  exercise  of  means  and  modes  of 
procedure. 

Mr.  TRUMBULL.  To  that  I  cannot  quite  assent.  I  assent  entirely 
to  the  proposition  that  upon  any  matter  of  which  this  board  had  juris 
diction  and  a  discretion  to  act  their  judgment  is  not  to  be  disturbed  ; 
but  the  point  I  make  is  that  while  it  is  their  duty  to  canvass  and  com 
pile  the  vote — that  is  their  sworn  duty — it  is  also  their  sworn  duty 
:iot  to  take  jurisdiction  of  the  question  of  rejecting  votes  unless  a 
foundation  is  first  laid  for  so  doing.  Upon  the  want  of  power  of  a 
canvassing  board  to  reject  votes,  and  that  its  acts  in  so  doing  are 
without  jurisdiction  and  void,  I  refer  to  the  cases  of  The  People  vs. 


ELECTORAL  COMMISSION. 


91 


Cook,  4  Selden,  82 ;  and  10  Bush,  743.  la  the  case  of  the  State  vs.  County 
Judge,  7  Iowa  Rep.,  201,  it  is  said  : 

The  next  subject  of  examination  is  the  answer  that  the  duty  had  already  been 
performed. 

It  was  a  case  of  mandamus  to  compel  a  returning  officer  to  canvass 
the  votes. 

'  Inasmuch  as  the  canvassers  have  rejected  the  returns  from  three  of  the  town 
ships  which  they  should  have  counted,  it  is  legally  true,  that  duty  has  not  been 
discharged ;  and  when  the  writ  now  commands,  it  is  not,  in  a  proper  legal  sense, 
to  recanvass,  but  to  canvass,  the  returns  of  that  election.  It  is  to  do  that  which  was 
before  their  duty,  but  which  they  omitted.  "What  has  been  done  is  as  if  it  had  not 
been  done,  and  the  judge  is  now  commanded  to  proceed  as  if  no  former  steps  had 
been  taken. 

He  had  left  out  three  returns  that  it  was  his  duty  to  canvass. 
The  mandamus  went  compelling  him  to  make  the  canvass.  The  same 
principle  is  very  forcibly  stated  in  a  recent  decision  by  the  Supreme 
Court  of  the  United  States  in  a  case  that  is  not  yet  reported  decided  at 
the  present  term  of  the  court.  It  is  the  case  of  Windsor  vs.  McVeigh. 
It  was  an  action  of  ejectment  and  there  came  up  collaterally  the  va 
lidity  of  title  derived  from  a  sale  under  the  confiscation  acts.  Some 
years  ago  a  suit  was  instituted  in  Virginia  to  condemn  property  under 
the  confiscation  acts  and  the  owners  came  in  and  sought  to  defend. 
The  judge  of  the  court  struck  their  answer  from  the  files  and  refused 
to  hear  them  at  all.  The  case  proceeded  to  j  udgment  and  the  property 
was  sold.  An  action  of  ejectment  was  brought  involving  the  title 
derived  under  the  sale.  The  court  say  in  that  case : 

The  law  is  and  always  has  been  that  whenever  notice  or  citation  is  required,  the 
party  cited  has  the  right  to  appear  and  be  heard,  and  when  the  latter  is  denied  the 
former  is  ineffectual  for  any  purpose.  The  denial  to  a  party  tu  such  a  case  of  the 
right  to  appear  is  in  legal  ett'ect  the  recall  of  the  citation  to  him. 

*  *****  * 

The  jurisdiction  acquired  by  the  court  by  seizure  of  the  res  was  not  to  condemn 
the,  property  without  further  proceedings. 

The  jurisdiction  secured  by  this  returning  hoard  to  make  the  can 
vass  was  not  to  reject  a  part  of  the  returns  arbitrarily  and  at  will. 
There  is  much  in  this  decision  illustrative  of  the  present  case  : 

If  :i  seizure  is  made  and  condemnation  is  passed  •without  the  allegation  of  any 
specific  cause  of  forfeiture  or  offense,  and  without  any  public  notice  of  the  proceed- 
ings,  so  that  the  parties  in  interest  have  no  opportunity  of  appearing  and  making 
:i  defense,  the  sentence  is  not  so  much  a  judicial  sentence  as  an  arbitrary  sovereign 
edict. 

In  quoting  from  Mr.  Justice  Story  in  another  case,  with  approbation, 
the  court  say : 

In  another  part  of  the  same  opinion  the  judge  characterized  such  sentences  "as 
mere  mockeries,  and  as  inno  just  sense,  judicial  proceedings ; "  and  declared  that  they 
"ought  to  be  deemed,  both  ex  direeta  in  rein  and  collaterally,  to  be  mere  arbitrary- 
edicts  or  substantial  frauds." 

The  court  held  the  judgment  of  condemnation  absolutely  void  in  a 
collateral  proceeding.  A  jurisdiction  to  compile  and  canvass  votes 
does  not  confer  jurisdiction  to  reject  votes.  The  latter  jurisdiction 
can  only  be  exercised  when  the  statutory  foundation  is  laid. 

There  is  another  point  which  goes  to  the  jurisdiction  of  this  board 
which  we  ought,  I  think,  to  be  permitted  to  show,  that  it  was  not  so 
constituted  as  to  have  jurisdiction  of  the  canvass  at  all,  for  the  reason 
that  the  law  declares  that  "  five  persons  to  be  elected  hy  the  Senate 
of  all  political  parties  shall  constitute  the  returning  officers  for  all 
elections,  a  majority  of  whom  shall  constitute  a  quorum  and  have 
power  to  make  the  returns  of  all  elections." 

Now,  I  insist  that  it  was  incompetent  for  four  persons  to  act.  Four 
or  three  might  act  if  the  board  was  full ;  but  when  a  duty  is  re 
quired  to  be  performed  by  five  persons  of  different  political  parties,  it 
cannot  be  lawfully  performed  by  four  persons  all  of  the  same  party. 
There  was  an  object  in  the  requirement  that  the  board  should  be  com 
posed  of  different  political  parties.  It  is  not  a  mere  directory  statute. 
The  Legislature  undoubtedly  had  in  view  fairness  in  the  canvass  of 
the  returns,  and  hence  it  committed  it  to  returning  officers  to  he  made 
up  of  all  political  parties.  The  fact  here  is,  that  four  persons,  all  of 
one  party,  made  the  canvass.  Suppose  five  had  existed,  could  a  ma 
jority  have  acted  without  giving  notice  to  the  others  ?  The  act  of  a 
majority  would  doubtless  bo  good  if  the  board  had  been  full  and  all 
had  been  notified.  Each  party  had  the  right  to  have  the  advice  and 
the  judgment  of  some  of  its  friends  in  this  board.  While  three  might 
act  they  must  give  notice  to  all  that  all  might  have  an  opportunity 
to  be  present.  These  four  had  authority  to  fill  up  the  board.  The 
statute  required  them  to  do  it. 

They  were  asked  to  fill  the  vacancy  and  refused.  Every  clerk  en 
gaged  by  them  was  of  the  same  political  party.  I  insist  that  this 
board  was  not  constituted  so  as  to  have  authority  to  make  the  can-, 
vass  at  all.  The  general  rule  on  this  subject  is  well  stated  in  2l" 
Wendell's  Reports  in  the  case  of  Downing  vs.  Ruger,  page  18^ : 

The  rule  seems  to  be  well  established,  that  in  the  exercise  of  a  public  as  well  as 
a  private  authority,  whether  it  be  ministerial  or  judicial,  all  the  persons  to  whom 
it  is  committed  must  confer  and  act  together,  unless  there  be  a  provision  that  a 
less  number  may  proceed.  Where  the  authority  is  public,  and  the  number  is  such 
as  to  admit  of  a  majority,  that  will  bind  the  minority,  after  all  have  duly  met- and 
conferred. 

I  do  not  insist  that  the  whole  five  must  have  been  present ;  but  I 
do  insist  that  where  the  authority  existed  in  the  four  to  supply  the 
vacancy  they  had  no  authority  to  go  on  and  make  the  canvass  with 
out  supplying  the  vacancy.  It  was  not  fair ;  it  was  not  what  the 
Legislature  intended  ;  and  they  are  in  no  better  position  surely,  fail 
ing  to  obey  the  law  and  supply  this  vacancy,  than  they  would  have 
been  if  they  had  supplied  the  vacancy  and  then  acted  without  giving 


the  fifth  man  notice  or  afforded  him  an  opportunity  to  attend,  and 
that  would  have  been  fatal. 

The  fact  that  the  statute  authorizes  a  majority  to  act  does  not 
change  the  rule.  A  majority  could  have  acted  in  a  case  of  this  kind 
if  the  statute  had  not  said  so,  provided  all  had  been  afforded  an  op 
portunity  to  co-operate. 

Mr.  Commissioner  EDMUNDS.  Your  point  is,  that  no  step  at  all 
could  be  taken  until  the  board  was  full  ? 

Mr.  TRUMBULL.  No  step  could  be  taken  until  the  vacancy  was 
filled,  the  four  having  authority  to  fill  it. 

The  constituent  elements  of  which  this  returning  board  was  to 
consist  being  wanting,  I  insist  the  four  could  not  go  on  without  fill 
ing  up  the  board,  particularly  as  one  of  the  elements  which  entered 
into  the  mind  of  the  Legislature  in  the  passage  of  the  law  was  want 
ing  in  the  board  as  it  existed,  the  four  being  all  of  one  political  party. 

My  attention  is  called  to  the  phraseology  of  the  law.    It  is : 

In  case  of  any  vacancy  by  death,  resignation,  or  otherwise,  by  either  of  the 
board,  then  the  vacancy  shall  be  filled  by  the  residue  of  the  board  of  returning 
officers. 

The  act  is  mandatory,  and  a  failure  to  obey  it  I  think  is  a  fatal 
defect  in  the  organization  of  the  board. 

The  PRESIDENT.  Excuse  me  for  saying  that  you  have  occupied 
an  hour  and  a  half. 

Mr.  TRUMBULL.    I  desire  to  call  attention  to  one  other  matter. 

It  has  been  stated  in  another  argument  in  the  hearing  of  the  Com 
mission,  and  I  have  not  the  vanity  to  suppose  that  I  can  state  it  any 
more  clearly,  but  yet  I  desire  to  press  it  upon  your  consideration.  To 
my  mind  it  is  conclusive  and  unanswerable.  I  allude  to  the  inability 
of  the  Legislature  of  Louisiana  to  appoint  Brewster  and  Levisseo 
electors.  The  language  of  the  Constitution  is  in  that  respect  pecu 
liar.  It  is  an  inhibition  on  the  Legislature  and  not  a  disqualification 
or  inability  on  the  part  of  the  individual.  The  attention  of  the  Com 
mission  was  called  to  that  the  other  day.  The  language  of  the  Con 
stitution,  that  "no  person  shall  be  a  Senator  who  shall  not  have  at 
tained  to  the  age  of  thirty  years  and  been  nine  years  a  citizen  of  the 
United  States,"  is  very  different  from  the  language  here. 

The  only  power  that  a  State  has  to  appoint  an  elector  at  all  is 
derived  from  the  Constitution  of  the  United  States.  Most  of  the 
powers  exercised  by  a  State  are  inherent,  belonging  to  the  State  itself, 
but  the  power  to  appoint  electors  of  President  and  Vice-President  is 
derived  from  the  Constitution  of  the  United  States.  That  is  tho 
warrant  of  authority,  and  it  reads  thus  : 

Each  State  shall  appoint,  in  such  manner  as  tho  Legislature  thereof  may  direct, 
a  number  of  electors,  equal  to  the  whole  number  of  Senators  aud  Representatives 
to  which  the  State  may  be  entitled  in  tho  Congress :  but  no  Senator  or  Represent 
ative,  or  person  holding  an  office  of  trust  or  profit  under  the  United  States,  shall  be 
appointed  an  elector. 

We  have  here  the  evidence  that  Brewster  was  surveyor-general  of 
the  land  office  for  the  district  of  Louisiana,  an  office  to  which  he  was 
nominated  by  the  President  and  confirmed  by  the  Senate.  He  held 
this  office  on  the  7th  of  November  last.  The  warrant  of  authority  to 
the  State  of  Louisiana  is,  "You  may  appoint  as  many  electors  as  you 
have  Senators  and  Representatives,  but  you  shall  not  appoint  O.  H. 
Brewster."  That  is  what  the  Constitution  in  effect  says. 

Mr.  Commissioner  MORTON.  Let  me  ask  the  gentleman  a  ques 
tion.  Does  he  believe  that  the  control  given  to  the  Legislature  in  the 
appointment  of  electors  can  be  limited,  restrained,  or  directed  by  the 
constitution  of  the  State? 

Mr.  TRUMBULL.  They  can  determine  certainly  in  the  State  whom 
they  will  appoint,  and  may  put  inhibitions  on  the  appointment  of 
particular  persons,  I  should  imagine. 

Mr.  Commissioner  MORTON.  My  question  is  this:  inasmuch  a  s  the 
Constitution  of  the  United  States  gives  to  the  Legislature  of  a  State 
the  control  of  the  appointment  of  electors,  is  it  competent  for  the 
State  by  her  constitution  to  control  the  Legislature  in  the  exercise 
of  that  power  ? 

Mr.  TRUMBULL.  That  question  does  not  arise  in  this  case.  The 
power  being  granted  by  the  Constitution  of  the  United  States  to  the 
Legislature  in  terms,  it  may  be  questionable  whether  it  is  competent 
for  the  people  in  their  constitution  to  regulate  it. 

Mr.  Commissioner  HOAR.  Mr.  Trumbull,  is  not  the  question  a  lit 
tle  deeper  even  than  Mr.  MORTON  has  put  it?  When  the  Constitu 
tion  of  the  United  States  has  fixed  the  qualifications  of  presidential 
electors,  or  rather  has  expressed  certain  disqualifications,  is  it  com 
petent  for  the  Legislature  of  a  State,  under  the  mere  power  of  fixing 
the  manner  of  appointment,  to  impose  other  disqualifications? 

Mr.  Commissioner  THURMAN.     No  such  question  arises  here. 

Mr.  SHELLABARGER.    This  is  a  Federal  officer. 

Mr.  Commissioner  HOAR.  I  understand  that  is  the  point  you  were 
then  arguing,  but  Mr.  MORTON  called  your  attention  to  another,  aud 
you  were  replying  to  him. 

Mr.  TRUMBULL.  The  question  of  the  Senator  from  Indiana,  as  I 
understand  it,  is  whether  tho  Legislature,  in  the  exercise  of  this 
power  conferred  upon  it  by  the  Federal  Constitution,  is  bound  by  its 
State  constitution  If  It  amounts  to  that.  I  should  say  a  Legislature 
is  bound  to  observe  the  State  constitution  as  well  as  the  Constitution 
of  the  United  States,  both,  unless  they  conflict.  If  there  be  a  con 
flict  between  them,  then  we  all  know  that  the  Federal  Constitution 
is  paramount;  but  I  think  the  Legislature  would  be  bound  by  the 
constitution  of  the  State  so  far  as  it  did  not  interfere  with  any  pro- 


92 


ELECTORAL  COMMISSION. 


vision  of  the  Constitution  of  the  United  States.  But  that  is  not  the 
<•.-i.se  1  am  arguing.  The  case  I  am  presenting  to  you  is  this  :  The  Con 
stitution  of  the  Unite<l  States  in  the  grant  of  power  has  said  to  the 
State  of  Louisiana,  "  You  may  appoint  certain  persons  as  electors  for 
President,  but  you  shall  not  appoint  O.  II.  firewater."  Now,  I  say, 
when  the  Constitution  says  that  to  the  State  of  Louisiana,  it  is  bind 
ing  upon  the  Legislature  and  upon  every  citizen  of  Louisiana.  Any 
appointment  therefore  made  in  defiance  of  that  provision  is  utterly 
void.  It  cannot  be  that  such  an  appointment  can  stand.  You  are  to 
inquire  here,  ''Who  and  how  many  electors  were  duly  appointed ;" 
and  I  put  it  to  every  member  of  this  Commission  if  he  can  say,  that 
a  man  whom  the  Constitution,  which  is  above  us  all  and  which  we 
all  swear  to  support,  says  shall  not  be  an  elector,  shall  nevertheless 
be  an  elector,  and  that  his  appointment  as  such  is  according  to  the 
Constitution  ? 

Mr.  Commissioner  MORTON.  I  ask  the  gentleman  this  question, 
whether  it  is  competent  for  a  State  by  her  constitution  to  add  to  the 
qualifications  required  for  United  States  Senators? 

Mr.TRUMBULL.  Undoubtedly  not.  That  has  been  settled.  That 
is  another  question.  I  do  not  see  its  applicability  to  this  poinr. 
There  are  some  cases  in  Louisiana  which  I  shall  leave  for  my  associ 
ate,  Judge  Campbell,  to  discuss,  of  persons  inhibited  by  the  consti 
tution  of  Louisiana  from  holding  any  office;  for  instance,  the  law  of 
Louisiana  specifically  and  in  terms  declares  that  no  supervisor  of 
election,  that  is,  no  person  who  has  charge  of  all  this  election  ma 
chinery,  shall  bo  a  candidate  for  any  office  at  the  election  which  he 
superintends.  Yet  in  defiance  of  that  statute,  one  of  the  Hayes  elect 
ors  was  a  supervisor  of  registration  managing  the  election  when  ho 
himself  was  a  candidate.  I  do  not  propose  to  go  into  that.  I  am 
speaking  of  the  other  cases  of  United  States  officers:  there  are  two 
of  them  who  claim  to  have  been  chosen  electors.  What  is  the  an 
swer  to  the  suggestions  that  such  persons  cannot  bo  electors?  My 
distinguished  friend  [Mr.  Evarts]  says  the  Constitution  does  notexe- 
cure  itself. 

Mr.  Commissioner  BRADLEY.  Allow  me,  Mr.  Trumbull.  The 
proposition  No.  6  is  that  Brewster  was  surveyor-general  at  the  time  of 
the  election. 

Mr.  TRUMBULL.    Yes,  sir. 

Mr.  Commissioner  BRADLEY.  Do  you  include  and  intend  to  prove 
that  he  was  such  at  the  time  of  giving  his  vote  ? 

Mr.  TRUMBULL.  No,  sir ;  at  the  time  of  his  appointment ;  he  was 
appointed  at  the  time  of  the  election.  I  do  not  wish  to  state  it 
stronger  than  it  is.  I  understand  that  he  tendered  his  resignation 
some  time  in  November  after  the  election,  and  it  was  accepted  very 
singularly  to  date  back  before  the  election,  although  the  resignation 
was  not  offered  until  some  time  after,  as  Mr.  Brewster  himself  stated 
under  oath. 

Mr.  Commissioner  THURMAN.  Let  me  ask  you  a  question,  Judge 
Trumbull.  The  law  of  Louisiana,  as  I  understand,  provides  that  if 
an  elector  who  has  been  chosen  or  appointed  does  not  appear  by  a 
certain  hour  the  remaining  electors  shall  proceed  to  fill  the  vacancy  ? 

Mr.  TRUMBULL.  Yes,  sir  ;  there  is  such  a  provision  in  the  act  of 
1868. 

Mr.  CARPENTER.    And  nowhere  else. 

Mr.  Commissioner  EDMUNDS.  I  understand  Judge  Trumbull  con 
tends  that  act  is  not  in  force. 

Mr.  Commissioner  THURMAN.  But  if  that  law  is  in  force,  and  he 
did  not  appear  at  the  time,  as  the  certificate  reads,  then  no  matter 
whether  he  was  an  officer  or  not,  there  was  a  vacancy  under  that  law, 
was  there  not? 

Mr.  TRUMBULL.    No,  sir. 

Mr.  Commissioner  THURMAN.    Under  the  law  of  1868  ? 

Mr.  TRUMBULL.  I  do  not  consider  that  there  was ;  I  understand 
that  there  was  not.  The  statutes  of  the  United  States  make  two 
provisions:  one  is  for  filling  any  vacancies  which  may  occur  in  the 
college  when  such  college  meets  to  give  its  electoral  votes  ;  the  other 
is  when  a  State  has  held  an  election  for  the  purpose  of  choosing  elect 
ors,  and  has  failed  to  make  a  choice  on  the  day  prescribed  by  law, 
^the  elector  may  be  appointed  on  a  subsequent  day,  in  such  manner 
as  the  Legislature  of  the  State  may  direct.  Here  was  no  choice.  It 
was  just  as  if  two  persons  had  received  the  same  vote. 

Mr.  Commissioner  THURMAN.  I  do  not  think  you  comprehend 
my  question.  Is  not  the  real  question,  whether  there  was  any  power 
to  ill  1  a  vacancy  in  the  remaining  members  of  the  board  ?  Suppose 
this  man  had  been  qualified,  but  did  not  appear. 

Mr.  TRUMBULL.  Then,  if  this  statute  was  in  force,  the  other 
electors  could  have  filled  the  vacancy. 

Mr.  Commissioner  THURMAN.    But  suppose  it  were  not  ? 

Mr.TRUMBULL.  Then  there  is  no  law  authorizing  the  fillino-  of 
the  vacancy 

5Jr'  n^mi™ioner  HUNTON-    Except  by  popular  election. 

air.  1  UMBULL.  That  brings  up  complicated  questions.  The 
statute  of  1872  provides  for  filling  all  vacancies  by  popular  election. 

that  statute  is  in  force  then  the  vacancy  would  have  to  be  filled  by 
a  popular  election.  If  the  law  of  1868  were  in  force,  then  one  of 
those  elected  being  absent  would  give  the  others  authority  to  fill  the 
vacancy,  provided  anybody  had  ever  been  elected.  If  you  will  look 
at  the  statute  of  1868  you  will  find  it  says  : 

whateverto6  tt  mi—  °f  th6  elector8  cnosen  by  the  people  shall  fail  from  any  cause 


We  insist  that  these  men,  Brewster  and  Levissee,  were  never  chosen 
by  the  people,  and  could  not  bo  chosen  by  the  people  ;  it  was  utterly 
out  of  their  power  to  choose  them.  As  to  the  other  provision  of  the 
law  of  the  United  States  there  is  no  statute  in  Louisiana  authorizing 
the  supplying  of  this  want  of  an  election  on  the  7th  of  November, 
unless  it  be  the  statute  of  1872,  and  so  there  must  be  a  popular  elec 
tion  if  that  applies. 

But  I  was  about,  when  interrupted,  to  reply  to  the  suggestion  that 
the  Constitution  did  not  execute  itself.  That  is  true  in  reference  to 
some  things;  but  it  is  untrue  in  reference  to  a  great  many  other 
things.  If  you  will  refer  to  the  Constitution  of  the  United  States 
you  will  find  that  a  great  many  of  its  provisions  do  execute  them 
selves.  Look  at  section  10  of  article  1.  You  will  observe  that  this 
is  an  inhibition  on  the  State,  and  such  provisions  do  execute  them 
selves.  No  law  of  Congress  could  execute  them.  How  could  you 
punish  a  State  for  not  obeying  the  Constitution  of  the  United  States? 
The  Constitution  says  that  no  State  shall  appoint  a  public  officer  an 
elector.  The  Constitution  of  the  United  States  says: 
No  State  shall  *  *  *  emit  bills  of  credit. 

Suppose  a  State  does  emit  bills  of  credit,  are  they  not  void  ?  Did 
not  the  Supremo  Court  of  the  United  States  nearly  half  a  century 
ago  decide  in  the  Missouri  case  that  bills  of  credit  issued  by  the  State 
of  Missouri  were  utterly  void  ;  and  where  is  the  statute  making  them 
void  ?  How  many  times  has  the  Supreme  Court  decided  that  a  law 
passed  by  a  State  impairing  the  obligation  of  a  contract  is  void?  Is 
there  any  statute  of  the  United  States  declaring  that  if  a  State  passes 
a  law  impairing  the  obligation  of  a  contract  it  shall  be  void?  Would 
it  not  be  an  absurdity  to  pass  such  a  statute  ?  Could  a  United  States 
statute  impose  a  penalty  on  a  State  for  passing  an  ex  post  facto  law  .' 
Do  you  propose  to  put  a  State  in  prison  or  to  fine  a  State  ?  All  these 
inhibitions  on  the  State  execute  themselves.  The  case  referred  to  in 
Mississippi  in  regard  to  the  importation  of  slaves  into  that  State  is  en 
tirely  different,  governed  by  different  considerations.  The  constitu 
tion  of  Mississippi  provided  that — 

The  introduction  of  slaves  into  this  State  as  merchandise,  or  for  sale,  shall  bo 
prohibited  from  and  after  the  1st  day  of  April,  1833. 

That  was  a  provision  for  the  Legislature  to  prohibit  the  importa 
tion  for  certain  purposes  after  a  certain  time. 

I  certainly  need  not  take  up  the  time  of  this  honorable  Commission 
further  to  show  that  certain  provisions  of  the  Constitution  are  self- 
executing.  There  is  not  a  person  upon  it  who  does  not  know  that  it 
has  been  decided  over  and  over  again  that  these  inhibitions  upon  the 
States  are  self-executing. 

There  is  only  one  other  suggestion  to  be  made  in  regard  to  this  dis 
qualified  elector,  and  that  is  that  he  was  not  a  de  facto  elector;  but 
if  he  was  such  his  acts  as  a  de  facto  officer  are  no  more  valid  than 
the  acts  of  the  Tilden  electors.  The  duties  of  the  office  of  elector 
are  all  performed  at  one  time.  It  is  simply  to  cast  a  vote,  and  Mc- 
Enery  and  his  associates  met  together  at  the  proper  place,  on  the 
proper  day,  and  cast  their  vote.  They  were  officers  de  facto  just  as 
much  as  was  Brewster.  But  neither  of  them  was  an  officer  de  facto  in 
the  sense  that  the  acts  of  an  officer  de  facto  are  to  stand  ;  and  why  ? 
Because  the  reason  of  the  rule  that  gives  validity  to  the  acts  of  de 
facto  officers  has  no  application  whatever  to  the  act  of  a  person  who 
has  a  single  duty  to  perform,  and  that  act  incomplete.  The  object 
of  the  law  recognizing  the  acts  of  de  facto  officers  as  valid  is  the 
security  of  the  public.  The  people  having  business  before  officers 
cannot  stop  to  investigate  their  legal  authority  to  the  offices  they 
occupy ;  and  hence,  so  far  as  the  public  and  business  interests  are 
concerned,  their  acts  are  valid.  What  act  had  this  elector  ever  per 
formed  that  affected  the  public  interest  until  this  vote  is  counted  ? 
The  reason  that  has  led  to  the  adoption  of  the  rule  in  regard  to  de 
facto  officers  has  no  application  to  such  a  case. 

I  have  taken  so  much  more  time  than  I  intended  that  I  must  close 
without  discussing  some  other  points  ;  and  I  do  so  by  saying  that  if 
a  man  is  to  bo  made  President  of  the  United  States  by  counting  the 
votes  of  Levissee,  Brewster,  and  their  associates  from  Louisiana,  it 
will  be  by  the  mere  form  of  law,  contrary  to  the  principles  of  the 
Constitution  and  in  violation  of  the  rights  of  the  people. 

Mr.  MERRICK.  Mr.  President,  I  ask  leave  on  behalf  of  Messrs. 
Green,  Hoadly,  and  myself  to  file  a  brief  on  the  subject  of  the  elect 
oral  votes  of  Levissee  and  Brewster. 

The  PRESIDENT.     I  think  I  may  receive  it. 

Mr.  EVARTS.    Let  us  have  copies. 

Mr.  MERRICK.     Certainly. 

Mr.  TRUMBULL.  If  the  Commission  please,  in  justice  to  my  asso 
ciate  I  really  think  that  all  the  time  I  have  occupied  ought  not  to  be 
taken  from  his,  as  I  was  frequently  interrupted. 

The  PRESIDENT.  I  shall  submit  that  matter  to  the  Commission 
when  Mr.  Campbell  asks  for  time. 

Mr.  Commissioner  PAYNE.  I  move  now  that  the  time  consumed  by 
interruptions  of  the  Commission  be  not  counted. 

The  PRESIDENT.    I  had  no  definite  count  of  the  time  so  consumed, 

Mr.  Commissioner  BAYARD.  I  should  like  to  ask  Mr.  Trumbull 
whether  there  is  any  statute  of  Louisiana  requiring  a  certificate  from 
the  governor  of  the  appointment  of  electors. 

Mr.  TRUMBULL.  There  is  a  statute  of  Louisiana  which  I  will  re 
fer  to  which  requires  the  governor  to  commission  all  officers  except 
certain  persons  who  are  named,  of  which  an  elector  is  not  one 


ELECTORAL  COMMISSION. 


93 


Mr.  Commissioner  BAYARD.  That  is  the  law  of  1872.  Is  there 
any  statute  requiring  the  governor  to  issue  a  certificate  of  election  to 
the  electors  ? 

Mr.  TRUMBULL.  Not  specifically,  but  there  is  a  statute  of  Loui 
siana  and  a  provision  of  the  constitution.  The  act  of  1872,  section 
'25,  provides — 

That  it  shall  be  the  duty  of  the  governor  f,o  commission  all  officers-elect  except 
members  of  the  General  Assembly,  the  governor,  and  the  members  of  the  police 
jury. 

Mr.  Commissioner  BAYARD.  Is  there  any  other  provision  than 
that? 

Mr.  TRUMBULL.  I  do  not  remember  any  other  provision.  I  am 
iuformed  that  there  is  no  constitutional  provision,  and  that  is  the 
only  provision  of  the  statute  I  can  call  attention  to  at  this  moment. 

Mr.  Commissioner  STRONG.  It  would  be  a  great  convenience  to 
some  of  us  if  we  could  have  copies  of  the  offers  of  evidence.  I  heard 
them  read. 

Mr.  CARPENTER.  I  will  see  that  the  judges  are  furnished  with  a 
copy  to-night  before  nine  o'clock. 

Mr.  Commissioner  EDMUNDS.  Only  a  very  few  of  the  Commission 
have  been  able  to  obtain  copies. 

Mr.  CARPENTER.  I  will  see  that  all  of  them  are  supplied  to-night. 
If  the  Commission  please,  I  ask  permission  for  about  live  minutes  to 
cite  some  authorities  on  some  of  our  points,  so  that  they  may  be  be 
fore  the  counsel  on  the  other  side  before  they  close,  as  I  understand 
we  have  the  close.  Is  there  objection  to  that  I 

The  PRESIDENT.     Some  not  in  your  brief  ? 

Mr.  CARPENTER.  One  or  two  not  in  our  brief.  Five  minutes 
will  suffice. 

The  PRESIDENT.    I  suppose  there  is  no  objection  to  that. 

Mr.  EVARTS.  None  at  all.  We  understood  they  have  the  right 
to  have  three  counsel  speak  if  they  choose,  aud  it  comes  out  of  their 
time. 

Mr.  CARPENTER.  That  is  the  way  we  understood  it.  If  for  in 
stance  tke  discussion  had  proceeded  under  the  formal  rule,  we  should 
have  had  fifteen  minutes  on  each  offer,  and  could  have  taken  the  time 
with  one  counsel  on  one  objection  and  another  on  another. 

The  PRESIDENT.  Are  there  three  counsel  to  speak  on  your  side 
on  this  question  ? 

Mr.  CARPENTER.  Yes,  sir ;  counting  me  for  five  minutes  as  coun 
sel. 

The  PRESIDENT.    Then  two  are  required  to  open. 

Mr.  TRUMBULL.  If  the  Commission  please,  in  regard  to  our  offer 
of  testimony,  some  of  it  is  in  manuscript.  I  would  suggest,  if  it  is 
proper  for  me  to  do  so,  that  the  clerk  be  directed  to  have  it  printed, 
that  you  may  get  a  copy  of  it. 

Mr.  Commissioner  GARFIELD.    We  had  better  have  it  all  printed. 

The  PRESIDENT.  I  presume  there  will  be  no  objection  to  having 
it  printed. 

Mr.  CARPENTER.   We  offer  to  prove,  and  it  is  a  conceded  fact 

The  PRESIDENT.  I  want  it  distinctly  understood  that  the  rule 
which  I  have  prescribed  is  that,  if  three  counsel  are  to  be  heard  on  a 
side,  two  shall  open  and  only  one  in  conclusion. 

Mr.  CARPENTER.  So  I  understand.  We  offer  to  prove  and  it  is 
admitted  as  a  fact  that  Governor  Kellogg,  who  issued  the  certificate 
here  to  the  electors,  is  the  same  individual  as  elector  Kellogg  certified 
to  by  him.  On  page  38  of  my  brief  I  have  cited  the  authorities  to 
show  that  a  person  cannot  appoint  himself.  The  king  is  the  fountain 
of  honor  and  of  office,  but  he  cannot  exercise  the  duties  of  an  office  to 
which  he  might  make  an  appointment. 

It  was  decided  in  33  Barbour,  cited  on  this  brief,  that  where  three 
officers  had  the  power  to  appoint  an  officer  they  could  not  appoint  one 
of  their  own  number,  it  being  all  an  enlargement  of  that  proverb  of 
the  law  that  no  man  can  be  a  judge  in  his  own  case  and  that  no  man 
can  exercise  the  functions  of  his  office  for  his  own  benefit.  In  this 
case  the  distinction  between  a  man's  appointing  himself  and  issuing 
a  certificate  which  would  be  conclusive  evidence  that  he  had  been 
appointed  is  too  nice  to  be  substantial,  and  it  falls,  we  think,  within 
that  well-settled  principle  that  no  public  officer  can  certify  anything 
for  his  own  benefit ;  that  is,  in  which  ho  holds  an  interest  at  the  time 
he  makes  the  certificate.  Upon  that  point,  in  addition  to  the  cases 
cited  in  the  brief,  I  want  to  call  attention  to  the  case  of  McKnight  vs. 
Lewis,  5  Barbour's  Reports,  page  584.  In  that  case  a  note  had  been 
protested  by  a  notary  ;  he  afterward  became  the  owner  of  the  note, 
and  the  question  was  whether  he  could  read  in  his  own  favor  the  cer 
tificate  which  he  made  as  notary  public  of  the  protest  of  the  note 
This  is  what  the  court  say  about  it : 

The  next  objection  is  that  the  official  protest  and  certificate  of  the  intestate  were 
admitted  in  evidence  in  favor  of  the  plaintiff,  who  is  his  representative.  At  the 
time  J.  E.  McKnight  made  his  protest  and  memoranda  of  notice  at  his  foot,  he 
had  no  interest  in  the  note.  He  had  authority  by  law,  and  was  competent  in  the 
particular  case,  to  present  and  demand  payment  of  it  and  to  give  the  notice  of  re 
fusal,  and  also  to  make  officially  the  protest  and  memoranda  which,  in  a  certain 
contingency,  the  statute  bad  declared  presumptive  evidence  of  such  dishonor  and 
notice.  The  certificate  of  an  officer,  when  by  law  evidence  for  others,  is  competent 
testimony  for  the  officer  himself,  provided  he  was  competent,  at  the  time  of  making 
it,  to  act  officially  in  the  matter  to  which  it  relates.  This  doctrine  is  applied  daily 
in  cases  of  justices  of  the  peace,  sheriffs,  constables,  and  other  officers.  No  one 
will  doubt  that  a  commissioner  of  deeds  or  judge  who  takes  and  certifies  the  ac 
knowledgment  of  the  execution  of  a  deed  conveying  laud,  and  who  subsequently 
purchases  the  same  land,  may  use  his  own  certificate  to  prove  the  execution  of  the 
conveyance  to  his  grantor. 


Witnesses  who  have  been  examined  and  afterward  become  interested,  and  are 
made  parties  in  the  same  suit,  have  been  permitted  to  read  their  depositions  in  their 
own  favor. 

All  stating  the  ground  to  be  that  in  order  to  make  the  certificate 
available  in  his  own  favor  it  must  be  shown  that  he  had  no  interest 
in  it  at  the  time  the  certificate  was  made.  The  case  cited  on  the  brief 
from  Aiistruther  held  that  a  sheriff  could  not  certify  his  own  neglect 
on  an  excuse  for  his  neglect.  He  must  make  his  affidavit  to  that. 
He  could  not  use  the  functions  of  his  office  to  certify  anything  in  his 
own  favor.  Now  the  doctrine  applied  to  this  case  is  this :  Governor 
Kellogg's  certificate  to  himself  is  worthless.  It  is  no  evidence  that  he 
was  duly  appointed  elector  at  all.  In  the  case  of  a  sheriff  it  is  uni 
versally  well  known  to  all  the  judges  that  where  a  sheriff  on  process 
in  a  case  between  other  parties  makes  a  return  which  afterward  be 
comes  material  in  a  suit  against  him,  aud  he  offers  it  in  evidence,  even 
in  that  case  where  he  made  it  upon  process  between  other  parties,  at 
the  time  merely  performing  his  duty,  when  he  comes  to  claim  any 
benefit  to  himself,  it  is  only  prima  facie  evidence. 

Then  to  show  that  Kellogg  was  duly  appointed  you  have  got  to  go 
behind  the  certificate  of  Kellogg.  He  cannot  appoint  himself;  he 
cannot  certify  that  he  is  appointed;  and  when  you  get  behind  that 
certificate  Avhat  do  you  come  to  ?  You  come  to  the  certificate  of  this 
canvassing  board.  It  will  be  claimed  undoubtedly  by  niy  honorable 
friends  that  there  you  must  stop.  But  what  is  the  effect  of  that  cer 
tificate  of  the  returning  board?  Its  character  as  evidence  is  deter 
mined  by  the  law  which  makes  it  evidence.  That  law  says  that  the 
certificate  of  the  returning  board  when  filed  with  the  secretary  of 
state  shall  be  prima  facie  evidence  in  all  courts  and  before  all  civil 
officers  until  set  aside  by  contest. 

What  is  prima  fade  evidence?  It  is  evidence  that  may  be  dis 
puted;  and  when  the  Legislature  says  a  certain  paper  shall  be  prima 
fable  evidence  in  all  courts  aud  before  all  officers,  it  says  in  effect  that 
in  all  courts  and  before  all  officers  you  may  dispute  it.  The  Supreme 
Court  of  ^he  United  States  in  two  or  three  cases  have  defined  what 
prima  facie  evidence  is  and  so  defined  it.  It  is  that  evidence  which  of 
itself  and  uncoutradicted  would  be  sufficient  to  establish  the  fact, 
but  which  is  always  controvertible.  So  we  say  this  returuing  board's 
certificate  is  not  conclusive.  The  statute  says  it  shall  not  be  con 
clusive  ;  it  says  it  shall  be  prima  facie,  and  prima  fade  means  disputa 
ble.  Then  you  must  go  back  of  that  to  the  fact  in  order  to  prove  that 
Kellogg  was  elected;  or,  if  it  is  not  necessary  for  them  affirmatively 
to  go  back  to  show  that  he  was  elected,  it  is  certaiuly  competent  for 
us  to  go  back  to  show  that  he  was  not,  or  else  you  give  that  certifi 
cate,  which  the  law  says  shall  be  only  prima  facie  evidence,  the  full 
force  aud  effect  of  conclusive  evidence. 

I  want  to  cite  also  without  comment,  upon  the  same  subject,  the 
case  of  Ohio  vs.  Taylor,  12  Ohio  State  Reports,  132. 

I  also  call  attention  to  the  case  of  Sublett  vs.  Tread  well,  in  47  Mis 
sissippi  Reports,  '266,  and  will  read  simply  one  clause  from  the  sylla 
bus: 

The  majority  candidate,  having  been  a  registrar  of  voters  preparatory  to  the  elec 
tion  at  which  he  was  a  candidate  and  elected,  was  thereby  disqualified  and  his 
election  was  void. 

The  PRESIDENT.    The  other  side  may  now  proceed. 

Mr.  STOUGHTON.  Mr.  President  and  gentlemen,  I  have  hoard  in 
the  course  of  to-day  some  objections  made  which  I  think  may  well 
be  disposed  of  first  and  briefly.  We  are  somewhat  surprised  to  hear 
it  objected  that  the  certificate  of  Governor  Kellogg  is  inoperative  for 
the  purpose  of  certifying  to  this  tribunal  the  electoral  vote.  I  think 
it  will  be  remembered  that  when  the  vote  of  Connecticut  was  count 
ed,  her  governor,  Ingersoll,  was  an  elector  at  large.  I  think  his  cer 
tificate  was  received  without  objection.  Such  objections  are  hardly 
suitable  to  the  dignity  of  the  occasion. 

It  has  been  objected  this  morning,  and  argued  with  much  zeal,  that 
Governor  Kellogg  is  not  the  governor  of  Louisiana.  It  has  been  said 
that  Louisiana  is  governed  by  a  military  despotism,  by  which  I  sup 
pose  is  meant  that  military  force  which,  on  application  sent  by  Gov 
ernor  Kellogg  to  the  President,  he  ordered  to  Louisiana,  for  the  pur 
pose  of  suppressing  insurrection.  I  think  the  learned  counsel  was 
right  in  saying  that  without  such  aid  the  government  of  which  Gov-. 
eruor  Kellogg  is  the  head  would  have  been  overturned  ;  but  is  the  gen 
tleman  aware  that  the  very  fact  that  Governor  Kellogg  made  such  an 
application,  the  very  fact  that  it  was  granted,  is  decisive  evidence  here 
that  he  was,  until  his  term  expired,  governor  of  the  State  of  Louisi 
ana?  Need  I  tell  the  learned  counsel  that  ? 

I  beg  leave  to  refer  this  Commission  for  one  moment  to  the  case  of 
Luther  vs.  Borden,  where  that  question  was  decided,  and  where  it  was 
held  that  the  very  fact  that  the  President  of  the  United  States  had 
recognized  the  then  governor  and  government  of  Rhode  Island,  al 
though  he  had  not  sent  a  military  force  for  the  purpose  of  suppress 
ing  the  Dorr  insurrection,  was  evidence  conclusive  of  who  was  the 
governor  of  that  State  and  what  was  its  government.  Has  my  learned 
friend  forgotten  that  case  ? 

Mr.  TRUMBULL.     Did  the  court  say  that  was  conclusive  ? 

Mr.  STOUGHTON.  I  mean  to  say  conclusive  until  the  Congress  of 
the  United  States  in  its  capacity  as  such  shall  determine  otherwise. 

Mr.  TRUMBULL.     Could  not  either  House  contradict  it  ? 

Mr.  STOUGHTON.  No.  I  am  amazed  at  some  of  the  doctrines 
which  I  have  heard  announced  here,  and  this  is  one  of  them,  and  I 
pass  from  it,  for  this  tribunal  is  eutirely  familiar  with  the  doctrine 


94 


ELECTORAL  COMMISSION. 


decided  in  the  case  referred  to,  binding  upon  every  department  of  the 
Government,  decided  by  a  court — perhaps  the  counsel  did  not  enter 
tain  the  same  opinion  of  it  then  that  he  does  now — presided  over  by  a 
.judge  eminent  for  his  learning  and  for  his  integrity,  and  I  may  add 
for  the  greatness  of  his  abilities,  Chief-Justice  Taney. 

Now  let  me  state  briefly  and  generally  what  the  question  is  that 
counsel  here  are  expected  to  argue.  I  think  I  may  say  it  comprehends 
substantially  the  whole  case ;  and  yet  it  comes  up  upon  an  offer  to  do 
\\  In!  ?  It  comes  up  upon  an  offer  to  prove  by  a  search  and  scrutiny 
of  many,  if  not  all,  the  polls  of  Louisiana,  what  in  fact  was  the  vote 
of  that  State  for  electors  last  November.  Many  other  facts  are  su- 
prr.ulded.  It  comes  up  upon  an  offer  to  prove  facts  upon  which  it  is 
insisted  that  this  tribunal  may  overrule,  disregard,  go  behind  the 
act  ion  of  the  final  returning  officers  of  that  State  mid  hold  for  naught 
I  heir  conclusions.  They  acted  under  a  statute  to  which  I  will  call 
the  attention  of  the  tribunal  for  a  moment;  and  in  the  course  of 
what  I  shall  have  to  say  I  shall  satisfy  this  tribunal  beyond  all  ques 
tion  that  that  board  as  constituted  had  the  power  delegated  to  it  by 
the  State  of  Louisiana,  as  a  little  patience,  a  little  intelligence,  will 
demonstrate,  to  determine  the  number  of  votes  cast  for  electors,  and 
power  to  certify  finally  so  far  as  the  authority  of  that  State  is  con 
cerned  who  they  were.  Confusion  rather  than  clearness  has  resulted 
n  l.i live  to  these  statutes;  owing  somewhat  I  conceive  to  their  ar 
rangement.  I  shall  take  some  pains,  for  the  purpose  of  showing 
that  the  board  was  a  final  tribunal  empowered  by  the  State  to  de 
termine  who  had  been  chosen  electors,  to  call  attention  to  the  differ 
ent  statutes,  after  a  careful  examination  of  which  it  will  be  clear  that 
the  board,  and  that  only,  and  not  the  governor  of  the  State  as  has 
been  suggested,  was  the  authorized  power  for  the  purpose  named ; 
and  I  shall  satisfy  the  Commission,  moreover,  that  the  objection  raised 
yesterday  by  the  learned  counsel,  [Mr.  Carpenter,]  that  if  there 
should  happen  to  be  a  vacancy  in  the  electoral  college  it  must  be 
lil led  by  a  popular  election  and  could  not  be  filled  by  the  electoral 
college  itself,  has  no  foundation  whatever.  • 

It  seems  to  me  that  the  decision  of  this  tribunal  in  the  Florida  case 
determines  the  entire  question  here  raised  as  to  the  right  to  go  be- 
hi  ud  the  returning  board ;  and  I  beg  leave,  in  order  that  we  may  move 
Avith  chart  in  hand,  to  read  what  this  tribunal  did  in  that  case  decide 
and  determine  : 

The  ground  of  this  decision,  stated  briefly,  as  required  by  said  act,  is  as  follows: 
That  it  is  not,  competent  under  the  Constitution  and  the  law,  as  it  existed  at  tlie 
dute  of  the  passage  of  said  act,  to  go  into  evidence  ahunde  on  the  papers  opened 
by  the  President  of  the  Senate  in  the  presence  of  tbe  two  Houses  to  prove  that 
other  persons  than  those  regularly  certified  to  by  the  governor  of  the  State  of 
Florida,  in  and  according  to  the  determination  aiid  declaration  of  their  appoint 
ment  by  the  board  of  State  canvassers  of  said  State  prior  to  the  time  required  for 
the  performance  of  their  duties,  had  been  appointed  electors,  or  by  counter-proof 
to  show  that  they  had  not,  and  that  all  proceedings  of  the  courts  or  acts  of  the 
Legislature,  or  of  the  executive  of  Florida,  subsequent  to  the  casting  of  the  votes 
of  the  electors  on  the  prescribed  day  are  inadmissible  for  any  such  purpose. 

I  am  unable  to  perceive  from  that  determination  that  any  ques 
tion,  much  less  the  main  question  here  directed  to  be  argued,  is  open 
for  argument.  The  manifest  justice  of  that  conclusion,  if  support 
can  be  obtained  from  such  a  source — I  speak  with  great  respect — 
is  to  be  found  in  the  report  of  the  committee  of  the  Senate  of  the 
United  States,  of  which  the  learned  counsel,  Mr.  Trumbull,  was  a 
member,  from  the  portion  of  which  report  that  I  shall  read  he  not 
only  did  not  dissent,  but  by  expressly  dissenting  from  other  portions 
ho  did  assent  to  this ;  so  that  we  have,  before  his  conversion  to  a  dif 
ferent  doctrine,  his  adhesion  to  the  opinion  announced  by  this  Com 
mission,  and  that  conclusion  thus  stated  is  as  follows : 

The  committee  are  of  the  opinion  that  neither  the  Senate  of  the  United  States, 
nor  both  Houses  jointly,  have  the  power  under  the  Constitution  to  canvass  the  re 
turns  of  an  election  and  count  the  votes  to  determine  who  have  been  elected  presi 
dential  electors,  but  that  the  mode  and  manner  of  choosing  electors  are  left  exclu 
sively  to  the  States.  And  if  by  the  law  of  the  State  they  are  to  bo  elected  by  the  poo- 
pie,  the  method  of  counting  the  vote  and  ascertaining  the  result  can  only  be  refu- 
lated  by  the  law  of  the  State.  Whether  it  is  competent  for  the  two  Houses  un3cr 
the  twenty-second  .joint  rule,  (in  regard  to  the  constitutionality  of  which  the  com 
mittee  here  give  IK.  opinion,)  to  go  behind  the  certiiieato  of  the  governor  of  the 
State,  to  inquire  whether  the  votes  for  electors  have  over  been  counted  by  the 
legal  returning  ho:ird  created  by  the  law  of  the  State,  or  whether,  in  niakin"  such 
count,  the  board  had  before  them  the  official  returns,  the  committee  offer  no  sug 
gestions,  but  present  ouly  a  statement  of  the  facts  as  they  understand  them. 

So  careful  was  this  committee  that  it  doubted  its  power  to  go  far 
enough  behind  the  certificate  of  the  governor  to  learn  whether  the 
votes  for  electors  had  been  counted  by  the  proper  returning  board, 
lo  going  so  far  we  hero  make  no  objection  ;  but  when  the  purpose  is 
to  go  further,  to  violate  the  rule  laid  down  by  this  Commission,  to 
violate  the  principle  asserted  in  this  report,  to  violate  the  fundament 
al  law  of  the  Union,  the  Federal  Constitution,  which  provides  that 
electors  shall  be  appointed  in  such  manner  as  the  Legislature  of  the 
State  may  direct;  when  this  tribunal  is  asked  to  go  thus  far  and  by 
inquiry  ascertain  not  only  what  occurred  at  every  poll  throughout 
the  State  of  Louisiana,  but  to  purge  the  polls,  and  not  merely  to  do 
that,  but  to  ascertain  for  the  purpose  of  enforcing  the  law  of  Loui 
siana  whether  violence  and  outrage  and  intimidation  have  been  in 
i act  perpetrated,  and  bring  on  a  trial  of  the  entire  case  involving 
every  .parish  and  every  poll  of  Louisiana  within  the  circumference  o*f 
Federal  jurisdiction,  I  say  the  objection  to  such  testimony,  to  such  a 
course,  instead  of  being  technical,  becomes  substantial  in  the  last  de 
gree,  and  is  asserted,  not  on  behalf  of  ten  thousand,  (for  whom  my 


learned  brother  Carpenter  said  he  appeared,)  but  on  behalf  of  forty- 
odd  millions  of  people,  every  one  deeply  interested  to  preserve  the 
independence  of  the  State  from  the  aggressions  of  Congress  and  the 
Federal  power. 

What  is  the  theory  on  which  this  power  is  supposed  to  rest  ?  We 
are  referred  to  the  bill  organizing  this  Commission,  which  has  been 
read  as  though  the  tribunal  had  been  appointed  to  ascertain  what 
electors  were  duly  appointed,  not  in  the  sense  of  the  Constitution, 
but  in  another  and  aggressive  sense,  as  though  this  tribunal  had  been 
appointed  to  explore  and  ascertain  step  by  step,  from  the  time  the 
first  voter  presented  himself  at  the  ballot-box  until  the  time  when 
the  election  was  over,  what  had  been  its  course  and  what  had  been 
the  votes,  how  many,  and  for  whom.  The  law  under  which  this 
Commission  was  created  is  an  extraordinary  exhibition  of  subtlety 
and  of  care.  It  had  a  subject  to  deal  with  not  easy  of  solution.  We 
know  all  the  surrounding  circumstances  ;  we  know  the  causes  which 
led  to  the  framing  of  this  bill ;  and  we  know  why  its  language  was 
couched  so  inexpressively  of  power  delegated  here.  We  know  that 
conflicting  opinions  were  to  be  harmonized  not  by  uniting  upon  lan 
guage  which  had  meaning,  but  by  using  that  which  for  certain  pur 
poses  conveyed  none — I  mean  none  as  the  expression  of  an  opinion 
of  Congress.  And  so  tihs  tribunal  was  delegated  the  power  to  do  what  f 
To  exercise  such  powers,  if  any,  as  the  two  Houses  or  either  of  them 
had.  For  what  purpose  ?  For  the  purpose  of  counting  the  electoral 
votes. 

Now,  will  the  tribunal  permit  me,  little  entitled  as  I  am  to  attempt 
to  instruct  any  one,  much  less  a  member  of  this  body,  to  suggest  that 
there  has  been  a  great  confusion  of  ideas  presented  upon  this  subject. 
My  learned  brother,  Mr.  Carpenter,  yesterday  said  this  tribunal  had 
no  judicial  power;  I  suppose  he  was  right;  it  had  no  legislative 
power ;  I  suppose  he  was  right ;  but  had  a  parliamentary  authority 
to  investigate  and  take  testimony  by  any  means  it  pleased.  What  is 
a  parliamentary  power  ?  It  is  the  power  of  parliament.  And  what 
is  the  power  of  parliament  ?  To  legislate.  And  what  is  the  purpose 
of  taking  testimony  ?  It  is  that  legislative  bodies  may  be  better  in 
formed  as  to  how  they  should  legislate  upon  all  subjects ;  and  when 
a  legislative  body  takes  testimony  it  takes  it  to  inform  itself,  and 
hence  its  mode  of  taking  testimony  is  loose,  confined  by  no  rule, 
guarded  by  no  objection,  often  overturning  the  safeguards,  if  not  of 
society,  certainly  of  reputation,  carefully  protected  always  in  courts 
of  justice.  So,  with  a  wide,  unlicensed  discretion,  and  as  wide,  un 
licensed  power,  it  takes  testimony  when  and  where  it  pleases ;  but,  if 
it  discharges  only  its  duties  as  a  legislative  body,  always  for  the  pur 
pose  of  legislation  only,  unless  for  one  other  purpose,  and  that  is  to 
inquire  into  the  qualifications  of  its  own  members,  in  accordance 
with  that  clause  in  the  Constitution  which  permits  that  "  each  House 
shall  be  the  judge  of  the  elections,  returns,  and  qualifications  of  its 
own  members,"  a  very  familiar  clause.  But  is  each  House  jixlge  of 
the  elections,  returns,  and  qualifications  of  presidential  electors?  Has 
either  House  that  power?  Are  not  the  learned  counsel  here  seeking 
to  induce  this  body  to  exercise  exactly  that  power?  Is  there  any 
question  that  they  are  ? 

I  ask  every  gentleman  upon  this  Commission,  are  you  not  seeking 
by  this  course,  if  you  concur  in  the  views  of  the  counsel,  to  ascertain 
by  inquiry  and  testimony  whether  these  electors  have  been  properly 
elected,  returned,  and  qualified  ?  Let  every  man  pause  who  under 
takes  to  advance  toward  that  result.  I  repeat,  no  member  of  the 
Commission  can  discriminate,  assuming  the  evidence  offered  to  be 
competent,  between  the  power  of  the  House  to  investigate  as  to  the 
election,  return,  and  qualification  of  its  members,  and  the  power  here 
asserted. 

Again,  what  happens  if  this  testimony  shall  be  admitted  ?  Is  it  to 
be  assumed  that  it  will  not  be  controverted  by  counter-proof  ?  Cer 
tainly  not.  Then  are  you  to  undertake  to  execute  the  laws  of  Lou 
isiana  by  determining  as  matterjof  fact  whether  there  has  been  intimi 
dation,  violence,  armed  disturbance,  and  therefore  whether  this  board 
has  properly  performed  its  duty?  Is  that  a  function  which  can  bo 
exercised  by  this  tribunal  ?  It  must  be  if  you  enter  upon  the  inquiry 
suggested.  Is  it  not  as  well  to  leave  that  administration  of  State 
laws  to  the  States  ?  The  power  to  count  transferred  to  this  tribunal 
is  the  power  of  the  two  Houses  or  either  of  them.  That  power  if  it 
exists  is  subject  toother  constitutional  provisions;  and  one  is  that 
the  electors  of  the  several  States  are  to  be  appointed  in  such  manner 
as  the  Legislatures  thereof  may  direct.  How  has  the  Legislature  of 
Louisiana  directed  its  electors  to  be  appointed  ?  By  a  majority  of 
votes  lawfully  cast,  to  be  ascertained  and  the  appointment  of  electors 
finally  determined  and  declared  by  the  State  officers  appointed  by  its 
Legislature,  such  officers  having  exclusive  authority  so  to  do. 

The  national  power  to  count,  the  power  to  do  what  may  be  needful 
in  counting,  is  subject  to  that  power  of  each  State  to  appoint.  Where 
does  that  power  of  appointment  by  the  State  end  ?  Where  does  the 
power  to  count  begin  ?  Does  the  power  of  the  State  end  until  it  fully 
reaches  the  appointment  by  the  final  authority  delegated  by  the 
State  as  the  appointing  power  ?  The  State  of  Louisiana  has  but  one 
mode  of  expressing  its  will  upon  this  subject ;  that  is,  by  the  return 
ing  board.  It  may  not  have  been  the  best  way ;  but  it  is  its  mode  of 
expressing  its  will,  and  cannot  be  here  overthrown.  I  am  glad  to 
have  my  argument  on  this  point  confirmed  by  an  eminent  jurist  and 
honest  judge,  and  I  was  about  to  say  a  spotless  politician,  but  per- 


ELECTORAL  COMMISSION. 


95 


haps  that  would  be  going  too  far,  though  I  think  not.  I  allude  to  a 
letter  written  by  the  chief-justice  of  the  court  of  appeals  of  the  State 
of  New  York,  who  says : 

I  have  always  expressed  the  opinion  that  the  authentication  of  the  election  of  presi 
dential  electors,  according  to  the  laivx  of  each  State,  is  final  and  conclusive,  and,  that 
there  exists  no  power  to  go  behind  them, 

This  opinion  thus  concurs  with  this  tribunal  and  with  the  eminent 
gentlemen  who  made  the  report  in  the  Senate  in  1873. 

Mr.  Commissioner  MORTON.  I  would  inquire  of  the  counsel  when 
that  was  written  ? 

Mr.  STOUGHTON.  It  appears  to  have  been  dated  on  the  10th  of 
February,  1877. 

Mr.  Commissioner  BAYARD.    A  letter  by  Judge  Church  ? 

Mr.  STOUGHTON.  It  purports  to  be  signed  by  him,  and  doubt 
less  was  written  as  a  more  correct  expression  of  his  opinion  than 
was  given  by  an  interviewer,  that  class  of  gentlemen  not  being 
always  absolutely  accurate,  although  I  believe  very  g*3nerally  so. 

Mr.  Commissioner  ABBOTT.  Do  you  understand  that  to  express 
the  opinion  that  it  cannot  be  shown  that  fraud,  that  corruption,  that 
bribery  existed  in  obtaining  that  authentication  ?  I  do  not  so  under 
stand  it. 

Mr.  STOUGHTON.  I  understand  it  in  this  way,  and  there  is  no 
difficulty  in  understanding  it  if  one  will  only  place  his  mind  toward 
the  subject  and  in  the  right  road:  The  State  having  power  to  appoint 
is  responsible  for  its  tribunals  and  they  are  responsible  to  it ;  but 
the  circumference  of  the  power  of  Congress  is  limited,  and  that  of 
the  power  to  count  very  much  circumscribed,  being  neither  judicial, 
as  gentlemen  say,  nor  legislative,  although  legislative  powers  are 
claimed  for  the  purpose  of  taking  testimony,  and  the  broadest  judi 
cial  powers  in  the  nature  of  a  quo  warranto  for  the  purpose  of  going 
behind  the  final  returns  of  the  returning  board.  The  State  corrects 
the  frauds  of  its  officers.  It  does  not  appeal  to  Congress,  and  Con 
gress  will  best  perform  its  duty  by  discharging  it  within  its  author 
ity,  leaving  those  occasional  frauds  wjiich  are  sometimes  assumed 
and  sometimes  offered  to  be  proven  to  be  taken  care  of  by  the  tribunals 
having  jurisdiction  over  them. 

I  think  some  of  my  learned  friends  within  the  hearing  of  my  voice, 
who  have  been  much  engaged  in  contested  suits,  have  had  their  trials 
somewhat  added  to  by  being  compelled  to  object  to  testimony  offered 
in  presence  of  a  jury  (and  the  American  people  are  the  jury  to 
day)  to  prove  frauds  of  the  most  infamous  character,  when  peradven- 
ture  the  practice  and  performance  would  not  come  up  to  the  procla 
mation!  But  it  is  the  duty  of  counsel  to  make  objection  to  the 
introduction  of  testimony  beyond  the  function  of  the  tribunal  he  is 
before,  to  receive ;  and  we  make  it  here. 

And  now  I  proceed  to  look  at  some  of  the  questions  in  this  case, 
assuming  that  this  is  a  lawful  and  final  returning  board  of  the  State 
of  Louisiana,  having  the  final  powers  attributed  to  it,  not  merely  by 
this  body  in  the  decision  in  the  Florida  case,  not  merely  in  the  Sen 
ate  by  the  report  which  I  have  read,  not  merely  by  the  aid  of  the 
opinion  contained  in  the  letter  of  the  learned  chief-justice  of  New 
York,  but  having  also  the  sanction  of  the  highest  courts  of  the  State 
of  Louisiana.  I  believe  that  if  there  is  one  principle  settled  in  our 
jurisprudence,  it  is  that  on  a  question  of  local  law,  on  the  powers  of 
a  tribunal  of  a  local  character  within  a  State,  the  highest  judicial 
tribunal  of  the  State  acting  seasonably  is  a  final  authority.  That  is 
pretty  well  settled. 

I  therefore  cite  the  decision  of  the  highest  court  of  Louisiana  on 
the  subject  of  the  powers  of  the  returning  board,  not  in  one  case 
only,  but  in  several ;  in  25  Louisiana  Annual  Reportsfor  1873,  page 
268,  declaring  the  legality  of  the  Lynch  returning  board,  which  did 
not  have  before  it  in  1872  the  electoral  or  other  returns,  but  under 
took  to  canvass  and  did  canvass  the  vote  in  favor  of  the  Grant  elect 
ors  without  having  the  returns  before  it.  It  was  therefore  said,  if  I 
am  not  mistaken,  by  the  committee  of  Congress  that  inasmuch  as 
the  right  board  did  not  have  the  returns,  and  therefore  had  not  the 
materials  for  action,  and  the  wrong  board  did  have  the  returns  they 
could  not  count  the  votes  of  either  set  of  electors.  The  court  in 
Louisiana  in  the  case  to  which  I  have  referred  declares : 

No  statute  conferring  upon  the  courts  the  power  to  try  cases  of  contested  elec 
tions  or  title  to  office  authorizes  them  to  revise  the  action  of  the  returning  board. 
If  we  were  to  assume  that  prerogative  wo  should  have  to  go  still  further,  and  re 
vise  the  returns  of  the  supervisors  of  elections,  examine  the  right  of  voters  to 
vote,  and,  in  short,  the  courts  would  become  in  regard  to  such  cases  mere  offices  for 
counting,  compiling,  and  reporting  election  returns.  The  Legislature  has  seen 
proper  to  lodge  the  power  to  decide  who  has  or  has  not  been  elected  in  the  re 
turning  board.  It  might  have  conferred  that  power  upon  the  courts,  but  it  did  not. 
Whether  the  law  be  good  or  bad,  it  is  our  duty  to  obey  its  provisions,  and  not  to 
legislate.  *  *  *  Having  no  power  to  revise  the  action  of  the  board  of  return 
ing  officers,  we  have  nothing  to  do  with  the  reasons  or  grounds  upon  which  they 
arrived  at  their  conclusion. 

There  are  one  or  two  other  cases  in  this  same  book  to  the  same 
effect ;  and  when  it  was  sought  under  the  so-called  intrusion  act  to 
eject  a  person  who  had  been  returned  and  commissioned  by  the  force 
of  this  returning  board,  the  court  held  that  the  commission  was  con 
clusive,  and  that  the  court  could  not  go  behind  it.  There  was  no 
j  udicial  power  resting  in  the  court  to  go  behind  it  except  as  conferred 
specially  by  legislative  authority.  Some  courts  have  given  very  good 
reasons  for  thus  maintaining  the  inviolability  of  the  highest  and 
final  returning  board  of  a  State,  and  I  beg  leave  here  to  introduce 
two  or  three  such  decisions. 


Mr.  Commissioner  THURMAN.  What  is  the  name  of  the  case  you 
just  read  from  ? 

Mr.  STOUGHTON.  I  beg  pardon  for  not  mentioning  it.  It  was 
the  case  of  Bonner  vs.  Lynch,  and  I  read  from  page  268.  It  was  decided 
in  1873,  and  it  passed  upon  the  power  of  the  returning  board  organ 
ized  under  the  act  of  1870,  repealed  by  the  act  of  1872,  the  only  difference  1 
between  the  two  acts  being  in  this,  that  the.  act  of  1872  now  in  force 
requires  that  the  returning  officers  shall  be  appointed  by  the  senate, 
while  the  act  of  1870  designates  the  persona  to  act  as  the  board 
as  the  governor,  lieutenant-governor,  I  think,  and  two  persons,  nam 
ing  them.  That,  I  believe,  is  the  only  substantial  difference  between 
the  two  ;  and  therefore  when  the  supreme  court  of  the  State  of  Lou 
isiana  held  that  it  had  no  power  to  review  or  reverse  or  reviso  the 
action  of  the  returning  board  thtm  existing,  it  said  the  same  thing  a« 
to  the  returning  board  now  existing,  and  this  tribunal  will  not  dis 
regard  the  highest  judicial  authority  of  a  State  upon  a  purely  local 
question. 

Mr.  Commissioner  GARFIELD.  Were  the  duties  of  that  board  sub 
stantially  the  same  as  the  duties  of  this? 

Mr.  STOUGHTON.  Precisely  almost.  There  is  hardly  the  vari 
ation  of  a  line.  That  act  was  transcribed  for  the  purpose  of  makin^ 
it  the  act  of  1872.  Now,  I  refer  to  47  Illinois,  161),  where  a  statute 
had  expressly  authorized  a  circuit  court  consisting  of  a  single  judge 
to  pass  upon  a  contested-election  case  on  appeal  from  justices,  and  the 
constitution  giving  judicial  power  to  the  supreme  court  of  the  State 
conferred  it  in  certain  cases,  "  and  in  all  other  cases ;"  and  when  the 
supreme  court  on  appeal  in  this  case  was  asked  to  revise  the  decision 
of  the  circuit  court,  it  said  : 

This  is  not  a  case  within  the  meaning  of  (ho  constitution,  hut  a  statutory  pro 
ceeding  to  ree.aii  v.i.s.s  votes  cast  at  an  election,  in  which  illegal  votea  may  be  rejected 
and  legal  votes  may  be  counted  and  the  result  ascertained,  and  that  result  i.s  nut  .1 
judgment.  It  is  neither  a  suit  at  law  nor  in  chancery. 

Why  have  sensible  courts  adopted  views  like  that  ?  For  the  pur 
pose  of  keeping  these  inflammatory  cases  as  far  as  possible  outside  of 
the  reach  of  judicial  authority.  As  was  well  said  in  a  Kentucky  case 
which  I  will  refer  to,  courts  of  justice  have  always  held  in  dealing- 
with  these  questions  that  unless  the  legislative  power  expressly  del 
egates  authority  to  do  it,  courts  have  no  power  to  touch  election  con 
tests.  But  yet  here,  under  a  power  to  count  electoral  votes, this  tri 
bunal  is  expected  to  count  the  popular  v/otes  given  for  the  electors,  and 
to  purge  the  polls  from  the  beginning  to  the  end  of  the  election,  upon 
the  theory  that  it  has  the  power  by  implication  and  by  a  stretch,  an 
enforced  stretch,  an  outrage  upon  language,  which  courts  of  justice 
take  care  never  to  commit. 

I  refer  now  to  51  -Illinois,  177,  where  the   court  said  that — 
The  proceeding  was  purely  statutory ;  that  without  the  aid  of  an  act  of  the' 
Legislature  the  contest  could  not  have  been  brought  to  the  circuit  court,  and  that 
jurisdiction  can  be  exercised  only  subject  to  the  limitations  of  the  act. 

And  then  in  the  Kentucky  case,  1  Metcalfe's  Kentucky  Reports, 
538,  the  court  say  : 

This  was  a  board  to  determine  questions  upon  an  election.  A  board  is  to  be 
constituted  to  examine  the  poll-books  and  issue  certificates  of  election.  Another 
is  to  be  organized  in  the  case  of  contested  elections  for  determining  contests  be 
tween  claimants.  Upon  this  the  law  devolves  the  duty  and  confers  the  power  of 
deciding  who  is  entitled  to  the  office.  The  courts  have  no  right  to  adjudicate  upon 
these  questions  or  to  decide  such  contests.  Decisions  of  the  contesting  board  are 


iqnally 

portant  was  to  withdraw  these  contests  from  the  jurisdiction  of  courts,  and  as  was 
said  in  Newcombe  vs.  Kirkloy,  (13  B.  Monroe,  517,)  to  prevent  the  ordinary  tribu 
nals  of  justice  from  being  harassed  and,  indeed,  overwhelmed  with  the  investiga 
tion  and  involved  in  the  excitements  to  which  these  cases  may  be  expected  to  give 
rise. 

If  there  ever  was  an  illustration  of  the  solidity  and  policy  of  such 
a  view  it  is  to  be  found  here  before  us  where  this  great  tribunal  is 
asked  to  go  into  an  inquiry,  endless  in  detail,  harassing  by  its  very 
nature,  involving  the  examination  of  hundreds  of  witnesses,  and  lead 
ing  to  that  excitement,  to  be  tenfold  increased  by  such  a  perform 
ance,  which  we  already  perceive  gathering  about  this  tribunal.  Hero 
we  have  offers  of  testimony  inflamed  to  the  last  degree  by  their  mode 
of  statement,  involving  inquiries  of  the  most  extraordinary  and  pain 
ful  character,  leading  to  answers,  leading  to  testimony  in  reply,  lead 
ing  to  testimony  in  justification  of  the  returning  board,  endless,  diffi 
cult  of  procurement;  and  all  for  what?  To  enable  this  tribunal  to 
violate  the  supremacy  of  the  State,  to  determine  how  many  votes 
were  cast  in  the  State  of  Louisiana  for  electors ;  and  all  that  tho 
public  may  be  satisfied  that  we  have  here  a  tribunal  anxious  to  calm 
and  allay  excitement  and  prevent,  as  the  learned  counsel  who  opened 
the  case  yesterday  [Mr.  Carpenter]  said,  a  judicial  proceeding  to  vex 
the  nation  for  years,  that  it  may  thereby  be  determined  who  is  elected 
President.  I  have  heard  more  than  one  threat  couched  under  shields 
of  language  so  that  it  might  not  quite  reach  in  plain  terms  its  des 
tination,  but  I  have  understood  those  threats,  and  they  are  unworthy 
of  the  circumstances  under  which  this  tribunal  was  formed  and 
equally  unworthy  of  those  who  want  its  justice  and  its  decision. 

Now,  may  it  please  your  honors,  I  desire  to  say  a  few  words  on  tho 
subject  of  these  statutes.  My  learned  brother  [Mr.  Carpenter]  yes 
terday  insisted  that  this  returning  board,  as  it  has  been  called,  had 
no  power  under  the  laws  of  Louisiana  to  ascertain  the  votes  cast  for 
electors  or  who  had  been  elected.  He  said  if  that  power  existed  any 
where,  it  existed  in  the  governor  of  the  State  under  the  act  of  18G8 


96 


ELECTORAL  COMMISSION. 


incorporated  afterward  into  the  revised  laws  of  the  State  of  Louisi 
ana,  and  that  proposition  was  presented  as  though  the  laws  of  Louisi 
ana  had  at  one  time  discriminated  between  the  officer  or  tribunal  to 
count  votes  for  electors  and  the  officer  or  tribunal  authorized  to  count 
votes  for  other  State  officers.  That  is  a  misconception  of  that  law, 
and  I  call  attention  to  what  the  statute  law  on  that  subject  is.  But 
if  it  were  not,  if  the  governor  had  the  power  under  the  section  re 
ferred  to  to  count  the  vote,  this  tribunal  would  be  bound  under  the 
certificate  to  consider  that  power  as  having  been  properly  exercised, 
the  governor  having  certified  that — 

Pursuant  to  the  laws  of  the  United  States,  at  a  general  election  held  in  accord 
ance  with  law,  the  following-named  persons  were  duly  choseu  and  appointed 
electors. 

If,  therefore,  there  was  only  that  clause,  this  certificate  would  be 
ample  evidence  of  the  election  of  these  electors.  That  section  is : 

Immediately  after  the  receipt  of  a  return  from  each  parish,  or  on  the  fourth  Mon 
day  of  November,  if  the  returns  should  not  sooner  arrive,  the  governor,  iii  the  pres 
ence  of  the  secretary  of  state,  the  attorney-general,  a  district  judge  of  the  district 
in  which  the  sent  of  government  may  bo  established,  or  any  two  of  them,  shall 
examine  the  returns  and  ascertain  therefrom  the  persons  who  have  been  duly  elected 
electors. 

All  who  have  examined  the  statute  with  care  know  that  that  pro 
vision  has  been  repealed,  and  I  will  show,  in  an  orderly  way  I  trust, 
under  what  circumstances  it  was  repealed,  and  will  also  show  that 
instead  of  that  section  isolated  and  making  a  distinction  between 
the  officer  authorized  to  count  the  votes  for  electors  and  those  author 
ized  to  count  the  votes  for  other  officers  it  was  a  part  of  the  scheme 
of  the  act  of  1868,  by  which  the  governor,  in  conjunction  with  the 
district  judge  of  the  parish,  counted  the  votes,  the  governor  counting, 
subject  in  certain  cases  to  a  prior  determination  of  the  district  judge 
as  to  whether  there  had  not  been  violence,  tumult,  intimidation,  &c., 
sufficient  to  justify  the  throwing  out  of  the  polls,  and,  if  the  district 
judge  came  to  that  conclusion,  the  governor  being  inhibited  by  the 
statute  from  counting  the  vote.  The  governor  on  receiving  the  judge's 
decision,  if  it  was  to  reject  the  poll  or  any  number  of  polls,  was  au 
thorized  to  do  so  and  count  the  remainder;  but  he  could  not  count 
the  contested  parish  as  having  voted  until  after  receiving  the  decision 
of  the  district  judge.  That  was  the  scheme  of  18(58,  never  really  to 
any  extent  put  into  practice  ;  a  scheme  of  a  returning  board  very  im 
perfect,  quite  inadequate,  and  still  a  part  of  a  general  scheme  in 
which  the  governor  participated,  not  merely  by  ascertaining  the  votes 
for  electors,  but  by  ascertaining  and  certifying  as  to  all  votes. 

Auother  objection  was  raised,  and  I  will  dispose  of  that  before 
proceeding  further.  That  other  objection  made  by  the  learned  coun 
sel,  Mr.  Carpenter,  and  very  much  relied  upon,  was  this  :  That  if  a 
A'acaucy  should  occur  in  the  electoral  college  ho  did  not  care  how 
this  tribunal  determined  the  question  as  to  which  statute  was  in 
force,  and  of  which  he  still  had  enough  left  for  his  purpose,  he  could 
still  cast  out  two  electoral  votes,  which  seemed  to  me  somewhat 
strange  ;  his  purpose  being,,  as  he  told  us  at  the  outset,  to  appear  not 
for  Mr.  Tilden,  Avhose  future  supremacy  he  deplored  as  one  of  the 
great  disasters  that  might  befall  this  country,  but  for  the  ten  thou 
sand  persons  who  had  been  deprived  of  their  votes  in  Louisiana. 
But  he  said  that  a  rejection  by  this  tribunal  of  two  electoral  votes 
would  answer  his  purpose,  which  seemed  to  have  been  to  bring  upon 
us  the  calamity  he  so  much  deplored.  I  think  ho  will  be  disappointed. 
Let  us  look  at  this  objection.  Assuming,  as  the  learned  counsel  as 
sumed,  for  the  purpose  of  inquiring  into  this  objection,  that  the  act 
of  1872  is  in  force,  let  us  learn  whether  vacancies  in  the  electoral 
college  are  to  be  filled  by  a  popular  election.  He  referred  us  as  au 
thority  for  that  to  section  24,  page  104  of  the  covered  book. 

That  all  elections  to  beheld  in  this  State  to  fill  any  vacancies  shall  be  conducted 
and  managed,  and  returns  thereof  shall  be  made,  in  the  same  manner  as  is  provided 
for  general  elections. 

Now,  says  the  learned"  counsel,  that  covers  the  case  of  an  election 
to  fill  a  vacancy  in  the  electoral  college.  But  the  Constitution  of  the 
United  States  provides  that  Congress  may  determine  the  time  of 
choosing  the  electors  and  the  day  on  which  they  give  their  votes, 
"which  day  shall  be  the  same  throughout  the  United  States."  By 
an  act  of  Congress,  section  133  of  the  Revised  Statutes,  each  State  is 
authorized  to  provide  by  law  for  the  filling  of  any  vacancy  which 
may  occur  in  its  college  of  electors  when  such  college  meets  to  give 
its  electoral  vote.  Then  the  Louisiana  law  provides — 

If  any  one  or  more  of  the  electors  chosen  by  the  people  shall  fail  from  any  cause 
whatever  to  attend  at  theappointed  place  at  the  hour  of  four  p.  in.  of  the  fay  pre 
scribed  for  their  meeting,  it  shall  bo  the  duty  of  the  other  electors  immediately  to 
proceed  by  ballot  to  supply  such  vacancy  or  vancancios. 

Mr.  Commissioner  HUNTON.     But  is  not  that  the  law  of  1868  ? 

Mr.  STOUGHTON.     It  is  a  law  passed  in  1868,  an  old  law. 

Mr.  Commissioner  HUNTON.    Did  not  the  act  of  1872  repeal  that? 

Mr.  STOUGHTON.     O,  no ;  it  did  not  touch  it. 

Mr.  Commissioner  HUNTON.  This  was  also  in  the  act  of  1870,  the 
revised  statutes. 

Mr.  STOUGHTON.  It  does  not  touch  this  at  all.  It  would  be  an 
absurdity  to  hold  that  the  express  purpose  in  the  Constitution  carried 
out  by  Federal  legislation,  supplemented  by  State  legislation,  could 
be  defeated  by  giving  a  violent  construction  to  the  clause,  section  24, 
Avhen  it  has  abundance  to  feed  upon  in  the  sections  that  I  will  refer 
to  in  one  moment.  Look  at  the  vacancies  provided  for  in  section  24, 
to  be  found  in  sections  28,  30,  and  31. 


Mr.  Commissioner  HUNTON.  The  section  that  I  referred  to  as  re 
pealing  the  section  you  have  mentioned  will  be  found  in  section  71  of 
the  act  of  1872.  It  says  that  "all  other  acts  on  the  subject  of  elec 
tion  law  be,  and  the  same  are  hereby,  repealed." 

Mr.  STOUGHTON.  Yes,  that  means  all  other  acts  on  the  subject 
of  election  laws,  for  the  purpose  of  carrying  on  the  machinery  of  leg 
islation  within  the  State. 

Mr.  Commissioner  HOAR.  Mr.  Stoughtou,  I  do  not  wish  to  inter 
fere  with  the  course  of  your  argument,  but  I  will  venture  to  ask  you 
if  you  think  it  is  worth  while  to  spend  much  time  in  the  endeavor 
to  satisfy  the  Commission  that  section  24  refers  to  vacancies  to  bo 
filled  by  popular  election,  and  can  refer  to  nothing  else  I 

Mr.  STOUGHTON.  I  do  not  propose  to  spend  a  moment,  only  to 
refer  to  the  three  sections  which  are  referred  to  by  section  24,  and  which 
relate  to  vacancies  which  may  occur,  and  those  three  sections  you 
will  find  to  be  sections  28, 30,  and  31,  on  page  106  of  the  covered  book. 

In  the  revised  statutes  of  the  State  which  were  adopted  on  the 
14th  of  March,  1870,  will  be  found  the  act  of  1868,  originally  passed 
in  that  year,  containing  the  scheme  that  I  have  mentioned,  and  the 
scheme  under  wrhich  the  governor  was  to  count  the  electoral  vote,  as 
he  was  in  substance  all  other  votes.  That  act  of  1868  in  entering 
into  the  revised  statutes  was  very  much  divided  in  space  ;  the  sec 
tion  authorizing  the  district  judge  to  act  being  found  at  page  274, 
section  1386.  Upon  a  statement  made  by  a  commissioner  he  was  to 
make  a  duplicate,  transmit  one  to  the  judge  and  one  to  the  governor. 
If  the  governor  thought  the  statement  of  riot  and  tumult  was  of 
such  a  character  that  the  vote  ought  to  be  thrown  out,  he  directed 
the  district  judge  to  investigate  it.  During  the  investigation  the 
governor  was  prohibited  from  counting  the  vote  of  that  poll  or  par 
ish.  When  the  district  judge  decided,  he  certified  his  decision  to  the 
governor ;  the  governor  could  then  proceed  to  count,  and  he  did ;  but 
he  acted  always  in  subjection  to  the  mandate  of  the  statute,  which 
was  that  he  must  not  count  until  the  decision  of  the  district  court 
should  be  presented ;  that  is  he  must  not  count  that  parish.  That 
was  found  to  be  inefficient  au'd  the  act  of  1870  was  passed.  It  was 
passed  on  the  16th  of  March,  1870. 

A  question  is  raised  that  inasmuch  as  the  act  of  1870  incorporated  in 
the  revised  statutes  was  not  to  go  into  operation  until  the  1st  of  April, 
that  might  by  its  own  operation  repeal  or  stand  in  place  of  the  act 
adopted  on  the  16th  of  March  to  go  into  operation  immediately.  The 
answer  is  this  :  The  act  of  the  14th  of  March  repealed  all  prior 
acts  on  the  subject  of  these  election  laws  providing  for  elections 
within  the  State  and  the  mode  of  returning  votes,  but  repealed 
nothing  else.  It  did  not  repeal  those  clauses  of  the  act  which  had 
always  stood  in  substance  authorizing  the  election  of  electors,  only 
changing  the  mode  by  which  their  election  should  be  ascertained  after 
the  vote  of  the  State  had  been  cast.  Then  the  act  of  1872  was  passed, 
I  think  approved  on  the  20th  of  November,  1872,  and  that  provided 
for  the  present  returning  board,  adopting  substantially  the  prior  act 
of  1870,  adopting  it  in  all  respects  with  the  exception  of  the  composition 
of  the  returning  board. 

I  have  not  troubled  the  Commission  as  fully  as  I  had  marked  upon 
my  notes  with  the  different  sections  of  these  laws.  I  only  desire  to  say 
that  it  will  appear  by  looking  at  page  101  of  the  covered  book  that  the 
act  of  1872  provided  in  a  general  way  for  the  election  of  electors,  and 
the  returning  board  having  been  abolished  and  with  it  the  functions 
of  the  governor  for  the  purpose  of  counting  the  votes,  the  returning 
board,  provided  for  by  the  act  of  1872,  took  their  place,  the  act  of  1872 
declaring  in  terms  that  "five  persons  to  be  elected  by  the  senate  from  all 
political  parties,  shall  be  the  returning  officers  for  all  elections  of  the 
State,  a  majority  of  whom  shall  coustitue  a  quorum,  and  have  power 
to  make  the  returns  of  all  elections."  And  then  we  have  at  the  close 
of  the  act  that  it  "  shall  take  effect  from  and  after  its  passage,  and 
that  all  others  on  the  subject  of  election  laws  be,  and  the  same  are 
hereby,  reapealed."  Will  any  one  seriously  contend  that  the  opera 
tion  of  that  was  to  blot  out  from  the  statute-book  the  power  to  elect 
electors  when  their  election  was  provided  for  in  a  previous  part  of 
the  act  in  a  general  way  1  Will  any  one  pretend  that  section  24, 
which  has  ample  means  to  give  effect  to  it  in  other  sections  of  the 
act,  was  intended  to  declare  that  that  needful  authority  giveu  to  the 
college  of  electors  to  elect  on  the  day  they  assemble,  if  need  be,  was 
blotted  out,  and  that  the  State  must  lose  its  electoral  vote  because 
it  could  not  possibly  then  go  through  on  that  day  with  another  elec 
tion  ?  Such  objections  are  sometimes  made  somewhere ;  they  have 
never  been  made  here  before  ;  and  I  think  are  entitled  to  but  very 
little  force. 

It  has  been  said  that  this  board  to  be  appointed  by  the  senate 
should  consist  of  live  persons.  Originally  that  number  were  ap 
pointed.  Having  ceased  to  be  five  and  having  become  four  only  by 
the  resignation  of  one,  it  is  said  it  had  no  power  to  act  by  means  of 
these  four.  The  gentlemen  who  urged  the  objection  say  that  although 
it  had  no  power  to  act  there  being  but  four,  if  there  were  five  it  could 
act  by  three  alone,  "a  majority  of  whom  shall  constitute  a  quorum 
and  have  power  to  make  returns  of  all  elections."  Is  it  to  be  said 
that  with  the  power  expressly  conferred  upon  three  to  act  alone,  they 
could  only  act  alone  when  there  were  five  and  could  not  when  there 
were  four  ? 

Then  it  is  said  that  the  political  complexion  of  this  board  was  not 
of  the  right  color ;  there  should  have  been  a  democratic  infusion ; 
and  there  has  been  read  an  application  for  the  admission  of  a  demo- 


ELECTORAL  COMMISSION. 


97 


cratic  member.  I  suppose,  upon  that  theory,  if  after  the  election  of 
these  five,  two  being  democrats  and  three  republicans,  the  two  demo 
crats  (not  an  improbable  supposition)  should  have  changed  their 
faith,  the  board  would  cease  to  exist  by  that  operation !  This  clause 
is  directory  merely.  The  failure  to  observe  it  in  no  manner  inter 
feres  with  the  capacity  or  jurisdiction  of  the  board. 

I  suppose  that  it  is  entirely  proper  and  respectful  to  this  tribunal 
to  argue  the  leading  questions  involved  here  without  assailing  the 
reputation  of  any  one,  and  I  shall  follow  no  example  of  that  kind. 
I  have  heard  the  members  of  this  board  stigmatized  by  the  speech  of 
counsel  in  a  way  I  have  been  somewhat  sorry  to  hear.  Personally 
they  are  unknown  here,  personally  they  were  perhaps  unknown  to 
counsel  who  spoke  of  them.  They  are  to  be  respected  as  officials 
when  acting  as  such,  and  their  determination  is  to  be  respected  and 
followed. 

An  example  of  that  kind  was  set  in  a  very  celebrated  case  where 
the  question  arose,  in  1792,  as  to  whether  George  Clinton  or  Mr.  John 
Jay  was  elected  governor  of  the  State  of  New  York.  There,  as  the 
members  of  this  tribunal  may  remember,  there  was  a  clear  majority 
deposited  in  the  ballot-boxes  of  the  State  of  New  York  for  Mr.  Jay. 
The  sheriff  appointed  to  carry  the  votes  of  one  county,  giving  a  ma 
jority  of  some  four  hundred  for  Mr.  Jay,  was  an  officer  whose  term  of 
office  had  expired  for  a  few  days,  no  one  having  beeii  appointed  to 
succeed  him.  Mr.  King,  an  eminent  lawyer,  advised  that  ho  was  a 
proper  messenger  to  carry  the  votes,  being  sheriff  de  facto.  Aaron 
Burr  advised  that  he  was  not.  The  lineal  ancestors  of  the  democratic 
party  of  to-day  adopted  the  views  of  Aaron  Burr,  threw  out  the  county 
vote,  and  defeated  Mr.  Jay ;  and  inasmuch  as  the  canvassing  board 
had  final  and  absolute  power  to  determine  who  was  elected,  although 
an  effort  was  made  by  the  friends  of  Mr.  Jay  to  induce  him  to  rebel 
against  the  decision,  to  vex  the  State  of  New  York  for  years  perhaps 
with  the  judicial  question  of  who  was  elected,  he  declined  to  do  it, 
considering  that  this  tribunal  had  final  and  absolute  power  to  deter 
mine  the  question,  and  he  cheerfully  submitted  to  its  exercise ;  and 
moreover,  he  added  that  no  man,  no  set  of  men,  did  wrong  who  did 
right  under  the  law,  holding  to  the  precept  that  justice  is  the  law  ex 
ecuted,  and  not  that  wild  and  unlicensed  thing  which  we  sometimes 
call  justice,  but  it  is  the  law  executed,  whatever  the  law  maybe ;  and 
whoever  executes  the  law,  if  he  be  empowered  by  it  so  to  do,  is  enti 
tled  to  respect,  and  if  his  determination  is  final,  it  must  stand  unre- 
sisted.  Yon  can  no  more  invade  the  domain  of  State  jurisdiction  than 
you  can  direct  your  marshal  to  enter  my  house  and  take  my  property 
or  my  person.  And  he  who  invites  any  departure  from  that  respect 
for  loyalty  to  the  law  and  its  officers  is  not  performing  his  duty  as  a 
minister  of  justice,  and  he  who  denounces  a  judge  who  has  discharged 
his  duty  because  it  does  not  suit  the  prejudice  or  political  views  of 
another,  is  unworthy  to  speak  his  name  or  to  come  into  his  presence. 
Such  was  the  teaching  of  Mr.  Jay. 

I  have  heard  it  said  that  the  law  authorizing  what  the  learned 
counsel  calls  the  disfranchiseinent  of  these  voters  is  unconstitutional. 
Is  it?  Will  the  Commission  indulge  me  for  a  moment  while  I  refer 
to  the  doctrine  of  one  of  the  ablest,  one  of  the  purest,  and  one  of  the 
most  distinguished  of  men  belonging  to  the  democratic  party  at  this 
day  ?  I  find  this  doctrine  in  a  report  written  by  him — I  allude  to 
Senator  Stevenson,  of  Kentucky — founded  upon  authority  so  solid 
that  nothing  can  shake  the  views  he  presents.  If  it  be  unconstitu 
tional  to  pass  laws  for  the  purpose  of  protecting  men  from  violence 
and  outrageat  the  polls,  then  wo  have  been  under  a  delusion  for  many 
generations.  I  refer  for  this  purpose  to  reports  of  committees  of  the 
House  of  Representatives,  second  session,  Thirty-sixth  Congress,  vol 
ume  1,  1860-'61.  He  is  considering  the  question  of  the  effect  of  in 
timidation  and  violence  at  an  election  where  the  sitting  member  re 
ceived  10,068  votes  and  the  contestant  2,796 ;  and  I  allude  to  it  upon 
the  general  question  that  such  legislation  as  wo  have  in  Louisiana  is 
right  in  all  States  and  countries,  but  especially  right  in  that  State 
where  in  1868  a  lesson  was  taught  which  led  to  the  legislation  now 
before  you ;  a  lesson  written  in  blood,  as  was  said  by  the  learned 
Senator  [Mr.  Howe]  who  addressed  you  yesterday ;  a  lesson  taught 
us  by  the  death  by  violence,  as  reported  authentically  by  committees 
of  Congress,  of  two  thousand  people,  where  whole  parishes  were  dis 
franchised  on  one  side.  No  horror  has  been  expressed  at  outrages  like 
that.  Great  horror  is  expressed  for  fraud,  perjury ;  none  for  violence 
and  murder.  While  Louisiana  was  teaching  the  lesson  that  led  the 
Legislature  to  pass  this  act,  the  State  of  New  York  was  teaching  a 
lesson  in  its  chief  city  which  led  the  Congress  of  this  country  to  pass 
the  law  to  take  care  of  elections  for  members  of  Congress,  because 
in  1868  25,000  votes  were  manufactured — we  all  know  it;  it  is  a  matter 
of  authentic  history — in  the  city  of  New  York.  They  were  needed  to 
carry  the  State ;  they  carried  it  by  10,000  majority.  A  governor  was 
elected  by  them  ;  a  President  was  hoped  to  be.  Sitting  over  and 
managing  the  scene  was  an  individual  as  chairman  of  the  State  com 
mittee  whose  name  I  will  not  mention,  and  his  instruments  in  the  city 
of  New  York  who  actually  manufactured  the  votes  that  led  to  the 
legislation  we  all  know.  Such  legislation  in  cases  of  fraud  and  vio 
lence  and  murder  and  outrage  had  become  necessary 

In  the  report  of  Senator  Stevenson  it  was  said  "  that  illegal  vot 
ing  was  a  trifling  wrong — altogether  a  venial  offense — in  compar 
ison  with  the  overshadowing  outrage  of  intimidation  and  violence 
upon  which  the  burden  of  his  evidence  bears." 

Mr.  Commissioner  MORTON.    In  what  case  was  that  report  made  ? 


Mr.  STOUGHTON.  I  read  from  the  report  made  by  Mr.  Stevenson 
from  the  committee  on  the  Henry  Winter  Davis  election  case,  in  which 
report  he  cites  for  his  propositions  authorities  the  most  eminent  we 
have  in  common  law ;  and  he  says : 

Indeed,  there  is  no  conflict  of  authority,  nowhere  a  hint  of  an  opposite  doctrine, 
no  intimation  of  a  doubt  that  elections  must  be  free,  or  they  cease  to  have  any 
legal  validity  whatever.  *  *  *  The  very  word  election  implies  choice,  the  dec 
laration  of  the  preference,  the  wish,  of  those  who  have  the  right  to  make  a  choice, 
*  *  *  but  if  bribery  be  found  to  have  corrupted  the  well,  if  violence  prevented 
access  to  the  poll,  or  reasonable  fear  deterred  electors  from  a  determined  effort  to 
exercise  the  elective  franchise,  there  is  no  question  made  aa  to  the  number  of  votes 
affected  by  this  bribery,  violence,  or  intimidation. 

In  Louisiana  under  the  statute  it  is  said  that  10,000  votes  were 
thrown  out  by  the  returning  board,  and  my  learned  brother  yesterday 
said  he  appeared  for  those  men  here.  I  will  state  the  problem ;  I 
think  after  what  has  been  said  I  may  state  the  problem  that  was 
solved  in  Louisiana  by  those  who  managed  the  elections  there.  In, 
forty  parishes  there  was  6,097  republican  majority.  In  the  remaining 
seventeen  parishes  there  were  20,323  colored  voters  registered  and 
16,253  registered  white  voters.  What  do  you  suppose  the  problem  to 
be  solved  was  T  How  to  get  a  majority  to  overcome  the  6,000  republi 
can  majority  in  the  forty  parishes.  That  was  the  problem.  Out  of 
what  material  ?  Sixteen  thousand  white  votes  registered  to  20,000  col 
ored.  Was  the  problem  solved  ?  Yes.  How  f  Does  any  man  in  this 
court-room  believe  thatthe  problem  could  have  been  peacefully  solved 
by  12,000  majority  with  20,000  colored  voters  to  16,000  white  voters  f 
What  became  of  the  16,000  colored  voters  in  the  seventeen  parishes  ? 
I  appear  for  them,  in  imitation  of  my  learned  friend.  Were  they 
disfranchised  f  How  T 

Again,  five  of  these  parishes  had  13,244  registered  colored  voters, 
5,134  white.  The  problem  was  what  ?  To  get  a  democratic  majority 
of  4,495  by  means  of  5,000  white  voters  to  13,000  colored.  Was  it 
solved  I  Yes.  How  I  Let  the  record  of  the  five  parishes  answer. 
Solved  by  bloody  hands.  Talk  to  me  here  now  about  the  charge  of 
fraud,  disfranchisement  of  voters !  There  are  two  sides  to  this  ques 
tion,  and  if  you  sit  here  to  go  back  and  canvass  votes  you  sit  here  to 
administer  the  laws  of  Louisiana,  and  you  will  administer  them  by 
learning  who  have  been  disfranchised  and  what  was  the  lawful  vote 
of  that  State  in  harmony  with  her  laws,  and  not  in  harmony  with 
the  will  of  any  party. 

I  will  not  trouble  the  Commission  further  except  to  say,  as  to  the 
objection  made  to  some  of  the  electors  because  they  held  offices  under 
"the  State  government  when  elected  electors,  that  I  conceive  there  is 
here  no  disqualification  whatever.  The  constitutional  provision  in 
hibiting  the  holding  and  the  exercise  of  two  offices  refers  only  to  offices 
under  the  State  constitution  to  offices  mentioned  in  the  State  con 
stitution;  and  on  that  subject  I  desire  to  call  attention  to  a  case  to 
be  found  in  25  Louisiana  Annual  Reports,  page  138. 

I  now  leave  it  to  my  learned  brothers  to  make  such  observations 
upon  the  questions  presented  as  they  may  see  fit. 

Mr.  SHELLABARGER.  Mr.  President  and  gentlemen  of  the  Com 
mission,  I  know  how  weary  you  must  be,  and  it  is  with  extreme  re 
luctance  that  I  rise  to  address  you.  There  is  this  reflection  with 
which  wo  may  all  sustain  ourselves  in  this  protracted  trial,  that  we 
shall  probably  never  have  to  go  through  such  an  experience  again,  cer 
tainly  never  such  an  experience  again  so  far  as  it  relates  to  the  matter 
of  its  dignity  and  its  supreme  importance.  I  know,  judging  by  what 
I  have  already  experienced  and  observed  of  your  kindness,  that  you 
will  be  forbearing  in  indulging  me  in  my  part  of  this  discussion.  I 
shall  endeavor,  Mr.  President  and  gentlemen,  to  eschew  every  thing  in 
the  way  of  an  attempt  at  extended  elaboration,  to  try  to  state,  if  I 
can,  what  seem  to  me  to  be  the  points  on  which  this  case  now  as  it 
is  presented  must  turn. 

Of  course,  at  the  very  threshold  of  your  inquiry  now  is  the  ques 
tion,  what  are  the  statutes  which  have  been  enacted  by  Louisiana 
under  the  authority  of  the  Constitution  of  the  United  States  direct 
ing  the  appointment  of  electors,  what  are  the  statutes  which  were 
in  force  this  last  year  governing  that  matter  f  My  friend  who  has 
just  taken  his  seat,  has  gone  over  that  subject ;  it  has  been  gone  over 
by  others;  I  had  designed  to  discuss  it ;  but  I  think  I  will  omit  any 
extended  analysis  of  the  statutes.  I  will  venture  to  make  this  state 
ment,  gentlemen,  that  after  you  have  carefully  gone  over  the  statutes 
and  have  looked  at  them  in  all  their  parts,  you  will  be  unanimous. 
One  of  your  body  said  to  me  a  day  or  two  ago  that  yon  had  proven 
to  be  unanimous  on  one  subject,  and  that  was  that  this  was  a  great 
Commission  and  that  the  members  thereof  were  all  great  men. 

The  PRESIDENT.    There  has  been  no  vote  on  that  question. 

Mr.  SHELLABARGER.  Now  I  will  venture  the  prediction  that 
when  you  go  over  these  statutes  yon  will  be  unanimous  upon  another 
subject,  that  is,  that  the  act  of  1872  did  govern  in  1876  the  presiden 
tial  election.  You  will  be  unanimous  in  the  opinion  that  that  pro 
vision  of  the  revisory  act  of  1870  which  provided  for  the  canvassing 
of  the  returns  by  the  governor,  &c.,  was  repealed  and  was  not  in  force 
in  1876.  You  will  be  unanimous  upon  that  subject  for  the  very  plain 
reason  that  that  provision  which  made  the  governor  a  canvasser  for 
the  pnrposes  of  the  election  was  inconsistent  with  the  fifty-fourth 
section  of  the  session  acts  of  1870,  which  expressly  provided  a  different 
tribunal  for  all  elections,  including  the  electoral  elections. 

There  is  not  a  particle  of  difficulty  or  doubt  or  obscurity  upon 
either  one  of  the  propositions  that  I  have  thus  far  stated.  You  will 
also  I  think  be  unanimous  upon  the  proposition  that  the  election 


98 


ELECTORAL  COMMISSION. 


law  of  1872  applies  to  all  elections  and  f  iirninhes  the  machinery  or 
means  of  conducting  all  in  the  State,  including  the  electoral  college. 
You  will  be  so  for  several  quite  conclusive  reasons.  One  is  that  an 
act  undertaking  to  revise  and  provide  for  a  subject-matter  in  its 
totality,  such  a  revisory  act  is  always  considered  to  repeal  and  to 
take  the  place  of  the  acts  that  it  revises  in  so  far  as  it  purports  so  to  do. 
This  act  of  1872  purports  to  supply  the  machinery  for  every  popular 
election  in  the  State  by  its  scope.  But  a  more  conclusive  reason  per 
haps  than  even  that  is  that  its  express  terms  in  its  section  2,  in  so 
many  words,  declares  that  this  returning-board  shall  be  "the  return 
ing  board  for  all  elections  held  in  the  State,"  and  you  have  simply  to 
disregard  the  express  wording  of  the  act,  without  any  authority  for 
so  disregarding  it,  or  else  you  have  got  so  to  treat  this  law. 

I  say  I  have  no  apprehensions  in  regard  to  either  one  of  those  prop 
ositions.  Now  the  only  other  one  left  is  the  question  whether  the 
consequences  of  the  propositions  that  I  have  now  gone  over  load  me 
to  any  result  hurtful  to  the  position  that  we  take  in  this  case  in  re 
gard  to  this,  to  wit,  that  that  section  of  the  act  of  1870,  I  mean  the 
revisory  act  which  provides  for  filling  vacancies  in  the  electoral  col 
lege,  is  thereby  also  repealed.  That  is  the  predicament  that  we  are 
claimed  to  place  ourselves  in  when  we  say  that  the  act  of  1872  has 
superseded  and  swept  away  the  act  of  1870,  including  that  section  in 
regard  to  the  governor  canvassing  the  vote. 

Now,  sirs,  it  is  never  wise,  it  is  never  manly,  it  is  never  lawyerl ike, 
it  is  never  respectful  to  a  court  to  blink  or  dodge  any  question  in  a 
great  discussion  or  in  a  small  one ;  and  it  would  be  eminently  un 
worthy  that  we  should  undertake  to  avoid  every  possible  consequence 
of  the  positions  we  take  in  this  regard  ;  and  upon  that  subject  I  have 
not  the  slightest  difficulty,  though  in  that  I  may  be  deceived. 

My  question  at  the  present  moment  is  how  can  I  preserve  and  keep 
in  force  that  provision  of  the  act  of  1870  revising  that  of  1868,  which 
provides  for  tilling  the  electoral  college,  consistently  with  what  I  have 
just  been  saying?  I  answer  first  of  all  that  it  is  a  cardinal,  as  it  is  an 
exceedingly  benign,  canon  of  interpretation  that  a  law  is  never  re 
pealed  by  a  new  act  unless  either  expressly  so  done  or  unless  the 
repugnance  be  such  (and  now  I  am  using  the  very  words  of  the  Su 
preme  Court  of  the  United  States,  at  least  half  a  dozen  times  repeated 
in  the  most  solemn  judgments)  that  it  is  impossible  for  the  two  acts 
to  stand  together.  Those  words  are  so  familiar,  so  thoroughly  estab 
lished  as  law,  that  they  have  become  the  formula  of  statement  upon 
which  courts  seize  in  stating  the  rule  on  this  subject,  that  a,  succeed 
ing  act  shall  not,  where  the  prior  act  is  not  expressly  repealed,  repeal 
the  preceding  one  unless  the  two  cannot  stand  together. 

Another  rule  of  interpretation  equally  salutary,  equally  well  estab 
lished,  equally  familiar,  you  will  find  stated  in  the  case  of  Tho  United 
States  vs.  Kirby,  7  Wallace,  pages  482,  486,  and  487. 

I  beg  to  impress  this  part  of  my  statement  upon  the  memory  of 
every  one  of  you.  There  is  of  course  nothing  new  in  that  case,  as  you 
will  see  when  I  state  it.  It  is  only  in  cases  of  doubt  that  the  office 
of  interpretation  comes  in  at  all.  Where  the  language  of  an  act  is 
clear,  one  of  the  maxims,  one  of  Doinat's  rules,  one  of  the  American 
rules,  as  you  will  find  it  laid  down  in  Dwarris,  is  that  there  is  no 
place  for  interpretation  except  where  the  words  are  susceptible  of 
doubt.  Wherever,  then,  the  business  of  the  interpreter  comes  in  at 
all  and  has  play,  another  rule  for  his  guidance  is  this,  and  it  is  one 
that  I  want  to  impress  on  your  memories,  from  7  Wallace,  pages  482, 
487,  that  wherever  interpretation  would  lead  to  consequences  that 
are  either  absurd  or  hurtful  to  the  public  welfare,  that  interpretation 
Avill  never  be  tolerated  unless  its  escape  is  impossible. 

Then  keeping  that  in  your  mind,  go  with  me  the  next  step.  Is  it 
possible  to  escape  the  conclusion  that  under  the  legislation  of  Lou 
isiana,  Louisiana  was  disfranchised  ? 

I  invite  gentlemen  on  the  other  side  who  may  suppose  that  this  act 
is  repealed  by  which  a  vacancy  in  the  electoral  college  can  be  filled 
if  filled  at  all,  to  show  me  some  statute  that  forces  upon  you,  either 
by  direct  provision  or  by  any  fair  interpretation,  the  conclusion  that 
Louisiana  has  been  disfranchised  in  these  processes  of  legislation. 
There  is  nothing,  absolutely  nothing  to  repeal  that  section  which 
provides  for  the  filling  of  vacancies  under  the  law  of  1868  and  the 
law  of  1870,  except  the  repealing  clause  of  1872,  which  is  in  these 
words : 

That  this  act  shall  take  effect  from  and  after  its  passage,  and  that  all  others  on 
the  subject  of  election  laws  be,  and  the  same  are  hereby,  repealed. 

Is  it  possible  for  the  act  of  1870,  providing  for  filling  vacancies,  to 
stand  consistently  with  that  repealing  clause  ?  If  it  is,  you  are  bound 
by  your  oaths  and  by  all  the  rules  of  interpretation  to  let  it  stand  ; 
first,  because  of  the  rule  I  have  stated  that  you  shall  not  make  it  work 
a  repeal  by  implication  if  you  can  help  it ;  second,  because  if  you  do 
make  it  work  a  repeal  you  work  a  disfranchisement  of  the  State.  The 
provision  for  filling  a  vacancy  in  the  electoral  college  is  not  an  elec 
tion  law  at  all  in  the  sense  that  that  language  is  used  there.  Takino- 
that  section  by  itself  it  is  not  an  election  law  at  all.  I  mean  in  the 
popular  and  legal  sense  of  that  repealing  clause.  It  is  filling  a 
vacancy  where  there  was  a  failure,  the  gentlemen  say,  to  elect ;  we 
say  where  there  was  a  vacancy  under  the  provisions  of  these  acts  of 
Congress  on  the  subject  of  vacancy  and  this  legislation  of  the  State. 

Mr.  President  and  gentlemen,  having  said  that  much,  you  are  in  pos 
session,  without  any  elaboration  at  all  of  the  discussion,  of  my  views  in 
regard  to  what  you  will  find  out  for  yourselves  when  you  go  to  your 


chamber,  and  I  take  the  next  step  in  this  discussion.  The  law  of  1872 
is  in  force ;  it  governed  this  election ;  and  the  provision  for  filling  the 
vacancy  is  one  that  was  resorted  to  and  was  in  force. 

I  ought  to  have  added  by  way  of  abundant  caution  in  the  connec 
tion  in  which  I  was  a  moment  ago,  another  rule  of  interpretation 
which  is  exceedingly  valuable  here,  and  that  is  where  a  statute  has 
received  what  your  Supremo  Court  calls  a  practical  construction, 
and  has  been  executed  according  to  that  practical  construction  in 
every  case  of  doubt,  that  is  exceedingly  valuable.  The  Supreme 
Court  of  the  United  States,  in  a  decision  that  I  will  hand  up — I  think 
it  is  in  21  How.,  66 — says  that  in  a  case  of  doubt  the  practical  con 
struction  that  has  been  given  to  a  law  is  conclusive.  This  law  for 
filling  vacancies  has  been  practically  construed  as  applicable  to  the 
presidential  election,  because  all  the  elections  that  hav  been  held  since 
it  was  upon  the  statute-book  have  been  conducted  under  it,  there  be 
ing  in  fact  two. 

I  take  my  next  proposition.  I  have  not  deemed  it  necessary  in 
marking  out  my  part  of  the  work  to  take  these  propositions  up  in  any 
particular  order.  I  therefore  come  at  once  to  the  question  as  to  what 
opportunity  there  is  left  for  doubt,  dispute,  or  debate  in  regard  to 
the  question  of  the  power  of  Governor  Kellogg  to  certify  this  elec 
tion.  I  want  to  add  to  what  was  said  by  Mr.  Stoughton,  whose  ar 
gument  has  just  been  concluded,  in  the  way  of  refreshing  your  mem 
ories,  the  words  of  the  Supreme  Court  of  the  United  States  upon  that 
point  that  are  so  exactly  apposite,  so  completely  conclusive  here,  as 
it  seems  to  me,  as  to  shut  up  forever  to  all  intents  and  purposes  all 
discussion  in  regard  to  the  question  which  was  the  rightful  govern 
ment  in  Louisiana,  and  which  was  entitled  to  make  the  certificate. 

Mr.  Commissioner  PAYNE.  Mr.  Shellabarger,  before  you  proceed 
to  that  point  I  should  like  to  ask  you  if  there  are  any  of' the  sections 
of  the  law  of  1868,  on  which  you  have  been  just  commenting,  that 
you  claim  are  not  repealed  by  the  repealing  clause  of  the  law  of  1872, 
except  the  one  you  referred  to  about  filling  vacancies? 

Mr.  SHELLABARGER.  I  have  not  gone  over  the  law  of  1868  nor 
even  the  law  of  1870,  as  it  revises  that  of  1868,  in  all  its  parts.  1 
therefore  cannot  answer  that  question  categorically  for  I  do  not  know, 
not  having  any  concern  about  any  other  parts  of  the  law  except  those 
that  were  involved  in  this  case.  I  answer  generally  that  I  under 
stand  that  an  examination  will  result  in  finding  that  all  the  provis 
ions  of  1868  are  superseded  without  exception  by  the  revision  of 
1870.  Then  if  your  question  means  to  ask  me  what  part  of  the  legis 
lation  of  1870  is  left  alive,  I  answer  that  my  analysis  has  not  been 
such  as  to  enable  me  to  answer  except  as  to  the  case  in  hand,  and  that 
as  to  that  the  section  relating  to  vacancies  has  been  preserved  first 
by  the  fact  that  it  is  not  within  the  repealing  clause  of  1872,  it  not 
being  a  matter  as  to  holding  an  election ;  and  second,  it  has  not  been 
repealed  because  to  do  so  would  disfranchise  a  State ;  third,  it  has 
not  been  repealed  because  it  is  possible  to  stand.  That  is  my  whole 
position  on  that  subject. 

Mr.  Commissioner  HOAR.  The  law  of  1870  is  an  entire  revision  of 
the  whole  statute  law  of  the  State  on  this  subject.  It  contains  pro 
vision  as  to  the  presidential  electors  meeting,  how  they  shall  certify 
their  acts,  and  a  like  class  of  provisions. 

Mr.  EVARTS.  I  rise  to  ask  Mr.  Commissioner  PAYNE  whether,  in 
his  inquiry  of  the  law  of  1868,  he  referred  to  the  general  election  law 
of  1868,  or  the  electoral  election  law  of  1868,  which  are  two  independ 
ent  acts? 

Mr.  Commissioner  PAYNE.    May  they  not  be  "  election  laws  ?  " 

Mr.  EVARTS.  They  are  two  independent  acts,  found  in  the  session 
laws  of  the  same  year. 

Mr.  SHELLABARGER.  Now,  Mr.  President,  I  take  the  language  of 
the  Supreme  Court  of  the  United  States  from  a  case  that  has  been 
often  referred  to,  Luther  vs.  Borden,  and  I  apply  it  here.  It  is  in  these 
words : 

It  rests  with  Congress  to  decide  what  government  is  the  established  one  in  a 
State ;  *  *  *  aiid  when  the  Senators — 

And  it  is  especially  to  this  that  I  invite  your  attention— 
and  when  the  Senators  and  Representatives  from  a  State  are  admitted  into  the 
councils  of  the  Union,  the  authority  of  the  government  under  which  they  are  ap 
pointed,  as  well  as  its  republican  character — 

Note,  for  here  are  two  objections,  first,  that  the  State  has  not  a  re 
publican  character  ;  second,  that  it  is  not  a  State,  or  that  the  Kellogg 
government  was  not  the  government.  The  Supreme  Court  replies  to 
that  that  when  members  are  admitted  to  the  councils  of  the  Union — 

the  authority  of  the  government  under  which  they  are  appointed,  as  well  as  its 
republican  character,  is  recognized  by  the  proper  constitutional  authority,  and  its 
decision  is  binding  on  every  other  department  of  the  Government  and  cannot  be 
questioned  in  a  judicial  tribunal. 

I  said,  gentlemen,  that  that  language  was  absolutely  conclusive  of 
this  whole  question,  and  it  is,  unless  the  suggestion  made  by  Judge 
Trumbull  to  my  friend  who  preceded  me  is  an  answer.  His  suggestion 
was,  "  Well,  that  says  it  is  for  Congress  to  determine,  and  here  we  are 
in  Congress  for  the  purpose  of  having  you  determine  the  thing  the 
other  way."  Now  plainly  and  most  manifestly  the  suggestion  is 
founded  in  error,  first,  because  if  you  were  Congress,  with  all  the 
sovereign  powers  of  Congress  and  could  make  a  law,  still  you  could 
not  make  your  act  ex  post  facto  or  retroactive.  If  that  thing  was  in 
November,  1876,  a  State  by  the  recognition  of  the  two  Houses,  by 
tlie  action  of  the  Executive  under  the  act  of  1795,  by  the  fact  of  it's 


ELECTORAL  COMMISSION. 


99 


passing  laws  and  taking  the  government  and  exercising  it,  by  all 
the  facts  that  make  and  create  a  State  of  this  Union  de  facto  and  de 
jure,  if  that  were  so  of  Louisiana  as  it  was  in  November,  1876,  then 
will  my  friend  have  the  courage,  not  to  say  the  temerity,  to  tell  this 
Commission  that  even  Congress  can  take  that  status  away  and  rob  the 
State  by  a  post  hac  action  of  its  capacity  to  elect,  as  it  was  held  on  the 
day  when  the  election  was  made  ? 

f  come  next  to  the  question  of  the  ineligibility  that  is  alleged  to  be 
wrought  as  to  certain  of  these  electors  by  the  fact  that  certain  of 
them  held  State  offices.  Let  me  take  now  and  let  me  make  illustri 
ous,  if  I  can,  my  speech,  by  a  quotation.  I  know  it  has  been  quoted 
a  hundred  times,  so  that  it  has  become  familiar  to  you  all ;  but  the 
oftener  the  better,  because,  first,  of  the  intrinsic  excellence  of  the 
statement  itself ;  second,  because  of  the  time  whence  it  comes  to  us, 
away  back  in  the  very  morning  of  our  life  as  a  nation  ;  and,  third, 
and  perhaps  especially,  because  it  comes  from  one  of  the  most  illus 
trious  of  the  framers  of  the  Constitution.  I  mean  Charles  Piuckney. 
It  is  a  speech  that  he  made  on  the  bill  that  was  pending  in  Congress 
in  1800,  proposing  to  make  a  commission  something  like  this.  I  am 
now  reading  from  Mr.  Pinckney  for  the  purpose  of  showing  to  you 
that  it  was  not  the  design  of  the  Constitution  to  permit  the  States  by 
any  method  to  add  to  or  subtract  from  the  qualifications  of  the  presi 
dential  electors.  I  have  now  reached  the  point  that  it  is  said  dis 
qualifies  Kellogg  and  one  or  two  other  men  because  they  hold  State 
offices,  and  I  wish  to  make  use  of  what  Mr.  Pinckucy  here  states  upon 
that  point.  But  in  order  that  I  may  use  what  he  states  in  other  con 
nections,  I  will  read  as  well  what  he  stated  on  other  points  as  upon 
that  one.  He  says : 

Knowing  that  it  was  the  intention  of  the  Constitution  to  make  the  President  com 
pletely  independent  of  the  Federal  Legislature,  I  well  remember  it  was  the  object, 
as  it  is  at  present  not  only  the  spirit  but  the  letter  of  that  instrument,  to  give  to 
Congress  no  interference  in  or  control  over  the  election  of  President.  It  is  made 
their  duty  to  count  over  the  votes  in  a  convention  of  both  Houses,  and  for  the  Pres 
ident  of  the  Senate  to  declare  who  has  the  majority  of  the  votes  of  the  electors  so 
transmitted. 

It  never  was  intended,  nor  could  it  have  been  safe,  in  the  Constitution,  to  have 
given  to  Congress  thus  assembled  in  convention  the  right  to  object  to  any  vote,  or 
even  to  question  whether  they  were  constitutionally  or  properly  given. 

This  right  of  determining  on  the  manner  in  whicfi  the  electors  shall  vote  ;  the  In 
quiry  into  the  qualifications,  and  the  guards  that  are  necessary  to  prevent  dis 
qualified  or  improper  men  voting,  and  to  iiisure  the  votes  being  legally  given,  rests 
and  is  exclusively  vested  in  the  Stato  Legislatures. 

When  I  come  to  read  this,  it  reminds  me  that  my  friend  who  sits 
before  me  [Mr.  Trumbull]  drew  his  wisdom  from  this  speech,  for  it  is 
almost  hate  vcrba  the  language  of  his  report  made  in  1873. 

If  it  is  necessary  to  have  guards  against  improper  elections  of  electors  and  to 
institute  tribunals  to  inquire  into  their  qualifications,  with  the  State  Legisla 
tures — 

That  is  just  what  you  said  in  1873 ;  it  is  with  the  State  Legisla 
tures — 

and  with  them  alone  rests  the  power  to  institute  them,  and  they  must  exercise 
it.  To  give  to  Congress,  even  when  assembled  in  convention,  a  right  to  reject  or 
admit  the  votes  of  States  would  have  been  so  gross  and  dangerous  an  absurdity  as 
the  1'ramers  of  the  Constitution  never  could  have  been  guilty  of.  How  could  they 
expect  that  in  deciding  on  the  election  of  a  President,  particularly  where  such 
election  was  strongly  contested,  that  party  spirit  would  not  prevail  and  govern 
every  decision  t  Did  they  not  know  how  easy  it  was  to  raise  objections — 

Very  easy,  as  we  have  found  out  to-day,  for  there  are  whole  piles, 
cart-loads  of  them  here — 

how  easy  it  was  to  raise  objections  against  the  votes  6f  particular  electors,  and 
that  in  determining  upon  those  it  was  more  than  probable  the  members  would  recol 
lect  their  sides,  their  favorite  candidate,  and  sometimes  their  own  interests  ? 

These  being  the  avowed  reasons  for  introducing  this  bill,  I  answer  them  by  ob 
serving  that  the  Constitution  having  directed  that  electors  shall  bo  appointed  in  the 
manner  the  Legislature  of  each  State  shall  direct,  it  is  to  be  taken  as  granted  that 
the  State  Legislatures  will  perform  their  duties  and  make  such  directions  as  only 
qualified  men  shall  be  returned  as  electors.  The  disqualifications  against  any  citi 
zen  being  an  elector  are  very  few — 

Now  note — 

The  disqualifications  against  any  citizen  being  an  elector  are  very  few  indeed ; 
they  are  two:  the  first,  that  no  officer  of  the  United  States  shall  beau  elector;  and 
the  other,  that  no  member  of  Congress  shall. 

Having  read  that,  we  have  the  indication  of  the  point  I  am  now 
upon,  that  it  was  for  very  wise  reasons  that  the  disqualifications 
imposed  upon  the  electors  were  very  few;  also,  we  have  it  indicated, 
what  is  plain  of  course  upon  the  face  of  the  instrument,  that  the 
Government  of  the  United  States,  the  Constitution  itself,  was  the 
only  authority  upon  that  subject  of  eligibility,  and  that  the  States  can 
exercise  none  whatever. 

I  now  pass  to  another  authority.  Let  me  refer  you  to  the  language 
of  Mr.  Cooley,  in  his  Constitutional  Limitations,  page  64 : 

Another  rule  of  construction  is  that  when  the  Constitution  defines  the  circum 
stances  under  which  a  right  may  be  exercised — 

The  electoral  right  here — 

or  a  penalty  imposed,  the  specification  is  an  implied  prohibition  against  legislative 
interference  to  add  to  the  condition  or  to  extend  the  penalty  to  other  cases.  On 
this  ground  it  has  been  held  by  the  supreme  court  of  Maryland  (4  Maryland,  189) 
that  where  the  Constitution  defined  the  qualifications  of  an  officer  it  was  not  in  the 
power  of  the  Legislature  to  change  or  superadd  to  them  unless  the  power  to  do  so 
was  expressly  or  by  necessary  implication  conferred  by  the  Constitution. 

So  that  both  by  the  most  obvious  reason  of  the  case  and  by  the 
authority  of  Mr.  Pinckney,  one  of  the  framers  of  the  Constitution, 
stating  why  it  was  that  so  few  disqualifications  were  imposed  upon 
the  holding  of  the  electoral  office  and  also  by  the  decisions  of  the 


courts  and  by  every  possible  view  that  applies  to  the  case,  it  is  true 
that  the  holding  of  office  under  the  State  government  neither  is  nor 
can  be  made  to  be  a  disqualification  to  hold  the  electoral  office.  I 
add  more,  that  the  Congress  itself  cannot  add  to  or  subtract  from 
the  qualifications  of  an  elector.  There  they  stand,  broad,  wide,  and 
unlimited,  except,  as  Mr.  Pinckney  states,  by  two  solitary  disqualifi 
cations. 

Mr.  Commissioner  THURMAN.  Would  it  be  unconstitutional  for 
a  State  to  require  its  elector  to  be  a  citizen  of  the  State  ? 

Mr.  SHELLABARGER.  A  citizen  of  the  State  in  which  he  resides  ? 
I  answer  that  in  my  judgment  it  would  be.  I  see  not  why  it  is  that 
you  can  on  any  account  add  to  or  subtract  from  the  provisions  that 
the  Constitution  has  made  upon  the  subject  of  qualification. 

Mr.  Commissioner  THURMAN.  Could  then  a  State  select  an  alien 
for  an  elector  ? 

Mr.  SHELLABARGER.  If  the  State  may  not  choose  an  alien  for 
an  elector,  it  must  be  because  the  constitution  has  prohibited  it.  The 
Constitution  of  the  United  States  has  not  prohibited  it.  It  has,  as 
Mr.  Pinckney  has  expressed  it,  made  but  two  prohibitions.  It  was 
long  doubted  whether  the  States  could  appoint  their  electors  by  an 
act  of  the  Legislature,  but  long  ago  that  was  settled  that  there  was 
no  limitation,  no  fettering  of  the  power  of  the  State  in  regard  to  the 
methods  of  the  appointment.  That  there  was  a  provision  iuregard  to 
what  the  qualification  of  the  electors  should  be,  I  think  is  express 
and  plain  upon  the  veryface  of  the  Constitution,  and  two  disqualifi 
cations  being  named  this  excludes  the  addition  of  others.  Whether 
I  am  right  or  not  upon  that  is  not  very  material  for  the  purposes  of 
this  discussion,  because  the  question  put  to  me  by  the  Senator  does  not 
arise  in  this  case.  No  such  extreme  case  has  occurred  here,  and  it  is 
an  abstract  proposition. 

The  next  question  I  propose  to  consider  is  whether  the  returning 
board  as  it  was  organized  was  a  good  returning  board,  I  mean  good 
as  to  numbers.  It  is  said  that  because  it  had  but  four  in  ft,  when 
there  ought  to  have  been  five,  that  spoils  the  board  and  renders  it  in 
capable  of  action.  Now  without  any  elaboration  permit  me  to  state 
the  authorities  and  the  propositions  upon  which  I  rely  in  that  regard. 
In  the  case  of  Gildersleve  vs.  The  Board  of  Education,  17  Abbott's 
Practice  Reports,  201,  you  will  find  a  case  where  the  court  held  that 
a  board  composed  of  ten  persons  with  power  to  fill  vacancies  could 
by  a  vote  of  five  of  its  members  remove  a  superintendent  of  schools 
at  a  time  when  there  was  an  unfilled  vacancy  in  the  board,  because 
they  could  act  by  a  majority,  and  five  was  a  majority  of  nine. 

I  have  selected  this  case  simply  because  although  a  decision  of  a 
common  pleas  judge,  the  facts  happened  to  be  so  exceedingly  like  those 
of  the  case  we  are  dealing  with.  It  was  a  case  where  the  num 
ber  was  fixed  by  statute  at  ten ;  it  was  a  case  where  there  was  a  va 
cancy  at  the  time  of  the  action ;  it  was  a  case  whore  there  was  a  power 
to  fill  the  vacancy  in  the  board  ;  it  was  a  case  where  they  failed  to 
fill  the  vacancy  ;  and  it  was  a  case  where  had  they  filled  the  vacancy 
the  vote  by  which  the  act  was  done,  to  wit,  five,  would  not  have  ac 
complished  the  removal.  There  the  court  was  brought  square  up  to 
the  very  question  whether  that  board  thus  constituted  could  act.  It 
is  the  exact  case  with  which  we  deal.  There  the  court  says  that  iu 
private  affairs  all  must  meet  and  consider,  and  then  proceeds : 

But  where  the  powers  to  be  exercised  are  a  continuous  trust  or  duty  confided  to 
designated  persons  the  discharge  of  the  public  trust  is  not  to  be  interrupted  or  fail 
through  the  death  or  absence  or  inability  of  any  of  the  persons  to  whom  the  exer 
cise  of  it  is  intrusted ;  provided,  there  is  a  sufficient  number  to  confer  together  to 
deliberate  and  in  view  of  the  possibility  of  the  division  of  opinion  to  decide  upon 
what  course  is  to  be  adopted. 

I  said  that  this  was  the  decision  of  a  common  pleas  judge. 

Mr.  Commissioner  STRONG.    By  whom  was  the  opinion  delivered  ? 

Mr.  SHELLABARGER.  By  Judge  Daly ;  but  I  want  now  to  say 
for  Judge  Daly's  opinion  and  for  his  authority  that  he  has  quoted 
what  I  have  read  from  the  very  highest  sources  of  the  law,  and  I  give 
you  the  cases  from  whence  he  derived  it.  You  will  find  it  first  in 
the  case  of  Blacket  vs.  Blizard,  decided  in  1829,  found  in  9  Barn  well 
and  Creswell,  pages  856  to  859.  You  will  find  the  same  principle  in 
Cooke  vs.  Loveland,  2  Bosauquet  and  Puller,  31 ;  also  in  Rex  vs.  Bees- 
ton  ,  3  Term  Reports,  592 ;  also  in  Grindley  vs.  Baker,  1  Bosanquet 
and  Puller,  229.  You  will  find  the  same  thing  in  its  legal  effect  laid 
down  in  Bouvier'sLaw  Dictionary  under  the  title  "Quorum."  Precisely 
the  same  thing  is  decided  iu  the  great  case  of  The  People  vs.  Cooko, 
4  Selden,  67.  That  was  a  case  where  the  court  decided  that  a  va 
cancy  or  an  absence  in  the  election  board  did  not  vitiate  the  poll. 
That  is  one  of  the  leading  American  cases.  It  is  quoted  everywhere 
ever  since  it  was  decided  on  a  great  many  different  points,  and,  there 
fore,  it  is  so  long  that  I  will  ask  you  to  make  a  note  of  the  place 
where  you  will  find  the  fact  especially  stated  as  to  how  that  board 
was  organized  in  the  dissenting  opinion  of  Judge  Taggart,  pages  95 
and  96.  There  you  will  find  that  the  board  held  an  election  when 
but  two  out  of  the  three  were  present  a  part  of  the  time  and  other 
irregularities  appeared  in  the  case. 

You  will  find  the  same  thing  decided  in  The  State  vs.  Stumpf,  21 
Wisconsin,  579,  where  two  out  of  three  judges  were  held  to  be  com 
petent  to  hold  an  election.  The  same  principle  you  will  find  decided 
in  The  State  of  Louisiana,  4  Louisiana  Annual  Reports,  419,  decided  in 
1849,  where  it  was  held  that  when  the  power  of  amotiou  was  conferred 
upon  two- thirds  of  the  body,  then  two-thirds  of  a  quorum  were  capa 
ble  of  acting.  So  also  in  a  case  in  10  Wendell,  658,  and  in  16  Iowa, 
284,  where  the  same  thing  is  laid  down. 


100 


ELECTORAL  COMMISSION. 


The  result  of  all  these  cases  is  that  wherever  a  body  has  a  public 
or  political  duty  to  discharge,  as  distinguished  from  private  arbitra 
tion  or  trial  of  that  sort,  there  because  it  is  a  public  tribunal  ex 
ercising  as  in  the  case  at  bar,  political  functions  with  the  presence  of  a 
quorum,  a  majority  of  a  quorum  is  competent  to  act  and  the  public 
business  will  not  be  suffered  to  be  arrested  or  put  in  peril  by  reason 
of  the  death  or  the  absence  of  any  member.  The  law  as  laid  down 
in  the  case  of  Gildersleve  is  the  law  upon  this  subject. 

Mr.  Commissioner  ABBOTT.  Permit  me  to  ask  a  question.  Have 
you  examined  those  cases  so  as  to  say  whether  the  board  was  full, 
that  is,  that  the  number  required  by  law  had  absolutely  been  appointed 
and  were  in  existence,  or  whether  there  was  a  mere  absence  ? 

Mr.  SHELLABARGER.  I  answer  that,  and  it  is  a  very  pertinent 
inquiry,  they  are  not  all  so  directly  on  all-fours  with  they  case  at  bar 
as  the  case  I  first  read,  because  in  most  of  them,  perhaps  in  all,  for 
aught  I  know,  the  absence  was  not  by  reason  of  death  so  as  to  create 
an  actual  vacancy;  and  the  reasoning  of  the  court  is  entirely  in 
support  of  our  position,  to  wit,  that  the  public  interests  will  not  be 
imperiled  nor  stopped  by  absence,  whether  that  absence  be  caused 
by  death  or  what  not.  They  employ  that  very  language,  so  as  to 
show  that  it  makes  no  difference  what  the  cause  of  the  absence  is, 
•whether  it  is  death  or  what ;  it  being  a  public  function,  a  public  tri 
bunal  disposing  of  public  and  political  affairs,  it  can  act  by  a  major 
ity  when  a  majority  is  present.  That  is  the  law  of  this  body,  and  it 
makes  no  difference,  as  yoTi  will  see  by  reading  the  cases,  whether 
the  absence  is  caused  by  death  or  what. 

Mr.  Commissioner  ABBOTT.  I  put  the  question,  sir,  because  there 
are  very  respectable  cases  I  am  sure  where  the  courts  have  holden, 
even  with  the  provision  of  the  statute  that  a  majority  may  act,  that 
if  the  board  is  not  full  the  action  of  a  majority  will  not  bind,  because 
that  is  not  the  board  provided  by  law. 

Mr.  SHELLABARGER.  I  am  very  much  obliged  for  the  sug 
gestion,  and  every  one  that  I  can  answer  I  will,  and  if  I  cannot  I  will 
say  so. 

Mr.  Commissioner  THURMAN.  If  it  would  not  interrupt  you  I 
should  like  to  ask  you  a  question.  According  to  my  recollection  all 
the  authorities  you  have  read  are  very  good  law ;  but  do  they  touch 
the  case  whore  the  board  is  required  to  be  constituted  of  different 
elements,  where  the  statute  creating  it  requires  it  to  be  constituted 
of  different  elements,  and  requires  certain  persons  to  constitute  it  in 
practice,  and  one  element  excludes  the  other  element  f 

Mr.  SHELLABARGER.  That  question  I  will  discuss  under  another 
head ;  but  my  answer  now  to. that  suggestion  is  that  that  provision 
is  in  its  very  nature  and  by  the  necessities  of  the  case  directory,  and 
it  does  not  go  to  the  essential  power  of  the  body.  You  must  know 
that  from  the  very  common  sense  of  the  case,  because  how  are  you  to 
test  whether  a  man  is  a  democrat  or  a  republican  ?  How  are  you  to  iind 
out  whether  his  politics  change  yesterday,  to-day,  or  to-morrow  ?  It  is 
most  obvious,  I  submit,  to  your  long  experience  and  excellent  learn 
ing,  it  must  be  so,  that  that  is  a  directory  provision  to  be  abided  by  and 
performed  in  good  faith,  and  if  not  performed  in  good  faith  and  if 
there  were  no  reason  for  its  being  omitted  in  this  case,  then  it  is  an 
act  reprehensible  and  to  bo  condemned ;  but  it  does  not  go  to  the  ju 
risdiction  of  the  body.  I  will  state  here,  Mr.  President  and  gentle 
men,  what  I  happen  to  know.  Gentlemen  have  been  talking  about 
the  testimony  they  propose  to  give.  Now  let  me  state  the  testimony 
that  I  propose  to  give  if  you  open  this  door.  I  shall  prove,  and  say 
so  on  my  professional  honor,  that  if  these  gentlemen— and  they  seem 
to  me  to  be  gentlemen  of  the  very  highest  character — have  not  fal 
sified  to  me,  I  will  prove,  if  you  compel  us  to  go  into  this  door,  that 
we  tendered  again  and  again  the  filling  of  that  vacancy  and  it  was 
refused  by  every  man,  and  there  were  several  to  whom  the  application 
was  made,  because  they  did  not  want  to  be  mixed  up  with  the  troub 
lous  affairs  of  Louisiana  and  the  long  labor,  or  some  such  reason  as 
that.  I  only  say  that,  in  passing,  to  repudidate  and  repel  these  inces 
sant  inundations  that  we  have  in  the  way  of  denunciation,  of  invec 
tive,  and  of  declamation  about  fraud.  I  undertake  to  meet  it  just 
where  I  have ;  and  if  I  am  deceived  in  that,  it  is  not  my  fault,  but  it 
is  the  fault  of  the  gentleman  who  stated  it  to  me,  he  being  one  of  the 
leading  members,  not  the  president,  of  the  board. 

I  now  come  to  the  next  point  that  I  have  marked  in  my  brief,  and 
that  is  a  proposition  that  my  friend  Senator  Carpenter  seems  to  at 
tach  some  consequence  to,  though  I  do  not  know  that  anybody  else 
on  his  side  has  especially  discussed  it ;  and  it  is  the  proposition  that 
these  functions  of  the  returning  board  of  Louisiana  are  judicial  in 
their  nature,  that  they  could  not  uudorthe  constitution  of  Louisiana  be 
conferred,  except  on  a  court,and  that  hence  this  law  goes  by  the  board 
for  that  reason.  Let  me  in  the  first  place  give  your  honors  a  reference 
to  the  case  of  the  State  vs.  Huf  ty,  11  Louisiana  Annual  Reports,  304,  de 
cided  in  1856.  I  give  you  the  date  of  the  decision  in  order  that  I  may 
get  you  away  back  of  the  unhealthy  influences  that  are  alleged  to  have 
pervaded  and  affected  these  courts  since  the  rebellion.  In  1856,  when 
the  State  constitution  had  a  provision,  as  every  constitution  has, 
divorcing  the  executive,  the  legislative,  and  the  judicial  parts  of  the 
government,  keeping  them  separate ;  away  back  in  1856,  under  a  con 
stitution  that  prohibited  the  exercise  of  judicial  powers  by  anything 
except  the  courts  of  Louisiana,  this  question  arose  in  the  case  of  The 
State  vs.  Hufty.  There  an  address  was  made— that  was  what  it  was 
called— an  address  by  the  Legislature  to  remove  Mr.  Hufty  from  the 
ofbce  of  sheriff  to  which  ho  was  elected.  One  of  the  grounds  for  re 


moval  was  the  very  ground  with  which  we  deal  to-day,  to  wit,  that 
his  election  had  been  carried  by  violence,  intimidation,  and  fraud. 
It  was  alleged  that  there  were  organized  bands  of  men  that  broke  up 
the  ballot-box,  disturbed  the  election,  and  prevented  its  result  being 
fair.  The  counsel  in  that  case  made  the  point  directly  that  that  was 
a  judicial  question,  that  it  could  not  be  tried  in  the  Legislature,  and 
that  the  law  providing  for  such  address  was  unconstitutional.  The 
court  decided  this  very  question  that  it  wasnota  judicial  but  was  an 
administrative  process — that  was  the  word  of  the  court — and  was 
entirely  competent  to  be  committed  to  the  Legislature,  and  that  it 
was  therefore  constitutional. 

Then  I  give  you  three  other  cases :  the  case  of  Collins  vs.  Knoblock, 
25  Louisiana  Annual  Reports,  263;  The  State  vs.  Lynch,  the  same  book, 
267  ;  also  13  Louisiana  Annual  Reports,  90,  in  every  one  of  which  the 
question  of  the  validity  of  lawsgiyingthis  power  to  thoreturningboard 
was  involved,  although  perhaps  in  none  of  them,  certainly  not  in  all  of 
them,  was  the  question  directly  and  expressly  made ;  but  it  was  in 
volved  in  each  one  of  these  cases,  the  one  in  13  Annual  Reports  being 
under  a  former  constitution,  because  that  was  about  1858,  the  others 
under  the  present  constitution  and  under  the  law  of  1870,  all  holding 
and  agreeing  that  this  is  a  valid  law  and  that  the  judicial  powers,  or 
the  quasi -judicial  powers,  as  the  court  calls  them,  that  are  conferred 
upon  this  roturningboard  are  entirely  competent  to  be  so  conferred  un 
der  the  constitution  of  Louisiana. 

Then  upon  that  question — that  local  question  of  the  constitution 
and  laws  of  Louisiana — you  have  the  judgment  three  times,  nay  four 
times  over,  pronounced  under  similar  constitutions  by  the  court  of  last 
resort  of  the  State  of  Louisiana.  Surely  that  ought  to  be  enough 
upon  that.  But  pardon  me  again  by  way  of  making  "  assurance 
double  sure  "for  adding  to  them  other  authorities.  First  I  take 
Cooley's  Constitutional  Limitations,  page  623,  and  I  use  his  words  in 
the  way  of  fortification  of  Avhat  I  have  said.  Speaking  about  the 
proposition  that  boards  of  canvassers  generally  act  ministerially  in 
our  States,  he  proceeds : 

This  is  the  general  rule,  and  the  exceptions  are  those  -where  tho  law  under  which 
the  canvass  is  made  declares  tho  decision  conclusive,  or  whore  a  special  statutory 
board  is  established  with  powers  of  tinal  decision. 

So  that  according  to  the  authority  of  Mr.  Cooley  it  is  perfectly  com 
petent  for  their  Legislature  to  confer  the  quasi-judicial  powers  upon 
the  board,  and  where  that  is  done  by  the  State  statute  it  is  final,  and 
neither  by  quo  warranto  nor  by  any  other  trial  can  you  reverse  the  de 
cision  of  the  returning  board,  as  has  been  decided  in  Louisiana  in  the 
four  cases  that  I  have  now  given  to  you.  I  may  refer  also  to  Greer 
vs.  Shackelford,  Constitutional  S.  C.  Reports,  642.  Therd  is  also  a  case  in 
1  Metcalfe,  Kentucky  Reports,  Batman  vs.  Magowan,  533 ;  Tho  Peo 
ple  vs.  Goodwin,  22  Michigan,  496;  The  State  vs.  Marlow,  15  Ohio 
State  Reports,  114;  The  Commonwealth  vs.  Garrigues,  28  Pennsyl 
vania  State  Reports,  9;  The  Commonwealth  vs.  Baxter,  35  Pennsylva 
nia  State  Reports,  263;  The  Commonwealth  vs.  Leech,  44  Pennsyl 
vania  State  Reports,  332. 

In  every  one  of  these  cases  there  were  special  statutory  tribunals 
provided.  In  most  of  them  they  were  not  the  courts.  In  my  State 
it  happened  to  be  one  of  the  courts ;  but  in  every  one  of  them, 
whether  they  were  special  statutory  tribunals  or  whether  they  were 
courts,  it  was  held,  just  as  Cooley  says,  that  wherever  or  whenever  a 
special  tribunal  is  constituted  as  the  one  to  try,  as  this  does,  it  can 
be  made  final.  It  is  administrative,  to  adopt  tho  language  of  the 
supreme  court  of  Louisiana  in  the  old  case  in  13  Annual  Reports,  90 
and  requoted  in  every  subsequent  decision.  It  is  administrative ;  it  is 
a  part  of  the  political  machinery  of  your  country ;  and  it  is  per 
fectly  competent  unless  the  constitution  of  the  State  otherwise  pro 
vides  to  confer  it  upon  these  special  tribunals;  and  that  is  as  well 
settled  as  anything  that  is  settled  in  our  law. 

Mr.  President,  how  long  have  I  been  speaking  ? 

The  PRESIDENT.     One  hour  and  eight  minutes,  to  be  exact. 

Mr.  SHELLABARGER.  I  want  to  add  now  to  the  authorities  that 
were  read  by  my  friend  who  preceded  me  upon  this  subject  of  the 
finality  of  tho  acts  of  the  returning  board  in  Louisiana,  and.  also 
upon  the  question  I  have  just  passed  over,  to  wit,  that  it  is  compe 
tent  to  bestow  this  power  upon  this  special  tribunal,  and  is  not  un 
constitutional.  He  read  one,  the  State  on  the  relation  of  John  M. 
Bonnet  vs.  B.  L.  Lynch,  in  25  Louisiana  Annual  Reports,  page  267, 
and  I  add  the  case  of  Collin  vs.  Knoblock,  25  Louisiana  Annual  Re 
ports,  page  263,  and  also  13th  Louisiana  Annual  Reports,  page  90. 
The  court  go  over  very  thoroughly  and  carefully  and,  I  think, 
very  strongly  state  the  law  of  Louisiana  upon  this  subject ;  but 
whether  strongly  or  not,  for  the  purposes  of  this  tribunal  the  judg 
ments  of  the  Supreme  Court  of  the  United  States  making  the  laws 
of  the  States  and  their  interpretation  by  the  local  courts  the  law  of 
this  tribunal,  you  are  bound  to  abide. 

Gentlemen,  I  have  gone  over  these  various  outlying  questions  as 
well  as  I  could.  I  come  now  to  tho  main  question  in  this  case,  and 
really  as  it  seems  to  me  in  all  frankness  and  fairness  of  statement, 
the  only  question  there  is;  and  that  is  decided  by  what  you  have 
just  decided  in  the  case  of  Florida,  and  that  is  whether  or  not  it  is 
competent  for  you  to  go  behind  the  action  of  the  returning  board  of 
Louisiana  for  tlie  purpose  of  finding  out  what  happened  in  its  exer 
cise  of  the  jurisdiction  vested  by  the  statute.  I  need  not  restate, 
indeed  I  will  not,  what  has  been  decided  in  the  Florida  case.  I  know 
that  the  logic  and  law  of  that  case  has  decided  all  there  is  in  this,  if 


ELECTORAL  COMMISSION. 


101 


I  can  appreciate  legal  principle  at  all,  except  the  question  whether 
that  Louisiana  returning  board  was  one  authorized  by  valid  law  to 
exorcise  the  jurisdiction  that  it  undertook  to  exercise. 

Mr.  Commissioner  EDMUNDS.  Was  it  offered  in  the  Florida  case 
to  prove  that  the  State  board  of  canvassers  of  Florida  were  actuated 
by  corrupt  motives  in  whatever  mistakes  they  were  said  to  have  made  ? 
In  this  case  it  is  directly  offered  to  prove  that  the  motive  of  the  board 
in  doing  these  alleged  wrong  things  was  corrupt. 

Mr.  SHELLABAKGER.  1  understood,  your  honor,  that  the  proposi 
tion  in  the  Florida  case  offered  to  prove — without  designating  whether 
it  went  to  the  question  of  motive  or  not — fraud  generally,  corrupt 
action  011  the  part  of  the  Florida  returning  board.  That  was  the 
proposition,  to  prove  conspiracy  and  corrupt  motive  or  action  on  the 
part  of  that  board. 

Now  I  come  to  the  consideration  of  that  question  so  far  as  I  shall 
discuss  it  at  all,  because  I  shall  assume  now  in  the  remarks  that  I 
am  about  to  make  that  the  Florida  case  decided  nothing.  That  is 
the  assumption  wo  are  compelled  to  adopt  because  it  is  adopted  and 
this  debate  is  conducted  and  the  whole  case  is  conducted  on  the  idea 
that  nothing  has  been  decided  in  the  Florida  case.  Now  lot  mo  state 
what  I  understand  to  bo  the  main  question  or  foundation  inquiry  that 
we  have  reached,  and  it  is  this:  It  being  assumed  that  the  law  of 
1872  is  in  force  and  is  constitutional — I  have  gone  over  that — it  being 
assumed  that  this  board  had  the  functions  that  the  second  and  third 
sections  purported  to  give  to  the  returning  board,  then  is  it  compe 
tent  for  this  tribunal  to  inquire  into  the  method  of  the  exercise  of 
the  jurisdiction  that  the  board  did  possess  I  Let  me  restate  my  propo 
sition.  It  is  really  the  same  question,  very  much  less  clearly  stated, 
that  was  suggested  by  his  honor  Judge  MILLER,  to  wit:  Whether  there 
being  a  board  competent  to  make  these  returns,  competent  and  re 
quired  by  the  law  as  it  expressly  does  to  find  out,  to  declare,  and  cer 
tify  who  was  duly  elected  to  the  offices  in  the  State,  including  that 
of  elector,  that  being  the  jurisdiction  of  the  board,  you  have  the 
power  in  this  tribunal  to  try  the  question  as  to  how  they  reached  the 
result  that  they  did  reach  ? 

Upon  the  threshold  of  that  inquiry  pardon  me  for  saying  to  you 
that  when  we  deny  in  this  stage  of  inquiry  and  in  this  tribunal  the 
power  of  going  behind  the  finding  of  that  board,  the  charge  that  we 
are  thereby  covering  up  fraud  or  seeking  to  escape  scrutiny  is,  I  sub 
mit,  unutterably  unjust.  It  has  not  even  the  semblance  of  fairness 
in  it.  Why  ?  Simply  because — and  I  concede  his  law — my  friend, 
Mr.  Carpenter,  has  furnished  us  with  a  reply  to  all  the  loud  denun 
ciations  in  which  he  indulged  yesterday  ;  and  withrny  friend  Stough- 
ton  I  must  say  that  I  too  was  surprised  at  the  language  that  was 
brought  into  this  high  tribunal  when  he  undertook  to  denounce  four 
men  that  he  probably  never  saw  as  four  villains  of  Louisiana.  I  say 
the  language  was  not  worthy  of  my  friend.  It  is  surely  not  worthy 
of  this  tribunal.  Why  do  I  say  that  our  position  is  no  concealment 
of  fraud  ?  First  of  aHlcyecause  it  is  begging  the  whole  question  to  say 
that  you  have  a  right  to  try  the  question  of  fact  that  discloses  this 
fraud  in  this  tribunal.  I  said  a  moment  ago  that  he  begged  the 
whole  question  when  he  said  we  were  undertaking  to  cover  up  fraud 
by  our  objection  to  this  evidence.  It  just  occurs  to  me  that  in  a  case 
not  long  ago  decided  by  his  honor  Mr.  Justice  FIELD,  in  13  Wallace, 
347  where  Mr.  Bradley  sued  Mr.  Fisher,  a  judge  of  this  District,  be 
cause  he  fraudulently,  maliciously,  wantonly,  and  corruptly  turned 
him  away  from  the  bar,  Justice  FIELD  met  that  as  a  court,  as  a  law 
yer  would,  by  saying  that  is  one  of  the  cases  where  you  cannot  show 
fraud  for  reasons  that  are  given  by  the  justice  in  the  decision.  It 
would  have  been  strange  logic  and  stranger  law  for  Mr.  Carpenter  to 
have  got  up  and  insulted  the  court  by  saying,  "  You  are  nine  villains 
and  conspirators  undertaking  to  shut  out  the  light  of  truth  from  the 
courts  of  the  country."  It  would  have  been  just  as  worthy,  though, 
as  this  remark  here  to  day. 

Then  take  the  case,  Field  vs.  Seabury,  19  How.,  331,  an  action  of  eject 
ment  coming  up  fromCalifornia  on  a  writ  of  error,  where  a  lawmaking 
a  grant  had  been  got  through  the  Legislature  by  fraud  whereby  the 
grantee  under  the  fraudulent  deed  brought  himself  within  the  cate 
gory  of  persons  whose  titles  to  land  were  confirmed  by  an  act  of  Con 
gress.  He  got  his  grant  by  a  fraud  in  the  Legislature.  He  brought 
himself  within  the  category.  His  opponent  sought  to  set  up  the 
fraud:  but  no,  said  the  Supreme  Court  of  the  United  States,  it  is  not 
true  that  fraud  in  every  forum  vitiates  everything ;  you  are  in  the 
wrong  forum;  you  must  attack  this  thing  in  the  right  place.  So 
with  us  to-day  here  and  now.  Gentlemen,  it  is  an  insult  to  your  in 
telligence  to  say  that,  because  as  mere  counters,  as  mere  ministerial 
officers,  you  cannot  go  into  frauds,  therefore  here  is  an  attempt  to 
cover  up  fraud. 

Look  at  it  for  a  moment  in  another  light.  This  argument  of  the 
gentlemen  contains  in  itself  an  utter  felo  de  se.  How  wide-mouthed 
was  their  declamation  when  they  were  talking  to  you  about  the  fraud 
of  the  returning  board  in  Florida.  What  was  the  fraud  ?  It  was  a 
fraud  which  was  committed  by  them,  they  being  mere  ministerial  of 
ficers,  in  usurping  jurisdiction  and  going  behind  the  returns  from  the 
counties  and  undertaking  to  throw  out  votes,  in  violation  of  law. 
There,  my  friends,  a  case  of  that  sort  could  not  be  inquired  into  ac 
cording  to  your  law.  Abide  by  your  law ;  stand  up  to  its  logic,  and 
take  its  consequences.  It  is  right,  and  it  is  right  because  of  what 
you  put  into  your  report  in  1873,  to  wit :  that  the  two  Houses  com 
bined  have  not  the  power  of  a  quo  icarranto  court.  You  could  not  go 


behind  the  returns.  Therefore  do  not  talk  to  me  about  our  position 
being  one  designed  either  in  logic,  law,  or  morality  to  shut  out  evi 
dence  of  fraud. 

But  more  than  that,  do  not  forget  that  my  friend,  Senator  Carpen 
ter,  said  to  you  last  night,  and  he  read  the  law-books  to  prove  it,  that 
the  courts  of  the  United  States  to-day,  under  the  existing  law  bestow 
ing  jurisdiction  upon  the  circuit  courts,  have  power  to  try  which  of 
these  two  men  has  been  elected  President  of  the  United  States. 
Did  he  not  say  that  ?  Did  he  not  read  the  statutes  to  prove  it  to  yon  ? 
Did  ho  not  take  the  ground  that  there  was  such  power  to-day ;  and 
that  to-morrow,  if  you  make  your  decision,  af ter  the  4th  of  March,  he 
can  come  with  his  quo  warranto  and  can  retry  the  question  as  to  who 
is  President.  I  do  not  undertake  to  say  whether  that  is  law  or  not ; 
but,  if  it  bo  law,  then  it  ill-becomes  our  friend  to  talk  to  us  about  this 
being  an  attempt  to  put  a  man  into  the  Presidency  of  the  United 
States  by  fraud. 

I  remember  a  remark  that  was  made  by  King  James  in  regard  to 
the  Novum  Organ um  of  Lord  Bacon.  He  said  the  book  was  like  the 
peace  of  God,  that  it  passed  all  knowledge.  These  objections  on  the 
other  side  are  just  of  that  sort.  At  one  moment  we  find  them  saying 
to  you  that  the  divorcement  between  the  judiciary  and  the  executive 
and  the  legislative  is  complete,  and  therefore  Congress  could  not  ex 
ercise  judicial  powers;  but  the  very  next  moment  they  say  to  you, 
"Yes,  you  have  all  judicial  powers;  you  can  do  the  same  thing  that  a 
quo  warranto  could,  and  because  a  quo  warranto  could  try  this  thing, 
therefore  you  can  try  it."  Thus  my  brother  Carpenter  gets  felo  de  ae 
into  his  argument  there.  Then  in  another  place  you  find  these  gen 
tlemen  coming  up  and  saying  that  Mr.  Kellogg  was  the  governor  of 
Louisiana,  and  therefore  ho  is  no  elector,  and  then  the  next  moment 
you  have  them  coming  forward  and  saying,  "No,  he  is  not  an  officer 
at  all ;  he  is  not  the  governor  of  Louisiana,  but  McEnery  is."  To 
such  strange  positions  gentlemen  most  eminent  are  driven  in  this 
frantic  endeavor  to  escape  from  the  familiar  requirements  of  the  law. 

Now,  if  you  will  pardon  me,  I  will  read  on  this  point  one  single  au 
thority  and  then  will  trouble  you  with  no  more.  Ireadit  because  of 
its  application  to  the  point  upon  which  I  am  now  engaged.  It  is  the 
case  of  Hulsemau  vs.  Reeves,  in  41  Pennsylvania  State  Reports,  39(>. 
It  was  a  bill  to  restrain  the  defendants  from  using  election  certifi 
cates  to  get  their  seats  as  members  of  the  common  council  from  the 
nineteenth  ward  in  Philadelphia,  and  among  the  grounds  for  the  in 
junction  were: 

1.  That  when  the  returning  board  met  and  made  the  canvass  it  was  without  au 
thority  of  law,  and  the  proceedings  were  therefore  null  and  void,  because  issued  by 
a  defunct  board. 

That  brings  squarely  up  your  biggest  question,  the  want  of  au 
thority  in  the  body. 

2.  That  this  defunct  board  cotmted  forged  returns. 

That  is  another  big  thing  here. 

3.  That  even  these  forged  returns  never  reached  the  board  in  any  lawful  way,  but 
surreptitiously  and  without  certificates,  and  the  bill  alleged  that  the  certificates 
were  therefore  utterly  void. 

There  are  two  things  in  that  decision  that  I  want  to  call  attention 
to.  The  first  proposition  is  in  these  words : 

It  is  alleged  that  on  the  second  Tuesday  of  November  some  of  the  return  judges 
refused  to  moot,  and  that  those  who  did  meet  met  at  an  unusual  place  to  count  the 
soldiers'  votes  and  to  issue  the  certificates;  but  the  affidavits  of  the  defeudants 
seem  to  us  sufficiently  to  account  for  this  by  showing  that  the  duties  of  the  return 
judges  wore  so  interfered  with  by  a  disorderly  crowd  that  they  could  not  be  per 
formed  at  the  usual  place. 

While  I  am  on  that,  let  mo  make  use  of  it  in  another  connection. 
There  was  a  case  where  the  returning  officers  were  required  to  meet 
and  make  their  return  within  a  certain  time,  and  were  also  required 
to  have  their  meeting  at  a  certain  place.  It  does  not  appear  in  the 
report  whether  that  certain  place  was  pointed  out  by  statute  or  by 
usage ;  it  is  spoken  of  as  a  failure  to  meet  at  the  usual  place.  Per 
haps  Judge  STUONG,  who,  I  think,  was  on  that  bench  at  the  time,  will 
enable  mo  to  know  how  that  was.  At  any  rate,  that  is  the  way  it 
appears  in  the  report.  There  were  two  defects  in  the  return ;  one 
was  that  the  board  met  at  the  wrong  time;  the  second  was  that  they 
met  at  the  wrong  place.  The  supreme  court  of  Pennsylvania  say 
that  it  was  a  sufficient  reason  for  their  riot  meeting  at  that  time  and 
at  that  place,  that  they  could  not  do  so  by  reason  of  mob  violence,  and 
that  they  could  perform  that  act  at  another  time  and  place.  I  say 
that  for  the  purpose  of  stating  this,  and  I  want  to  state  it  once  for 
all,  for  I  shall  probably  not  have  time  to  discuss  the  question  in  ex- 
tenso ;  but  I  want  to  lay  it  down  and  state  it  carefully  that  these 
provisions  in  regard  to  the  sending  up  of  affidavits,  to  their  being  at 
tached  with  wax,  in  regard  to  the  time  of  their  taking,  &c.,  are  just  • 
like  this  one  in  the  Pennsylvania  State  Reports  relating  to  an  election ; 
they  are  directory,  and  they  are  not  jurisdictional  in  the  sense  of  that 
word  as  applied  to  the  trial  of  private  rights  of  the  citizen.  Let  mo 
restate  it,  and  perhaps  in  a  little  different  form,  for  I  wish  to  leave  it 
in  your  minds,  if  it  is  worthy  of  being  left. 

Because  this  is  a  political  process,  because  it  is  a  step  in  govern 
ment  as  distinct  from  a  trial  of  private  rights  of  suitors  in  the  courts, 
because  it  is  that,  therefore  the  law  is  that  any  affirmative  require 
ment  of  this  kind  which  is  either  not  accompanied  or  connected  with 
negative  words  prohibiting  the  thing  from  being  done  at  another 
time  or  in  another  way,  or  else  is  not  of  such  essence  of  the  very  pro- 


102 


ELECTOllAL  COMMISSION. 


vision  as  to  spoil  the  provision  if  it  is  not  done  in  the  time  and  way 
pointed  out — in  every  such  case  the  law  is  directory.  I  do  not  say 
that  these  acts  in  regard  to  the  returning  of  allidavits  can  be  dis 
pensed  with ;  but  I  say  the  things  required  can  be  done  at  other  times 
and  in  other  ways  as  soon  as  the  violence  will  suffer  them  to  be  done. 

Gentlemen,  look  at  the  reason  of  the  thing.  Is  it  possible  that  you 
are  going  to  hold  that  that  same  violence  that  rendered  it  impossible 
to  vote,  and  at  the  same  time  rendered  it  impossible  for  the  officers 
hafely  to  make  their  affidavits  and  their  returns,  shall  triumph  so  that 
they  cannot  do  it  at  another  time  ?  Beware  before  you  come  to  such 
a  conclusion.  If  you  do  you  will  do  it  in  the  face  of  the  law.  You 
will  find  Parsons,  that  chief-justice  who  stands  in  his  illustrious 
fame  next  to  Marshall  himself,  and  perhaps  his  peer,  declaring  in 
2  Massachusetts  Keports  that  whenever  one  of  these  laws  con 
tains  no  negative  words  and  the  provision  as  to  time,  place,  and  cir 
cumstance  does  not  go  to  the  essence  of  the  transaction  or  affect  it, 
in  every  such  case  the  provision  is  directory  merely. 

Mr.  Commissioner  HOAR.  Judge  Shollabarger,  I  should  like  to 
ask  you  a  question,  whether  that  is  not  of  the  essence  of  the  transac 
tion?  What  do  you  make  of  the  provision  that  "any  person  inter 
ested  in  the  office  by  reason  of  being  a  candidate  shall  be  allowed  a 
hearing  on  making  application  within  the  time  for  the  forwarding  of 
the  returns  of  said  election  ?  "  In  order  to  give  the  person  interested 
in  the  office  the  opportunity  for  a  hearing  or  the  power  of  complying 
with  the  requisition  that  he  shall  make  that  application  in  time, 
must  he  not  find  on  the  copy  sent  to  the  clerk's  office  notice  that  the 
validity  of  the  voting  at  the  particular  polling-place  or  particular 
parish  is  to  be  drawn  in  question  ?  In  other  words,  can  the  essential 
right  of  the  person  interested  in  the  office  to  be  heard  before  the  re 
turning  board  be  preserved  if  you  regard  this  as  merely  directory,  and 
not  essential  ? 

Mr.  SHELLABARGER.  I  answer  that  first  by  saying  that  that  is 
a  suggestion  addressed  to  the  consideration  of  convenience.  It  is  a 
useful  provision  beyond  all  doubt ;  it  is  a  proper  provision  to  be  obeyed ; 
but  it  being  a  mere  suggestion  going  to  convenience,  it  is  not  so  of 
essence  as  that  no  violence  or  impossibility  of  executing  it  at  the 
time  shall  forbid  that  notice  being  given  to  the  candidate  in  some 
other  way,  or  in  that  way  at  some  later  date,  or  in  some  way  that  is 
adequate,  so  that  he  shall  have  the  opportunity  in  the  language  of 
the  statute  to  have  his  hearing  before  the  time  for  making  returns 
shall  have  expired.  That,  it  seems  to  me,  is  an  answer.  If  it  is  not, 
I  accept  the  consequences  of  its  not  being.  If  it  is  not  essential  at 
all  to  the  case  that  we  should  maintain  the  proposition  that  I  am 
stating,  still  I  believe  it  to  be  the  law,  and  I  submit  it  to  this  tribunal. 

I  was  about,  when  Mr.  HOAR  kindly  asked  the  question,  to  take 
this  case :  Take  the  case  of  the  jurisdiction  conferred  by  the  act  of 
1795  on  the  President  of  the  United  States  to  make  proclamation  and 
to  require  insurgents  to  disperse,  and  all  that.  There  you  remember 
it  is  a  constitutional  provision  that  interference  can  only  occur  upon 
a  vote  and  request  of  the  Legislature,  if  the  Legislature  be  in  session, 
or  the  executive,  if  it  be  not  in  session ;  but  yet  when  the  time  came, 
as  it  did  come  sadly  in  our  history,  when  that  same  violence  that  made 
the  insurrection  rendered  it  impossible  for  the  Legislature  to  send 
the  summons,  when  the  Legislature  itself  went  into  the  mischief,  was 
a  part  of  it,  and  when  the  executive  made  a  part  of  the  mischief, 
then  came  the  time  when  the  life  of  the  State  was  rescued  by  still 
issuing  the  proclamation  calling  for  the  troops  and  attempting  the  sup 
pression  of  the  insurrection  in  the  absence  of  all  requests.  I  take  it  as 
entirely  analogous  to  and  confirmatory  of  the  proposition  that  I  now 
restate  in  the  light  of  the  case  of  Hulseman  vs.  Reeves,  in  41  Penn 
sylvania  State  Reports,  in  the  light  of  the  reason  of  the  thing.  It  is 
that  the  time  of  making  the  return,  the  attaching  of  it,  &c.,  are  not 
jurisdictional  in  the  sense  that  they  camnot  be  done  at  another  time ; 
but  that,  wherever  the  mischief  in  fact  exists,  wherever  the  violence 
in  fact  has  destroyed  the  election,  and  wherever  that  fact  is  made 
known  in  duo  time  to  the  returning  officers,  there  their  jurisdiction 
to  exclude  votes  has  attached  and  they  can  make  the  exclusion. 

But  that  is  not  necessary  to  the  purposes  of  the  our  case,  as  I  said 
a  moment  ago,  and  I  now  come  back  to  the  proposition  that  I  stated 
awhile  ago,  that,  these  men  having  the  requirement  put  upon  them 
that  they  shall  canvass  and  make  return  as  to  every  officer  and  de 
clare  who  is  properly  and  duly  elected,  there  is  the  scope  of  their  juris 
diction.  Under  that  they  had  power  to  decide  who  was  elected  and 
to  grant  these  certificates  ;  and  that  maxim  applies  which  presumes 
that  all  things  are  done  rightly  by  officers  until  the  contrary  is  shown, 
which  you  will  find  decided  in  a  number  of  cases  that  I  have  on  my 
brief,  but  will  not  stop  to  read  (see  12  Wht.,  70)  because  it  is  not  only 
familiar  law,  but  it  is  a  maxim  of  the  law  that  all  things  done  offi 
cially  are  presumed  to  bo  rightly  done  until  the  contrary  is  proved. 
Therefore,  as  suggested  by  the  question  of  Judge  MILLER,  as  sug 
gested  by  the  manifest  law  of  the  case,  these  men  having  power  to 
exercise  this  jurisdiction,  the  jurisdiction  having  been  exercised,  you 
not  being  a  court  can  only  count,  not  having  judicial  functions  suffi 
cient,  as  my  friend  Trurnbull's  report  says,  must  stop  without  going 
behind  and  canvassing  the  votes  for  electors.  That  being  your  func 
tion,  I  say  this  jurisdiction  of  this  board  thus  exercised  is' presumed 
to  have  been  lawfully  exorcised  ;  and  for  the  purposes  of  this  count, 
you  have  rightfully  decided  the  law  as  stated  by  Pinckney,  as  stated 
by  your  decision  in  the  Florida  case,  and  as  recognized  by  the  deci 
sions  that  I  have  read,  and  I  was  about  to  conclude  by  reading  one 


single  one  more.  Lowrie,  Judge,  says,  in  the  case  in  41  Pennsylvania 
State  Reports : 

"Wo  have,  therefore,  no  ground  left  for  our  interference,  but  the  single  one  tbat 
the  return  judges  included,  in  their  enumeration,  returns  purporting  to  be  from 
three  companies  of  volunteers  which  were  mere  forgeries.  We  admit  that,  in  tb 
evidence  before  us,  it  appears  clear  to  us  all  that  those  returns  are  forgeries,  and 
that  it  was  only  by  their  inclusion  in  the  enumeration  that  the  defendants  have 
obtained  certificates  of  their  election.  We  admit,  therefore,  that  the  evidence 
proves  that  those  certificates  of  the  election  of  the  defendants  are  founded  in  mani 
fest  fraud,  the  forgery  of  some  unknown  person,  but  we  do  not  find  that  the  do- 
fondants  had  any  hand  in  it,  and  wo  trust  they  had  not. 

Can  we,  on  this  account,  interfere  and  declare  the  certificates  void  ?  "We  think 
not.  According  to  our  la\ys,  the  election  has  passed  completely  through  all  its 
forms,  the  result  has  been  in  due  form  declared  and  certified,  and  the  defendants 
have  received  their  certificates  of  election,  and  are  entitled  to  their  seats  as  mem 
bers  of  the  common  council.  The  title-papers  of  their  offices  are  complete,  and 
have  the  signatures  of  the  proper  officers  of  the  law  ;  and  if  they  are  vitiated  by 
any  mistake  or  fraud  in  the  process  that  has  produced  them,  this  raises  a  case  to  be 
tried  by  the  forms  of  "  a  contested  election." 

Gentlemen,  this  case  goes  all  over  the  one  at  the  bar ;  it  answers 
all  this  exclamation  about  fraud,  about  our  attempt  to  cover  fraud, 
about  what  are  the  functions  of  a  counting  board  and  what  the  func 
tions  of  a  contesting  board : 

And  if  they  are  vitiated  by  any  mistake  or  fraud  in  the  process  that  has  pro 
duced  them,  this  raises  a  case  to  be  tried  by  the  forms  of  "  a  contested  election," 
before  the  tribunal  appointed  by  law  to  try  such  questions,  and  not  by  the  ordi 
nary  forms  of  logal  and  equitable  process  before  the  usual  judicial  tribunals.  It 
is  part  of  the  process  of  political  organization,  and  not  a  question  of  private  rights ; 
and  therefore  the  Constitution  does  not  require  that  the  courts  shall  determine  its 
validity. 

The  law  has  appointed  a  special  tribunal  to  try  just  such  a  question  as  this,  and 
we  can  have  no  right  to  step  in  between  the  case  and  that  tribunal,  and  alter  the 
return  of  the  election  judges,  and  annul  their  certificates.  Plain  as  the  fraud  ap 
pears,  and  earnestly  as  wo  condemn  it  as  citizens,  it  is  no  part  of  our  functions 
as  a  court  to  sit  in  judgment  on  it.  The  commoa  council  is  the  proper  tribunal  to 
try  cases  of  contested  elections  relative  to  its  own  members,  and  there  the  fraud 
aiid  forgery  must  necessarily  be  tried  and  decided  with  final  effect.  They  are  ap 
pointed  by  law  to  try  the  whole  case,  and  they  alone  can  try  it.  We  decided  this 
last  year  at  Philadelphia,  in  the  case  of  The  Commonwealth  vs.  Baxter,  11  Casey, 
204,  a  case  from  Bradford  County,  where  a  commiHsiouorof  highways  had  received 
a  regular  certificate  of  election,  and  whore  we  decided  that  it  could  be  avoided  only 
by  a  regular  process  of  a  contested-election  case.  Perhaps  that  case  may  bo  found 
worthy  of  examination. 

If  in  this  way  wo  suffer  a  gross  fraud  to  pass  through  our  hands  without  remedy, 
it  is  not  because  we  have  any  mercy  for  the  fraud,  but  because  we  cannot  frus 
trate  it  by  any  decree  of  ours  without  an  act  of  usurpation.  Another  tribunal  is 
appointed  to  administer  the  remedy,  and  wo  believe  that,  on  proper  application,  it 
will  administer  it  rightly,  according  to  the  evidence  it  may  have. 

And,  gentlemen,  I  say  here  now  and  once  for  all  that  there  is  a 
proper  tribunal,  according  to  my  friend  Carpenter's  able  argument 
last  night ;  that  tribunal  is  the  courts  of  the  country,  and  there  wo 
invite  them  to  go  with  this  case,  where  our  side  can  bo  heard  as  well 
as  theirs. 

I  now  conclude  this  argument  by  an  allusion  or  two  to  what  has 
been  the  weight  and  the  burden  of  debate  on  the  other  side.  It  is  in 
regard  to  this  alleged  outrage  in  the  State  of  Louisiana.  Why,  gentle 
men,  are  we  to  shut  our  eyes  in  scanning  this  question  as  to  where 
this  wrong  and  fraud  and  violence  is  going  ultimately  to  be  found 
when  it  comes  to  a  tribunal  that  can  try  it  ?  Can  you  shut  your  eyes 
to  what  now  is  the  saddest,  if  not  the  saddest,  certainly  one  of  the 
saddest  chapters  of  American  history  ? 

I  remember,  Mr.  President,  as  you  do  right  well,  though  I  was  then 
but  a  boy,  when  the  Caroline  was  set  on  tiro,  sent  adrift,  and  it  was 
believed  that  one,  two,  or  more  American  citizens  were  destroyed 
by  the  act  of  the  British  government.  O,  the  thrill  of  indignation 
and  of  unutterable  horror  that  pervaded  the  whole  body-politic !  It 
was  only  by  the  matchless  diplomacy  and  the  strange  power  of  such 
intellects  as  Webster,  who  was  then  guiding  the  helm  of  state,  that 
your  country  was  rescued  from  universal  war  with  the  mightiest 
power  of  the  earth,  because  we  believed  that  by  an  outrage  of  the 
British  government  one  or  two  lives  of  American  citizens  had  been 
lost.  So  that  thing  struck  us  then;  but  how marvelously  inured  has 
the  public  mind  become  since  those  better  days  to  this  business  of 
the  destruction  of  American  citizens !  Why,  gentlemen,  by  actual 
count  made  in  an  official  report  to  the  Government  of  the  United 
States,  through  the  aid  of  General  Sheridan,  it  is  set  down  as  a  part 
of  your  history  that  in  this  blighted  and  blasted  State  of  Louisiana 
four  thousand  and  odd  citizens  have  been  murdered  by  plan,  mur 
dered  by  system,  by  organization,  murdered  for  the  purpose  of  put 
ting  down  the  right  of  the  black  man  to  vote,  and  that  thing  has 
been  going  on  and  on  and  on  through  these  dark  and  terrible  years. 

It  was  my  misfortune  to  go  once  myself  to  this  State,  sent  by  the 
Congress  of  the  United  States.  I  went  there  in  I860,  and  I  took 
the  testimony  of  hundreds  of  men  ;  and  when  I  was  taking  it  I  lit 
erally  sat  with  my  feet  in  pools  of  human  blood  (clotted  and  dried 
up  then,  but  still  visible)  shed  there,  that  of  Dr.  Dotsie  and  others, 
in  putting  out  the  free  government  of  the  State  of  Louisiana,  and  they 
did  put  it  out  right  well  and  effectually.  So  that  thing  has  been  going 
on  and  on  in  the  attempt  to  put  out  the  right  of  the  black  man  to  vote. 

Gentlemen  of  America,  you  have  written  in  the  last  fifteen  years  a 
grand  history  for  your  country,  a  grand  one  in  its  general,  large  as 
pects.  I  remember  with  gratification,  and  I  shall  till  I  die,  that  I  was 
once  thrown  in  company  with  the  most  illustrious  man  now  living  in 
Great  Britain,  illustrious  by  reason  of  his  intellect,  illustrious  by  rea 
son  of  his  great  deeds,  illustrious  by  reason  of  his  service  in  the  Brit 
ish  Parliament  for  thirty  years,  illustrious  because  of  his  adhesion  to 
the  cause  of  human  liberty  in  his  own  country  and  in  all  others,  I 


ELECTORAL  COMMISSION. 


'mean  John  Bright,  of  England.  I  remember  with  gratification  what 
he  said  to  me  in  regard  to  tho  last  chapters  that  we  had  written  in 
our  American  history.  Said  ho  to  me:  "Sir,  I  have  heen  apart  of  the 
British  Government  now  for  thirty  years.  In  that  time  I  have  thought 
we  in  the  British  country  had  enacted  some  great  affairs ;  and  so  wo 
have.  Wo  have  extended  the  right  of  the  Englishman  to  vote  ;  we 
have  obliterated  the  rotten  borough  system ;  we  have  emancipated 
the  Jews  ;  we  have  elevated  our  colonies;  we  are  extending  the  right 
of  the  children  to  be  educated,"  and  so  he  went  on  in  a  grand  cata 
logue  of  the  affairs  that  had  been  enacted  during  his  time  in  tho  Brit 
ish  Government,  and  then  he  concluded  by  saying :  "  Sir,  notwith 
standing  what  I  have  said  about  my  country,  I  say  to  you  that  you 
have  dwarfed,"  and  ho  brought  his  hand  down  on  tho  table  with  an 
emphasis  that  was  startling,  "  you  have  dwarfed  all  that  wo  have  done 
in  the  life  of  tho  British  nation  by  what  you  have  enacted  in  the  last 
ten  years  of  your  life.  You  have  saved  the  life  of  the  last,  the  one  Re 
public  of  the  earth,  and  the  cynosure  of  all  eyes  loving  human  liberty. 
You  have  done  more  than  that ;  you  have  put  out  of  the  Constitution  of 
your  country,  and  thereby  ultimately  out  of  the  earth,  tho  chatteliza- 
tion  of  the  human  soul."  Was  it  not  a  grand  tribute  ?  But  let  me  say 
to  you  now,  if  this  career  of  yours  as  a  nation  which  began  fifteen  or 
twenty  years  ago  in  this  direction  by  the  election  of  Mr.  Lincoln  to 
the  Presidency,  then  by  the  putting  down  of  the  rebellion,  then  by 
the  extinction  of  slavery  by  the  thirteenth  amendment,  then  by  your 
fourteenth  amendment  making  all  men  equal  before  the  law  in  all 
their  civil  and  political  rights,  then  making  all  men  free  to  vote,  if 
this  procession  of  yours  as  a  nation  and  wbich  is  indeed  like  the  pro 
cession  of  the  gods,  which  in  every  foot-fall  marks  a  constellation 
and  shakes  from  its  sandals  tho  star-dust  of  the  heavens,  if  your  ca 
reer  of  that  grand  description  is  to  end  by  going  back,  turning  around, 
and  abandoning  to  these  murderers  who  are  drenching  our  country, 
in  this  part  of  it  which  is  under  consideration  to-night,  in  blood  for 
purposes  of  tl  eir  disfranchisement,  then  indeed  this  career  of  yours 
will  bo  like  that  French  astronomer's,  described  so  magnificently  by 
one  of  our  most  gifted  men,  who  went  in  search  of  the  central  sun  of 
the  universe  until  he  found  it,  and  then  denied  the  existence  of  the 
God  that  made  it,  and  walked  back  to  perdition  in  the  night  of  his 
own  shadow. 

I  conclude  this  discussion  by  saying,  gentlemen  of  America — that 
is  a  higher  designation  than  gentlemen  of  the  Commission — gentle 
men  of  America,  remember  that  there  is  on  trial  here  to-night  the 
question  whether  those  laws  made  in  Louisiana  in  pursuance  of  article 
103  of  her  constitution  and  enjoining  it  on  the  Legislature  to  make 
laws  for  the  protection  of  the  right  of  the  freedman  to  vote  can  be 
sustained  and  enforced.  If  you  fail  to  execute  these  laws  you  will 
have  stabbed  your  country  in  that  place  where  by  the  very  traditions 
of  the  children  we  are  taught  the  life  of  the  country  is  to  bo  found 
and  is  to  reside,  to  wit,  in  the  freedom,  the  purity  of  the  ballot-box. 

Mr.  EVARTS.  I  was  expecting  to  address  the  Commission,  not  to 
so  great  a  length  as  my  associates,  and  I  certainly  would  much  prefer 
to  do  so  to-morrow  morning.  I  have  been  in  the  room  ever  since  ten 
o'clock,  not  being  able  to  leave  it  during  the  recess  that  was  given. 

Mr.  Commissioner  ABBOTT.  I  move,  Mr.  President,  that  we  ad 
journ.  It  seems  to  be  desirable  to  the  counsel  on  the  other  side.  My 
motion  is  that  we  adjourn  until  to-morrow  morning  at  ten  o'clock. 

Mr.  Commissioner  THURMAN.    I  propose  half  past  ten. 

Mr.  Commissioned  ABBOTT.  I  will  accept  the  amendment ;  say 
half  past  ten. 

Mr.  Commissioner  EDMUNDS.    I  ask  for  the  yeas  and  nays. 

Mr.  Commissioner  GARFIELD.  Let  us  take  ten  o'clock,  and  not 
call  the  yeas  and  nays. 

Mr.  Commissioner  ABBOTT.  I  have  no  choice  about  the  hour.  I 
•will  return  to  tho  original  motion. 

The  PRESIDENT.  The  amendment  is  to  strike  out  "  ten  "  and  in 
sert  "  half  past  ten,"  I  understand.  I  will  put  the  question  on  that 
amendment. 

The  amendment  was  rejected. 

The  PRESIDENT.  The  question  recurs  on  the  motion  that  tho 
Commission  adjourn  until  to-morrow  morning  at  ten  o'clock. 

Mr.  Commissioner  MORTON  called  for  the  yeas  and  nays. 

The  yeas  and  nays  being  taken,  resulted — yeas  7,  nays  7. 

Those  who  voted  in  the  affirmative  were :  Messrs  Abbott,  Bradley, 
Clifford,  Garfield,  Hunton,  Payne,  and  Strong — 7. 

Those  who  voted  in  the  negative  were :  Messrs.  Edmunds,  Field, 
Frelinghuysen,  Hoar,  Miller,  Morton,  and  Thurman — 7. 

So  the  motion  was  not  agreed  to. 

Mr.  Commissioner  THURMAN.  I  move  that  we  adjourn  until 
quarter  past  ten  to-morrow. 

Mr.  Commissioner  MORTON  called  for  the  yeas  and  nays. 

The  yeas  and  nays  were  taken,  and  resulted : 

YEAS 8 

NAYS , 7 

Those  who  \oted  in  the  affirmative  were:  Messrs.  Abbott,  Bayard, 
Bradley,  Clifford,  Field,  Hunton,  Payne,  and  Thnrman — 8. 

Those  who  voted  in  the  negative  were  :  Messrs.  Edmunds,  Freling 
huysen,  Garfield,  Hoar,  Miller,  Morton,  and  Strong — 7. 

So  the  motion  was  agreed  to ;  and  (at  six  o'clock  and  fifty-two  min 
utes  p.  m.)  the  Commission  adjourned  until  to-morrow  at  ten  o'clock 
and  fifteen  minutes  a.  m. 


THURSDAY,  February  15, 1877. 

The  Commission  met  at  ten  o'clock  and  fifteen  minutes  a.  m.,  pursu 
ant  to  adjournment,  all  tho  members  being  present. 

The  respective  counsel  appearing  in  the  Louisiana  case  were  also 
present. 

The  Journal  of  yesterday  was  read  and  approved. 

Mr.  EVARTS.  Mr.  President  and  gentlemen  of  the  Commission, 
the  general  subject  of  controversy  before  the  Commission  is,  how 
this  Commission,  under  the  powers  conferred  upon  it  ami  in  discharge 
of  the  duty  confided  to  it  by  the  act  of  Congress  under  which  it  is  or 
ganized,  shall  advise  the  two  Houses  of  Congress,  in  the  discharge  of 
their  duty  under  tho  Constitution  of  the  United  States  in  counting 
the  votes  for  President  and  Vice-President,  what  votes  shall  bo 
counted  for  the  State  of  Louisiana.  The  Constitution  has  undertaken 
to  determine  that  tho  State  shall  have  the  power  to  appoint  electors 
as  its  Legislature  may  direct,  and  no  authority  or  argument  can  dis 
parage  or  overreach  that  right  of  the  State.  That  right  is  in  the 
State.  It  is  not  a  gift  from  the  Federal  Government,  for  there  was 
no  Federal  Government  to  give  it.  It  is  not  carved  out  of  any  fund 
of  power  and  right  that  the  Federal  Government  possessed,  for  the 
Federal  Government  had  no  general  fund  of  power  or  right  out  of 
which  it  could  carve  a  gift  to  a  State.  The  State  of  Louisiana  stands 
in  this  behalf  as  one  of  the  original  thirteen  States  stood.  Whatever 
was  tho  right  of  one  of  the  original  thirteen  States  in  the  election  of: 
Washington  is  the  right  of  Louisiana  now  in  the  election  of  a  Presi 
dent.  And,  therefore,  it  is  not  to  be  measured  as  a  gift,  not  to  be 
measured  by  its  relation  to  any  general  fund  of  authority  on  the  sub 
ject  that  the  United  States  had  and  which  it  has  limited,  but  as  one 
of  the  original  conditions,  one  of  the  original  limitations,  one  of  tho 
original  distributions  of  power  out  of  which  and  by  which  combined 
comes  the  Government  of  the  United  States  and  exists  the  govern 
ment  of  each  State  as  a  member  of  tho  Union. 

This  topic  at  once  leads  us  to  consider  wherein  tho  Constitution  of 
the  United  States  has  established  and  how  it  has  distributed  tho  au 
thority  of  choosing  a  President  of  the  United  States,  what  part  of  it 
is  administered  and  administrate  as  the  action  of  the  Federal  Gov 
ernment,  and  what  part  of  it  is  administered  and  admiuistrable  as  a 
part  of  State  action  in  the  matter.  On  the  terms  of  the  Constitution 
is  this  demarkation  to  be  drawn  and  adhered  to  ?  And  in  this  regard 
as  well  as  in  every  other  respect  of  power  are  tho  maxims  of  the  Con 
stitution  as  to  construction  concerning  the  line  drawn  to  be  observed 
as  well  as  in  any  other  ?  The  Government  confers  nothing  upon  the 
States.  The  Government  comes  into  existence  by  and  through  tho 
States  and  their  people.  The  location  of  authority  is  primary  in  tho 
State,  and  is  in  the  General  Government  only  by  its  allotment  in  the 
terms  of  the  Constitution.  There  is  therefore  the  same  method  of 
construction  and  interpretation  in  drawing  the  line  and  in  maintain 
ing  its  defenses  in  this  matter  of  the  election  of  President  as  in  all 
others.  Whatever  the  Federal  Government  has  in  this  matter  of  tho 
election  of  a  President  it  has  by  force  of  terms  in  the  Constitution; 
and  whatever  the  State  has  it  has  upon  the  same  terms  ;  and  then 
the  ninth  and  tenth  articles  of  the  amendments  made  soon  after  the 
adoption  of  the  Constitution  apply,  that  there  is  to  be  no  disparage 
ment  of  rights  that  are  reserved  by  rights  that  are  conferred  ;  and 
that  whatever  is  not  conferred  upon  the  Federal  Government  by  thia 
Constitution,  and  is  not  forbidden  to  the  States,  is  reserved  to  tho 
States  or  to  tho  people. 

It  is  not  for  me  to  repeat  the  arguments  made  by  my  learned  asso 
ciates  so  well  and  by  me,  so  far  as  I  could  aid  them,  in  the  general 
discussions  which  were  presented  under  the  Florida  case.  These 
general  propositions  were  that  the  whole  matter  of  creating  tho< 
elector  belonged  to  the  State  ;  the  whole  matter  of  ascertaining,  ac-1 
crediting,  setting  forward  with  credentials,  belonged  to  the  State  so 
far  as  the  text  of  the  Constitution  read ;  and  that  whatever  the  stat 
ute  of  1792  had  sought  to  prescribe  in  the  matter  of  these  credentials 
was  directory  and  for  the  convenience  and  instruction  of  the  body 
that  was  to  count  the  votes,  as  to  the  fact  of  the  action  of  each  State ; 
that  the  elector  was  not  an  officer  of  the  State ;  that  in  no  very  con 
siderable  sense  could  he  be  treated  as  an  officer  of  the  United  States ; 
that  he  was  an  elector,  having  the  right  under  the  Constitution  of 
the  United  States  to  vote  for  President,  and  that  he  was  a  representa 
tive  elector,  and  was  to  be  measured  only  to  discern  whether  he  was 
deputized  to  act  as  an  agent  or  whether  he  was  accredited  with  tho 
voting  power  to  vote  as  an  elector  having  the  suffrage  in  his  hands. 
To  say  that  he  is  a  representative  elector  because  he  comes  to  be  the 
elector  in  representation  of  a  participation  in  the  government  of  a 
State  comes  to  nothing  more  than  to  say  that  you  members  of  the 
two  Houses  of  Congress  are  representative  legislators.  You  are  rep 
resentative  legislators.  You  are  legislators  in  a  Government  resting 
upon  the  will  of  the  people  and  on  its  communicated  authority  to  you 
as  representatives ;  but  you  are  not  deputies  to  derive  your  instruc 
tions  and  authority  from  a  principal  at  home.  You  are  representatives 
of  the  legislative  authority  lodged  theoretically  in  the  people  and 
in  the  theory  of  representation  possessed  by  you  in  the  same  plenary 
power  that  the  people  themselves  would  have  exercised  it. 

It  was  then  announced  as  our  proposition  that  after  the  appoint 
ment  of  the  elector,  then  the  vote,  and  the  title  to  vote,  and  the  exer 
cise  of  the  right,  and  performance  of  the  duty  to  vote  on  the  part  of 
the  elector  had  come  under  the  exclusive  dominion  of  the  Federal 


104 


ELECTORAL  COMMISSION. 


Constitution;  the  representation,  so  far  as  it  entered  into  the  creation 
of  the  title  and  the  conferring  of  authority,  had  been  exhausted. 

In  the  Florida  case,  as  here,  these  considerations  had  their  weight 
and  wore  accepted  or  declined  by  the  different  members  of  the  Com 
mission,  according  to  their  estimate  of  the  Constitution  and  laws  of 
their  country.  In  that  case,  as  in  this,  there  were  present  before  this 
Commission  matters  of  consideration,  about  which,  as  open  entirely 
lor  your  inspection  audnocessarilyforiniugapart  of  your  determination 
there  wasno  question — I  mean  the  papers  that  were  openedby  the  Presi 
dent  of  the  Senate  according  to  the  Constitution  in  the  presence  of  the 
two  Houses  of  Congress.  They  are  before  you  under  the  lawof  1877,  as 
they  were  before  that  assemblage  in  that  presence  under  the  Consti 
tution  without  the  law  of  1877,  and  now  the  question  as  to  what 
more  is  or  can  be  before  you  is  a  question  under  the  law  of  1877,  as 
interpreted  by  its  own  terms  in  the  light  of  the  Constitution  of  the 
United  States.  It  has  passed  beyond  dispute ;  we  did  not  dispute  it 
in  the  Florida  case  ;  and,  if  we  are  to  receive  the  intimation  of  Mr. 
Justice  BRADLEY,  it  has  passed  beyond  dispute  in  your  own  delibera 
tions,  as  receiving  the  concurrence  of  all,  that  you  have  the  powers 
that  the  two  Houses  have  in  the  act  and  transaction  of  counting  the 
votes,  and  no  other  powers  ;  not  that  you  have  the  powers  that  the 
two  Houses  of  Congress  together  or  separately  have  as  the  Legisla 
ture  of  the  country  ;  not  that  you  have  any  of  the  powers  that  either 
of  them  separately  has  in  respect  to  what  is  accorded  to  either  of 
them  separately  in  the  Constitution  outside  of  legislative  power. 

You  have  no  particle  of  any  authority  that  is  lodged  in  the  two 
Houses  of  Congress  under  any  of  the  general  grants  of  authority  to 
them  as  the  Legislature  or  to  either  of  them  separately,  except  what 
is  granted  by  the  Constitution  within  the  very  terms  of  this  article, 
that  the  transaction  being  completed  in  the  States  and  they  having 
forwarded  their  votes  hither  under  such  authenticity  as  entitles  them 
to  the  first  reception  and  brings  them  into  the  presence  of  the  two 
Houses  of  Congress  that  their  contents  may  be  disclosed  and  acted 
upon.  Whatever  action  thereupon  proceeds  by  the  two  Houses  there 
met  or  by  the  two  Houses  separating  in  the  discharge  of  and  in  the 
continued  exercise  of  the  function  of  counting  the  votes,  this  is  passed 
over  to  you  that  your  advice  may  be  given  to  them,  as  it  would  pro 
ceed  out  of  their  original,  their  independent  deliberations  and  con 
struction  if  they  had  limited  themselves  to  the  conduct  of  the  count 
ing  of  the  votes  in  the  simple  terms  of  the  Constitution.  They  then 
proceed  to  count.  They  count  the  votes.  Having  made  a  law  unto 
themselves  which  they  cannot  transcend  without  its  repeal,  this  in 
struction  as  to  what  votes  ought  to  be  counted  under  the  Constitution 
of  the  United  States  they  will  act  upon  as  determining  what  votes 
under  that  Constitution  ought  to  be  counted  unless  their  united  judg 
ment  shall  contravene  this  great  authority  they  have  given  to  you. 

We  insisted,  therefore,  in  the  Florida  case  that  one  great  considera 
tion  in  determining  what  the  powers  of  Congress  were  in  this  mere 
procedure  was  what  the  nature  of  the  procedure  was,  what  the  con 
stitutional  objects  and  solicitudes  in  providing  for  the  transaction 
had  indicated  as  the  will  of  the  people  when  they  adopted  the  Con 
stitution  of  the  United  States,  and  we  were  met  by  very  learned  and 
very  authoritative  statements  from  very  eminent  lawyers. 

Mr.  Field,  in  behalf  of  the  House  of  Representatives,  proposed  to 
you  that  you  had  at  least  the  powers  of  a  court  on  quo  ivarranto.  Mr. 
O'Conor,  with  that  accuracy  and  precision  and  acceptance  of  all  log 
ical  results  that  proceed  from  his  statements,  demanded  the  same  au 
thority  ;  insisted  that  otherwise  the  correction  of  frauds,  the  redress 
of  violence,  the  curbing  of  cases  of  authority  would  be  remediless,  and 
yet  in  their  nature  being  festering  wounds  in  the  body-politic  would 
work  its  ruin. 

Those  demands  we  met ;  those  demands  we  answered.  And  now, 
without  one  particle  of  change  in  the  law,  the  Constitution,  or  the 
area  of  this  debate,  we  are  told  by  the  responsible  representatives  of 
the  Houses  of  Congress  through  their  objections  and  by  the  eminent 
counsel  that  have  thus  far  put  forth  their  positions,  that  you  have  no 
judicial  power  whatever ;  that  we  were  quite  right  about  that ;  there 
could  not  be  any  judicial  power  outside  of  the  courts  inferior  to  the 
Supreme  Court,  the  judges  whereof  were  appointed  by  the  President 
and  confirmed  by  the  Senate,  and  hold  their  offices  for  life  upon  a 
stated  compensation.  Why  might  we  not  have  been  saved  the  former 
discussion  if  we  are  to  enter  upon  this  with  any  great  trust  in  its 
soundness  or  its  permanence  ?  Obedience  to  the  conclusions  of  this 
Commission  as  requiring  this  shifting  of  ground  in  our  favor  would 
be  a  respectable  support  for  the  maneuver,  but  I  have  not  heard  that 
assigned  as  the  reason  why  the  argument  in  the  Florida  case  was 
abandoned  and  an  independent  and  inconsistent  one  proposed  here. 

Now  what  is  the  power  ?  It  is  what  is  called  a  legislative  power 
that  is  supposed  to  reside  in  this  Commission  in  determining  how  it 
should  advise  that  the  votes  should  be  counted,  it  being  a  legislative 
power  in  the  two  Houses.  Now  there  are  quite  as  many  constitu 
tional  objections  to  a  legislative  power  vested  in  this  Commission  or 
a  legislative  po  wer  resting  in  the  two  Houses  of  Congress  in  the  mat 
ter  of  counting  the  votes,  as  there  are  to  any  other  form  or  description 
of  power.  The  legislative  power,  the  great  principal  power  of  the 
Government,  is  vested  in  those  Houses  when  they  act  in  such  concur 
rence  as  the  Constitution  requires  before  any  legislation  is  effected. 
It  is  not,  therefore,  in  that  sense  that  our  learned  friends  attribute  leg 
islative  power  either  to  the  two  Houses  or  to  you.  It  is  in  the  sense  of 
a  political  power,  of  political  action  in  a  political  transaction,  and 
those  are  the  limits  that  we  had  assigned  in  our  argument  of  the  Flor 


ida  case  to  any  possible  powers  of  the  two  Houses,  to  wit,  that  in  a 
transaction  of  election  which  starts  from  the  primary  polling-places 
and  proceeds  to  the  point  of  developing  and  accrediting  the  elector  up 
to  the  scrutiny,  so  far  as  it  is  open  here,  and  the  counting  of  the  elect 
oral  votes,  (not  of  votes  for  electors,  but  votes  of  electors,)  it  was  all  a 
part  in  the  series  of  movements  that  had  for  their  purpose  the  trans 
action  of  the  political  act  of  bringing  into  office  a  President  of  the 
United  States  ;  and  that  the  two  Houses  of  Congress,  under  the  Con 
stitution  as  it  reads,  must  discharge,  when  the  President  of  the  Sen 
ate  opened  the  certificates,  that  duty  on  those  certificates  alone,  un 
less  by  some  prior  legislation  of  Congress — putting  in  execution,  and 
thus  interpreting  some  other  powers  that  they  assumed  to  possess,  in 
their  construction  of  the  Constitution — Congress  had  provided  legal 
means  for  the  exercise  of  such  further  powers.  The  terms  of  this  act 
carefully  observed  the  limitation  that  this  act  was  not  to  be  inter 
preted  as  carrying  any  congressional  powers  that  were  determined 
and  created  by  the  act,  or  any  interpretation  to  be  put  upon  it  in  its 
own  terms,  but  that  this  act  was  to  carry  only  such  powers  as  were 
in  the  two  Houses  under  existing  law  and  as  solely  dotcrminable  by 
the  Constitution  and  existing  law. 

As  a  primary  consideration,  then,  as  in  the  Florida  case,  it  is  to  be 
determined  not  as  an  abstract  question.  Let  me  ask  the  Commission 
to  consider  that  it  is  to  determine  not  what  hypothetical  proofs  might 
be  received,  but  what  proofs  within  the  offers  are  rightfully  to  be 
received  and  added  to  the  elements  and  funds  of  proof  which  the 
papers  opened  by  the  President  of  the  Senate  themselves  disclose. 

What  then  is  the  offer  of  proof,  not  in  its  details  but  in  its  principles  ? 
What  is  the  state  of  proof  as  presented  on  the  certificates  in  aid  or 
supplement  or  contradiction  of  which  this  proof  aliunde  is  to  be  intro 
duced?  The  first  certificate  contains  in  itself  every  certainty  and 
every  conclusive  credential  that  the  laws  and  the  Constitution  of  the 
United  States  or  of  the  State  of  Louisiana  prescribe.  This  certificate 
also  discloses  a  special  state  of  facts  concerning  two  of  the  electors 
who  cast  their  votes;  I  mean  Levissee  and  Brewster;  this  special 
state  of  facts,  that  being  among  the  electors  that  were  voted  for  and 
that  were  covered  by  the  governor's  certificate,  when  the  electoral 
college  met  they  were  not  in  attendance ;  that  the  statute  prescribed 
that  their  attendance  should  bo  waited  for  until  four  o'clock  in  the 
afternoon  of  the  day,  and  that  for  non-attendance  by  itself  and  of 
itself  alone  on  the  part  of  any  person  chosen  or  accredited  by  the  ac 
tion  of  the  State  authorities,  the  vacancy  thus  created  should  be  filled 
by  the  acting  electors ;  that  at  that  moment,  on  that  fact,  the  college 
of  electors  proceeded  and  chose  these  same  men  who  thereafter  on 
that  title  took  their  seats  in  the  electoral  college  and  voted  and  are 
to  be  counted  or  disparaged  on  that  showing,  to  wit,  the  entire  show 
ing  of  this  certificate  opened  by  the  President  of  the  Senate. 

Beyond  th.it  there  is  not  in  this  argument  about  evidence  any  par 
ticular  circumstance  that  I  care  to  call  attention  to  in  regard  to  that 
first  certificate ;  nor  do  I  need  certainly  to  make  any  addition  to  the 
observations  already  made  to  discuss  the  second  certificate  at  all. 

What  proof,  then,  is  offered  ?  I  now  proceed  to  discuss  it  as  mat 
ter  of  proof  as  to  its  application  and  where  its  effect,  if  at  all,  is  to 
be  expected. 

In  the  first  place,  the  offers  of  proof  do  not  seek,  any  of  them,  to 
disparage  the  truth  of  that  certificate ;  I  mean  its  truth  as  made  up 
of  the  elements  of  the  governor's  certification  of  the  fact  in  the  State's 
action  where  ho  is  to  certify,  nor  any  impeachment  of  the  transaction 
which  by  the  certificate  is  shown  to  have  taken  place  in  the  election. 
No  proof  offered  touches  that  space  in  the  transaction  or  questions 
the  governor's  right  to  certify,  his  right  by  being  governor  to  certify, 
or  that  the  fact  in  the  culminating  and  recorded  result  of  the  election 
in  the  State  comports  with  the  fact  that  he  did  so,  nor  on  the  point 
that  Brewster  and  Levissee  came  into  the  electoral  college  on  the 
transaction  preserved  in  the  minutes  of  the  electoral  college  as  pre 
sented  here.  If  we  look  at  offers  of  proof  we  see  that  at  once.  So  far 
from  introducing,  therefore,  any  element  of  proof  that  is  to  separate 
the  governor's  certificate  from  .the  thing  certified,  or  that  is  to  dis 
parage  the  governor's  right  under  the  Constitution  of  the  United 
States,  these  offers  of  proof  expressly  concede  that  condition  of 
things,  and  plant  themselves  wholly  upon  something  antecedent  in 
the  State's  transaction  to  this  action  of  the  governor,  and  which  is 
the  occasion  of  this  action  of  the  governor,  to  wit,  the  action  in  the 
State  which  produces  the  recorded  result  on  which  the  governor 
must  certify. 

In  the  first  place,  we  are  saved  any  question,  and  I  think  we  might 
have  been  saved  any  argument,  about  Governor  Kellogg's  being  a  do 
facto  governor,  filling  the  office  and  performing  its  duties,  for  they 
offer  under  their  first  head  to  prove  "  that  said  Kellogg  was  governor 
de  facto  of  said  State  during  the  months  of  November  and  December, 
A.  D.  1876."  Then,  when  you  come  to  other  offers  concerning  the  dis 
qualification  of  Levissee  and  of  Brewster,  found  on  the  seventeenth 
page,  you  will  observe  that  there  is  not  the  least  proposition  that  on 
the  6th  day  of  December,  when  these  two  men  came  into  the  office 
of  elector  by  the  choice  of  the  electoral  college  filling  the  vacancies, 
they  were  under  any  disqualification  whatever.  The  proposition  is — 
I  read  now  from  what  is  called  the  fourth  proposition — 

That  on  the  7th  day  of  November,  A.  D.  1876,  A.  B.  Loviseo,  who  was  one  of  the 
pretended  college  of  electors  of  the  State  of  Louisiana,  *  *  *  was  at  the  time 
of  such  election  a  court  commissioner  of  the  circuit  court  of  the  United  States  for 
the  district  of  Louisiana. 

-  And  for  Brewster  in  the  same  way.    The  offer  of  proof,  then,  falls 


ELECTORAL  COMMISSION. 


105 


entirely  short  of  disparaging  their  capacity  to  receive  an  election  on 
the  Gth  day  of  December,  and  the  proof  does  not  otter  to  contradict 
the  transaction  by  which  they  came  in  through  the  vote  of  the  elect 
oral  college  as  displayed  in  the  certificate. 

Now,  in  regard  to  the  substantive  matters  of  proof,  so  far  from  be 
ing  obliged  to  rest  upon  the  proposition  that  there  is  no  offer  to  in 
tervene  with  proof  between  the  recorded  result  of  the  election  and 
the  governor's  certificate  to  that  result,  as  producing  these  electors 
and  no  others,  the  offers  of  proof  are  affirmative  in  their  propositions 
that  that  state  of  facts  does  exist,  and  is  part  of  the  things  that  they 
are  able  and  ready  to  prove.  I  ask  attention  to  this  principal  offer 
of  proof,  which  is  I  suppose  the  one  on  page  13,  the  last  paragraph 
but  one  on  the  page. 

And  that  said  returning  board,  in  further  pursuance  and  execution  of  said  un 
lawful  combination  and  conspiracy,  knowingly,  willfully,  falsely,  and  fraudulently 
did  make  a  certificate  and  return  to  the  secretary  of  state  that  said  Kellogg,  Burch, 
Joseph,  Sheldon,  Marks,  Leviasee,  Brewster,  and  Jon'rion  had  received  majorities 
of  all  the  legal  votes  cast  at  said  election  of  November  7,  1870,  for  presidential  clect- 


dential  electors  of  said  State. 

And  that  the  said  returning  board,  in  making  said  statement,  certificate,  and  re 
turn  to  the  secretary  of  state,  were  not  deceived  nor  mistaken  in  the  premises,  but 
knowingly,  willfully,  and  fraudulently  made  what  they  well  knew  when  they  made 
it  was  a  false  and  fraudulent  statement,  certificate,  aiid  return  ;  and  that  the  said 
false  and  fraudulent  statement,  certificate,  and  return,  made  by  said  returning 
board  to  the  secretary  of  state  in  that  behalf,  was  made  by  the  members  of  said  re 
turning  board  in  pursuance  and  execution  of,  and  only  in  pursuance  and  execution 
of,  said  unlawful  combination  and  conspiracy. 

We  have,  then,  in  the  offers  of  proof  a  recognition  of  the  fact  that 
the  governor's  certificate  in  No.  1  is  by  the  acting  governor  of  the 
State ;  that  it  is  of  a  fact  which  has  been  deliberately  produced  and 
made  of  record  in  the  proper  office  of  that  State ;  that  by  the  authority 
intrusted  with  that  final  act  of  canvass  and  certification  these  elect 
ors  did  receive  a  majority  of  the  legal  votes  in  the  State  of  Louisiana; 
1  bat  that  was  done  mala  fide  and  fraudulently.  It  was  then  done. 
The  act  was  consummated.  You  are  relieved,  therefore,  from  any  dis 
turbance  of  this  definite  and  limited  proposition  of  whether  it  is  com 
petent  for  the  two  Houses  of  Congress  to  penetrate  the  action  of  the 
State  and  determine,  first,  whether  it  conforms  to  the  real  facts  of  the 
elect  ion  as  deducible  through  successive  steps  from  the  deposit  of  the 
votes  in  the  ballot-box  ;  and  secondly,  whether,  though  conforming 
to  legal  authority,  it  has  been  a  corrupt,  mala  fide  transact ion. 

It  is  necessary  for  us  then,  before  we  can  approach  definitely  the 
consideration  of  whether  any  of  this  proof  can  be  ottered,  to  under 
stand  at  least  what  the  laws  of  Louisiana  are;  not  that  it  will  follow 
that  we  have  any  right  here  to  consider  the  conformity  of  the  action 
of  the  canvassers  or  any  of  the  subordinate  functionaries  in  the  elec 
tion  or  of  the  voters  themselves  to  that  law,  but  that  we  may  see  at 
least  upon  what  state  of  statutory  enactments  these  objectors  seek  to 
base  their  question  of  the  action  had  in  these  subordinate  depart 
ments  of  the  transaction. 

I  confeip  to  an  inability  to  understand  that  there  should  really 
exist  any  confusion  on  this  subject  as  to  what  the  statutory  enact 
ments  in  force — I  mean  on  their  face — were.  This  election,  as  it  took 
place  on  the  7th  of  November  in  the  primary  deposit  of  the  votes, 
was  concluded  later  in  the  year  by  the  final  result  of  the  canvass 
certified  and  recorded.  Some  confusion,  I  am  afraid,  has  been  made 
out  of  the  attempt  to  shorten  a  little  the  reprint,  so  useful  in  all 
particulars,  made' under  the  direction  of  the  Commission.  I  have  be 
fore  me  the  session  laws  of  1868.  In  the  acts  of  that  session  are  found 
two  independent  acts  on  independent  subjects,  both  of  which  were 
in  force  until  either  or  both  of  them  were  repealed.  They  were  not 
inconsistent ;  and  they  were  not  in  pari  materia,  unless  so  far  as  that 
some  portion  of  an  enactment  that  might  have  been  included  in  a 
general  law,  and  was  not,  was  included  in  the  special  or  particular 
law  to  which  I  shall  call  attention.  The  first  of  these  acts  is  found 
at  page  218  of  the  session  laws  and  is  numbered  164.  Its  title  is 
"  relative  to  elections  in  the  State  of  Louisiana  and  to  enforce  article 
103  of  the  constitution  of  the  State." 

Mr.  Commissioner  THURMAN.  Where  is  that  in  this  pamphlet 
which  has  been  printed  for  us  ? 

Mr.  EVARTS.  I  do  not  think  it  is  there.  Subsequent  laws  that 
are  supposed  to  have  taken  its  place  have  been  printed,  but  this  has 
not  been  printed  at  all.  A  portion  of  the  revised  statutes  is  printed, 
and  somebody  has  put  at  the  top  of  it  "laws  of  1868."  It  is  not  a 
print  of  any  part  of  the  law  of  1868.  It  is  a  reproduction  of  certain 
sections  of  the  revised  statutes  which  were  passed  in  1870. 

Mr.  Commissioner  ABBOTT.  It  was  stated  to  us  that  this  revision 
and  the  law  of  1868  were  precisely  the  same. 

Mr.  EVARTS.  I  will  proceed  with  my  argument,  if  you  please,  be 
cause  my  object  is  to  show  exactly  how  the  thing  does  run.  That 
law  printed  on  that  page  is  not  any  part  of  the  law  that  I  have  asked 
your  attention  to  thus  far ;  it  is  not  a  reproduction  of  that ;  it  has  noth 
ing  to  do  with  it.  There  is  another  law  of  1868. 

Mr.  Commissioner  BRADLEY.    That  law  is  a  general  election  law. 

Mr.  EVARTS.  A  general  election  law  to  enforce  article  103  of  the 
constitution.  On  page  245,  No.  193,  is  another  law,  of  which  I 
will  read  the  title,  to  wit:  "  Relative  to  presidential  electors."  That 
is  a  short  act.  It  contains  in  its  first  section  an  attribution  of  the 
conduct  of  their  election  to  the  provisions  of  the  general  election  law  : 

And  such  election  shall  be  held  and  conducted  in  the  manner  and  form  provided 
by  law  for  general  State  elections. 


Mr.  Commissioner  BRADLEY.  Mr.  Evarts,  while  you  are  on  that, 
I  wish  to  ask  a  question  for  information.  I  have  tried  to  get  hold  of 
those  acts  of  1868  for  about  twenty -four  hours,  but  have  been  unable 
to  do  so.  Does  that  first  section  commence  in  this  way :  "  In  every 
year  in  which,"  &c.? 

Mr.  EVARTS.    It  does. 

Mr.  Commissioner  BRADLEY.  And  the  thirty-fifth  section  of  the 
act  of  1868  is  in  the  same  terms  exactly.  These  two  are  copies  of  one 
another,  are  they  not  ?  I  wish  to  ascertain  that  fact. 

Mr.  EVARTS.   Iwilllook.   The  thirty-fifth  section  of  the  act  of  1868? 

Mr.  Commissioner  BRADLEY.    Yes. 

Mr.  EVARTS.  No ;  that  comes  into  the  act  of  1870  if  at  all.  There 
is  nothing  of  the  kind  in  the  act  of  1868.  There  is  section  32  of  the 
act  of  1868,  which  I  will  read.  I  will  read  not  section  35,  but  section 
32,  which  relates  to  the  subject. 

Mr.  Commissioner  EDMUNDS.  Which  of  these  two  acts  do  you 
read  from  ? 

Mr.  EVARTS.  The  general  election  law  of  1868,  which  begins  on 
page  218  of  the  session  laws  of  that  year. 

Mr.  Commissioner  THURMAN.    What  is  the  date  of  it  ? 

Mr.  EVARTS.  It  is  the  19th  of  October,  1868.  This  is  section  32, 
which  is  probably  the  section  to  which  Mr.  Justice  BUADLEY  had 
reference. 

That  in  every  year  in  which  an  election  shall  be  held  for  electors  of  President 
and  "Vice-President  of  the  United  States,  such  election  shall  be  held  on  the  Tues 
day  next  after  the  first  Monday  in  the  month  of  November,  in  accordance  with  the 
act  of  the  Congress  of  the  United  States  approved  January  23,  1845,  and  such  elec 
tion  shall  be  held  and  conducted  in  the  manner  and  form  provided  by  law  for  gen 
eral  State  elections. 

Which  is,  I  believe,  an  accurate  statement. 

Mr.  Commissioner  BRADLEY.    An  exact  copy. 

Mr.  EVARTS.  It  is  identical  with  the  first  section  of  the  presiden 
tial-elector  statute.  Now,  in  this  presidential-electors  act  there  are 
two  provisions  which  do  bear  on  the  questions  which  we  are  to  dis 
cuss  as  to  the  proper  method  of  carrying  on,  certifying,  and  canvass 
ing  the  election  held  last  November.  There  is  no  doubt  about  that, 
if  they  were  in  force,  and  I  will  ask  attention  to  them.  The  first  is 
section  4  on  page  245  of  the  session  laws  of  1868 : 

Immediately  after  the  receipt  of  a  return  from  each  parish,  or  on  the  fourth  Mon 
day  of  November,  if  the  returns  should  not  sooner  arrive,  the  governor,  iu  the  pres 
ence  of  the  secretary  of  state,  the  attorney-general,  a  district  judge  of  the  district 
in  which  the  seat  of  government  may  bo  established,  or  any  two  of  them,  shall 
examine  the  returns  and  ascertain  therefrom  the  seven  persons  who  have  been  duly 
elected  electors. 

Then  there  are  certain  administrative  provisions  which  are  not  im 
portant.  Then  section  8  on  the  same  page. 

Mr.  Commissioner  BRADLEY.    It  speaks  of  "  seven  persons  "  there. 

Mr.  EVARTS.  That  word  is  there  ;  the  State  then  was  entitled  to 
seven  electors.  The  eighth  section  is  : 

If  any  one  or  more  of  the  electors  chosen  by  the  people  shall  fail  from  any  cause 
whatever  to  attend  at  the  appointed  place  at  the  hour  of  four  p.  m.  of  the  day  pro 
scribed  for  their  meeting,  it  shall  be  the  duty  of  the  other  electors  immediately  to 
proceed  to  ballot  to  supply  such  vacancy  or  vacancies. 

Our  learned  and  ingenious  friend,  Mr.  Carpenter,  brought  your  hon 
ors  to  this  result  from  his  discussion,  that  it  was  wholly  immaterial 
to  the  practical  result  in  this  case  whether  you  hold  that  the  law  was 
repealed  or  whether  you  hold  that  it  was  in  force ;  he  contending 
that,  if  it  was  repealed  so -'as  to  carry  down  the  canvassing  section, 
and  therefore  make  the  canvass  proper  by  this  canvassing  board — I 
mean  in  respect  to  its  authority — then  section  8,  being  carried  down, 
the  power  to  fill  vacancies  did  not  exist,  and  two  vacancies  were  there 
fore  left  in  the  college  of  electors,  which,  as  he  said,  would  be  enough 
for  his  purpose,  and  which  is  true  ;  two  vacancies  are  enough,  per 
haps  one.  But  we  are  under  no  such  alternative  as  that.  By  the 
subsequent  laws,  the  canvassing  section  was  repealed,  and  by  no 
subsequent  laws  was  the  rest  of  the  electoral  act  affected.  That  is  a 
proposition  which  at  once  liberates  us  and  this  Commission  from  any 
confusion  or  from  any  resort  to  either  of  the  horns  of  the  dilemma. 

On  what  does  our  proposition  rest  ? — for  it  needs  but  to  be  stated 
to  be  understood,  and  the  laws  need  but  to  be  pointed  out  to  carry 
the  evidence  of  what  the  existing  state  of  law  was  in  Louisiana  in 
1876.  There  came  about  in  1870  a  revision  of  the  statntesjpf  the  State 
of  Louisiana,  not  a  repeal,  not  a  re-enactment,  but  a  revision  of  the 
laws  that  were  or  were  understood  to  be  in  force,  in  regard  to  which 
ihefiat  of  the  Legislature  was  to  be  impressed  upon  them  that  they 
were  the  laws  in  force,  a  transaction  entirely  similar  to  that  which 
took  place  in  Congress  in  the  production  of  the  Revised  Statutes  of 
the  United  States,  under  which  we  now  are.  In  this  revision  which 
I  read  from,  a  book  published  in  1876 

Mr.  Commissioner  BRADLEY.    I  have  the  original. 

Mr.  EVARTS.  We  shall  be  greatly  obliged  to  you  if  we  can  get 
the  pages  from  that.  My  friend  who  provided  this  book  could  not 
find  the  other  in  the  Library ;  we  were  obliged  to  resort  to  this ;  but 
the  sections,  as  I  understand,  are  the  same.  I  shall  bo  very  glad  to 
refer  to  that  volume  instead  of  this  for  those  two  laws,  and  I  will 
give  the  citations  as  they  shall  be  determined ;  but  for  the  purpose 
of  my  present  argument,  without  giving  pages,  I  can  now  say  how 
the  matter  stood  on  these  revised  statutes.  In  the  first  place,  there 
was  a  statute  entitled  "  elections,"  and  it  was,  we  will  assume,  the 
statute  of  1868.  So  far  as  I  know,  there  is  nothing  to  be  said  on  this 
subject. 

Mr.  Commissioner  EDMUNDS.  You  mean  by  that,  that  there  is  a 
head  in  the  revised  statutes  "elections?" 


1 06 


ELECTORAL  COMMISSION". 


Mr.  EVARTS.  A  head  in  the  revised  statutes  called  "Elections." 
I  will  now  give  the  page,  to  avoid  confusion,  that  is  found  in  this 
edit  ion  of  tho  revised  statutes  of  Louisiana  printed  in  the  year  they 
were  passed  ;  in  1870.  It  is  page  272,  and  it  is  headed  in  tho  margin 
by  these  figures,  "  18(58,  218,"  which  means  this  law  that  I  have  read. 

Mr.  Commissioner  GARF1ELD.  The  same  reference  that  you  made 
to  tho  session  acts  of  1868. 

Mr.  EVARTS.  The  same  reference.  Then  there  comes,  after  ex 
hausting,  I  believe,  tho  general  provisions  about  elections,  grouped 
under  this  general  title  of  "Elections,"  a  statute  concerning  contested 
elections,  which  in  the  same  manner  is  referred  to  as  a  statute  of  1865, 
page  408. 

Mr.  Commissioner  EDMUNDS.    Is  that  in  the  same  title  ? 

Mr.  EVARTS.     The  same  title. 

Mr.  Commissioner  BRADLEY.  Under  tho  same  title,  but  at  tho 
end. 

Mr.  EVARTS.  Exhausting  tho  general  election  law,  you  then  come 
into  an  independent  subject,  and  that  is  "  Contested  Elections,"  and 
there  is  reprinted  another  law  not  material  for  us  to  consider,  but  it 
is  reprinted  and  referred  to  as  a  law  already  in  existence. 

Mr.  Commissioner  THURMAN.  Are  you  reading  from  tho  revised 
statutes  of  1870  f 

Mr.  EVARTS.  I  am ;  and  the  edition  of  1870,  which  is  the  proper 
one  to  refer  to. 

Mr.  Commissioner  THURMAN.    Was  that  passed  as  one  act  ? 

Mr.  EVARTS.  Passed  as  one  act.  Then  we  have  another  title  in 
these  revised  statutes  separated  by  one  hundred  pages,  and  indeed 
the  arrangement  is,  I  think,  alphabetical,  and  the  title  of  this  section 
of  the  revised  statutes  is  "  Presidential  Electors."  That  is  at  page 
T>.r>0.  It  begins  by  reciting  the  acts  of  Congress,  and  then  it  proceeds 
in  ten  sections  numbered  from  2823  to  2832,  which  contain  the  elec 
tion  law,  and  the  heading  in  the  margin  of  this  is  "  1868,  245."  Nino 
of  the  sections,  to  2831  inclusive,  are  embraced  in  that  notation,  and 
in  fact  in  the  act  of  18(58  section  2832  is  noted  as  a  section  proceeding 
from  the  act  of  1855,  481,  and  is  simply,  "  when  a  new  parish  shall 
be  established,  it  shall  form  a  part  of  the  district  to  which  it  be 
longed  previous  to  its  change  of  organization." 

Those  two  laws  being  for  our  purposes  as  the  two  laws  of  1868, 
were  in  force  when  these  revised  statutes  came  into  operation,  un 
less  by  actual  repeal,  or  by  the  methods  of  legislation  which  operate 
repeal,  before  these  revised  statutes  went  into  operation  a  repeal  of 
one  or  the  other  of  them  in  some  part  had  taken  place.  These  were 
passed  on  the  14th  day  of  March,  1870  ;  and  on  the  16th  day  of  March, 
1870,  a  law  was  passed  which  was  printed  and  is  to  be  found  in  the 
first  edition  of  this  compilation  which  is  without  a  cover,  and  I  will 
refer  to  the  act  of  1870  itself  in  pursuance  of  my  previous  intention. 

Mr.  Commissioner  EDMUNDS.  Is  there  any  law  or  provision  of 
tho  constitution  in  Louisiana  which  provides  generally  at  what  time 
acts  passed  at  a  session  shall  take  effect  ? 

Mr.  EVARTS.     I  do  not  know  whether  there  is  or  not. 

Mr.  Commissioner  BRADLEY.  These  acts  that  we  refer  to  all  de 
clare  the  time  when  they  shall  take  effect. 

Mr.  EVARTS.  I  do  not  understand  that  there  is  any  general  pro 
vision,  and  as  a  matter  of  fact  the  general  declaration  of  the  acts  is 


the  title  of  this  act : 

To  regulate  tho  conduct  and  to  maintain  the  freedom  and  purity  of  election  ;  to 
prescribe  the  mode  of  making  and  designate  the  officers  who  shall  make  tho  returns 
thereof;  to  prevent  fraud,  violence,  intimidation,  &c.;  limiting  tho  powers  and 
duties  of  sheriffs  ;  and  to  enforce  article  103  of  tho  constitution. 

The  title  of  this  act  is  the  same  as  that  of  the  election  act  of  1868  in 
its  general  purpose  to  regulate  elections  and  enforce  article  103  of  the 
constitution.  This  act  provides,  at  section  54 : 

That  the  governor,  tho  lieutenant-governor,  the  secretary  of  state,  and  ,Tohn 
J.yuch  and  1.  C.  Anderson,  or  a  majority  of  them,  shall  bo  the  returning  officers 
tor  all  elections  in  this  State. 

There  is  no  other  description  and  no  limitation  ;  they  are  "the  re 
turning  officers  for  all  elections  in  tins  State;"  and  there  is  at  section 
85,  the  final  section  of  the  act,  this  repealing  clause  : 

That  all  laws  or  parts  of  laws  contrary  to  the  provisions  of  this  act,  and  all  laws 
relating  to  the  same  subject-matter,  are  hereby  repealed;  and  this  act  shall  take 
etiect  trorn  and  after  its  passage. 

What  went  down  under  that  repeal  ?  In  the  first  place,  upon  gen 
eral  principles,  all  of  the  revised  statutes  that  was  on  the  title  of 
Elections  and  enforcing  this  article  of  the  constitution,  No.  103, 
and  all  parts  of  other  laws  that  were  within  the  purview  of  the  con 
duct  of  elections,  any  election  held  in  that  State,  and  no  other  parts 
ot  such  laws,  were  repealed  by  that  section.  You  have,  then,  in  the 
general  start  of  the  first  section  of  tho  act,  a  provision  "  that  all 
elections  tor  State,  parish,  and  judicial  officers,  members  of  the  Gen 
eral  Assembly,  and  for  members  of  Congress,  shall  be  held  on  the 
rat  Monday  in  November ;  and  said  elections  shall  be  styled  the  gen 
eral  elections.  They  shall  be  held  in  the  manner  and  form,  and  sub- 
the  regulations  hereinafter  prescribed,  and  in  no  other  " 

Ihen  the  provisions  go  on.  Section  35  of  this  act,  which'  is  the 
number  which  was  in  Mr.  Justice  BRADLEY'S  mind,  is  the  equivalent 
of  section  32  in  the  general  election  act  of  1868,  and  is  identical  with 
section  1  of  the  electoral  act  of  1868.  It  is  reproduced  here  as  sec 


tion  35 ;  so  that  we  have  a  provision  that  all  general  elections  so 
called  shall  take  place  on  the  first  Monday  of  November;  that  an 
election  for  elector  shall  take  place  on  the  first  Tuesday  after  tho 
first  Monday  in  November,  according  to  the  provision  of  the  act  of 
Congress,  and  then,  in  a  section  coming  after  the  description  of  gen 
eral  elections,  and  after  the  section  that  has  relation  to  presidential 
elections,  you  have  the  fifty-fourth  section,  which  provides  that  tho 
canvassing  board  there  provided  "  shall  be  the  returning  officers,"  not 
for  all  general  elections,  but  "  for  all  elections  held  in  this  State," 
covering  by  necessary  statutory  construction  the  elections  that  had 
been  mentioned  preceding,  some  of  which  were  called  elections  of 
State  officers,  members  of  Congress,  &c.,  and  called  general  elections, 
and  one  which  was  called  a  presidential  election. 

The  election  of  1872  was  held  under  that  law.  Did  anybody  in  the 
State  of  Louisiana  conceive  that  the  governor  was  to  canvass  ?  Some 
question  was  raised  about  whether  the  act  of  1872,  which  was  passed 
on  the  20th  of  November,  providing  another  returning  board,  was  in 
operation  ;  but  tho  courts  of  tho  State,  in  the  authorities  that  have 
been  proposed  for  your  honors'  consideration  by  my  learned  asso 
ciates,  disposed  of  this  question  as  to  who  were  the  returning  board 
and  the  canvassing  board,  being  one  and  the  same  thing,  on  Novem 
ber,  1872,  prior  to  the  20th  of  November  of  that  year.  Therefore  the 
whole  operation  of  this  act  of  1870,  in  repeal  of  this  or  that  portion 
of  the  independent  acts — the  general-election  act -and  the  presiden 
tial-electors'  act — was  not  an  act  concerning  their  election,  but  con 
cerning  their  discharge  of  their  duties ;  giving  them,  nothing  but  the 
State  apparatus,  unvaried  except  in  a  canvassing  board.  Now  what 
the  canvassing  board  of  1868  for  general  elections  was  I  have  not 
stopped  to  inquire ;  whether  it  was  the  same  governor  or  not,  it  is  not 
material  here.  Now  comes  the  act  of  1872,  which  is  reproduced. 

Mr.  Commissioner  BRADLEY.  Right  here  is  a  matter  which  I  wish 
to  understand.  Tho  digest  of  the  statutes,  made  immediately  after 
the  revision  and  published  in  January,  1871,  contains  these  two  titles 
which  the  revision  does,  the  title  "Elections"  and  the  title  "Presi 
dential  Electors."  The  digest  was  made  by  John  Ray,  under  the  di 
rection  of  the  committee  on  revision;  and  in  that  digest,  under  tho 
head  of  "Elections,"  he  inserts  tho  act  of  1870  instead  of  the  act  of 
1868,  and  under  the  head  of  "Presidential  Electors"  inserts  tho  same 
title  that  the  revision  contained,  with  the  exception  that  the  section 
establishing  the  returning  board  replaces  the  original  canvass.  This 
seems  to  indicate  the  opinion  of  the  profession  at  that  time  as  to  the 
state  of  the  law.  What  effect  it  would  have  I  do  not  know. 

Mr.  EVARTS.  In  other  words,  what  we  now  contend  for,  that  the 
section  which  gave  a  special  canvassing  hot  'd  for  presidential  elect 
ors  was  repealed  by  the  act  of  1870,  and  the  rest  of  the  statute,  and 
which  had  nothing  to  do  with  their  election  but  only  with  their  con 
duct  as  electors  after  they  were  elected,  was  left  standing ;  and  Mr. 
Justice  BRADLEY  enables  me  to  refer  to  a  digest  of  the  statutes  of 
Louisiana.  In  volume  2  of  that  digest,  at  page  356,  is  found  the  elect 
oral  law,  and  it  is  attributed  under  its  various  sections  to  the  acts 
on  which  it  is  supposed  to  rest.  The  first  section  is  attrilAited  to  the 
act  of  1870,  page  145.  This  is  substantially  the  same  section  as  is 
found  in  the  act  of  1868.  Then  the  second  section  is  attributed  to  the 
act  of  1868,  page  245  ;  tho  third  the  same.  The  fourth,  which  is  the 
provision  of  a  returning  board,  takes  the  section  that  makes  tho  gov 
ernor,  the  lieutenant-governor,  the  secretary  of  state,  John  Lynch, 
and  T.  C.  Anderson  tho  returning  board,  and  attributes  that  to  the 
act  of  1870,  page  145.  And  then  it  goes  on,  resuming  at  the  fifth  sec 
tion'  its  attribution  to  the  act  of  1868,  page  245,  and  in  the  sixth 
section  is  reproduced  the  provision  about  electors  filling  their  vacan 
cies.  This  act  is  found  on  page  355  and  page  358  of  the  second  vol 
ume  of  this  digest,  published  under  tho  authority  of  the  State  in  1870. 

Mr.  Commissioner  BAYARD.  Does  it  contain  no  memorandum  of 
tho  date  when  it  was  passed  ? 

Mr.  EVARTS.  I  have  stated  that  these  sections  which  are  thus 
digested  are  each  referred  to  their  appropriate  originating  statute. 

Mr.  Commissioner  BRADLEY.  Here  is  the  act  under  which  the 
digest  was  made,  Mr.  Evarts,  showing  that  it  had  a  quasi  authority. 

Mr.  EVARTS.  It  is  very  apparent  that  this  is  no  new  construction 
that  we  are  putting  upon  the  force  of  the  repealing  act.  It  is  the 
published  construction,  in  the  authorized  publication  of  the  statutes 
in  the  form  of  a  digest,  followed  by  the  courts  and  accepted  by  the 
profession.  Tho  novelty  is  in  the  stress  that  now  here  for  the  first 
time  seeks  to  produce  a  collapse  of  statutory  law  in  order  to  destroy 
an  election.  Did  any  of  those  eminent  lawyers  that  attended  in  New 
Orleans  through  the  month  of  November  suggest  to  Governor  Kellogg 
to  canvass  these  votes  for  presidential  electors  ?  And  now  the  vice, 
the  fault,  the  irremediable  wound  of  this  election  is  that  Governor 
Kellogg  did  not  canvass  them. 

The  act  of  1872  takes  up  this  whole  subject  and  substitutes  itself 
for  the  act  of  1870  and  repeals  all  existing  regulations  that  properly 
are  in  the  very  matter  of  conduct  and  regulation  of  elections  in  gen 
eral,  and  all  special  provisions  found  in  any  other  act  that  are  at 
variance  with  the  imposition  of  its  form,  its  methods,  and  its  agents 
on  all  elections  held  in  tho  State.  But  the  act  of  1870  had  already 
excluded  the  section  of  the  electoral  law  that  related  to  canvass,  and 
excluded  that  alone,  and  left  standing  the  clause  that  relates  to  the 
conduct  of  tho  electoral  college,  among  other  things,  in  filling  vacan 
cies. 

Now,  I  have  satisfied  your  honors  that  not  only  was  it  wholly  ira 


ELECTORAL  COMMISSION. 


107 


material  which  of  Mr.  Carpenter's  views  you  adopted,  but  it  was  im 
material  that  you  adopted  them  both,  for  the  subsequent  legislation 
had  left  the  matter  in  this  shape,  that  the  canvassing  board  for  all 
elections  had  been  applied  to  presidential  elections,  and  the  conduct 
of  the  electoral  college,  after  it  was  elected,  in  its  transaction  under 
the  laws  of  the  State  and  of  the  United  States,  was  left  wholly  un 
touched,  as  it  well  might  be.  What  change  could  you  have  made, 
what  change  was  needed  ?  That  is  not  the  point ;  but  the  point  is 
that  the  Legislature  had  suppressed  presidential  elections  by  having 
no  law  under  which  they  could  be  conducted.  Well,  if  there  is  any 
State  that  in  the  election  of  1872  or  in  anticipation  of  the  election  of 
1876  has  had  the  attention  of  all  its  citizens,  all  its  lawyers,  all  its 
judges,  all  its  politicians,  all  its  honest  men  attracted  to  it,  it  is  the 
State  of  Louisiana ;  and  they  all  thought  that  they  could  elect  presi 
dential  electors,  and  one  political  party  was  perfectly  convinced  that 
it  had  and  the  other  political  party  was  perfectly  convinced  that  it 
had,  and  the  only  question  was  which  of  the  two  sets  produced  by 
this  birth  was  the  genuine  child. 

Mr.  Commissioner  FRELINGHUYSEN.  Mr.  Evarts,  did  you  refer 
to  the  act  authorizing  the  revision  ? 

Mr.  EVARTS.  I  beg  pardon.  That  is  in  the  first  volume  of  the 
digest.  It  is  an  act  passed  on  the  16th  of  March,  1870,  the  very  day 
this  act  was  passed : 

That  John  Ray  be,  and  is  hereby,  appointed  and  authorized  to  compile  a  digest  of 
the  statutes  of  the  State  of  a  general  character  from  the  acts  passed  at  the  present 
session  of  the  General  Assembly,  including  the  act  of  revision,  and  to  superintend 
the  printing,  and  that  such,  digests  and  codes  bo  stereotyped  and  printed  as  re 
quired,  &c. 

Mr.  Commissioner  MORTON.  Was  there  a  provision  requiring  that 
digest  to  be  subsequently  submitted  to  the  Legislature  before  it  wont 
into  force  ? 

Mr.  EVARTS.    I  think  not. 

Mr.  Commissioner  BRADLEY.    There  was  not. 

Mr.  EVARTS.  I  cannot  say  without  looking  at  the  act,  because 
this  is  only  one  section  of  the  act  that  answers  the  purpose  of  adver 
tising  the  book.  • 

Mr.  Commissioner  BRADLEY.  It  was  submitted  to  the  committee 
of  revision.  The  act  required  that;  and  that  was  all. 

Mr.  EVARTS.  It  was  to  be  submitted  to  the  committee  of  revision, 
Mr.  Justice  BRADLEY  suggests,  of  that  session  which  conducted  this 
whole  matter.  Here  is  a  little  act  which  is  at  page  80  of  the  session 
laws  of  1870,  "  An  act  giving  precedence  in  authority  to  all  the  other 
acts  and  joint  resolutions  passed  by  the  General  Assembly  at  this  ses 
sion  over  the  acts  known  as '  the  revision  of  the  statutes  and  of  the  civil 
code  and  code  of  practice,'  when  there  exists  any  conflict  in  the  pro 
visions  of  said  acts  and  revision." 

I  think  nothing  could  be  made  clearer  than  that.  We  have  then 
the  proposition  that  our  act  of  1870  was  passed  two  days  after  the 
revision — enough  of  itself  to  amend  it.  They  did  not  pass  an  un- 
amendable  revision.  They  passed  a  revision  that  when  it  came  into 
force  had  all  the  dilapidation  which  has  been  accomplished  in  its 
frame  by  all  the  legislation  of  that  session  of  1870.  Such  provisions 
are  necessary.  Something  similar  to  that  was  the  arrangement  in 
which  your  recent  great  work  of  revision  was  carried  on. 

This  law,  then,  as  to  what  its  text  is,  is  understood :  Whatever 
there  is  in  the  election  law  of  Louisiana  that  governs,  gives  authority 
in,  prescribes  methods  of,  the  election  of  others  in  that  State,  applies 
to  the  presidential  electors'  elections,  and  nothing  that  reaches  the 
conduct  of  the  electors  after  their  election  ia  different  from  the  act 
as  it  stood  in  1868. 

In  the  act  of  1872,  which  governed  of  course  the  election  of  1876,  there 
are  provisions,  mainly  of  sections  3  and  26,  which  include  the  powers, 
and  prescribe  the  methods  of  their  execution,  accorded  to  this  return 
ing  board  ;  and  those  powers  were  exercisable  according  to  the  law  of 
Louisiana  and  exercisable  in  reference  to  the  election  of  electors  just 
as  well  as  in  regard  to  any  other  officers  of  the  State  ;  and  in  regard 
to  their  exercise  in  respect  to  the  election  of  presidential  electors  the 
Government  of  the  United  States  had  no  more  power  and  authority 
than  it  had  in  regard  to  any  other  election  in  that  State.  Why 
should  it  ?  It  would  have  been  very  easy  to  have  inserted  in  the  Con 
stitution  of  the  United  States  a  provision  which,  while  it  fixed  in  the 
frame  of  the  government  the  power  of  election  in  the  States,  had 
made  Congress  the  judges  of  the  elections,  of  the  returns,  and  of  the 
certificates  of  electors.  That  might  have  been  done ;  but  if  it  had 
been  done,  all  that  had  been  done  by  the  convention  up  to  that  time 
would  have  been  annulled,  for  the  independence  of  the  State's  trans 
action  would  have  been  subjected  to  the  political  authority  of  the 
United  States,  ungoverned  by  any  paramount  dominion  over  it ;  and 
our  ancestors  that  would  not  let  the  little  finger  of  Federal  influence 
be  inserted  into  the  State  election  by  having  a  Federal  officer  voted 
for  by  it,  is  now  laying  the  thickness  of  a  hand  on  the  State  election 
by  judging  of  the  election,  the  qualifications,  and  the  returns. 

I  ask  the  eminent  lawyers  who  are  to  stand  by  their  proposition, 
if  there  is  one  particle  of  power  possessed  by  the  Houses  of  Congress 
or  that  was  ever  exercised  by  them  in  the  experience  of  this  Govern 
ment,  in  searching  the  elections,  the  returns,  and  the  qualifications 
of  members  of  Congress,  that  falls  within  the  whole  range  of  this 
proposition  of  proof  ?  Is  it  not  offered  to  you  as  the  measure  and 
the  means  and  the  resort  of  your  inspection  of  the  Louisiana  elec 
tion  of  electors  ?  Could  you  do  anything  more  ?  Where  do  you  get 


the  right  to  do  what  you  do  about  members  of  Congress  ?  You  could 
not  got  it  by  mere  parliamentary  law ;  and  the  framers  of  the  Con 
stitution  put  it  in  that  there  might  be  no  doubt  about  it ;  for  the 
jurisdiction  of  Parliament  to  judge  of  the  qualifications  of  its  mem 
bers  is  a  resident  and  remaining  part  of  its  authority  as  the  great 
court  of  the  realm.  For,  according  to  the  principles  of  the  common 
law,  the  execution  of  a  writ  is  to  be  determined  by  the  court  where 
it  is  returnable;  and  when  the  Crown  issues  its  writ  to  the  burgesses 
and  shires  it  is  returnable  in  Parliament,  and  Parliament  judges  of 
the  return.  But  when  yon  are  making  a  complex  frame  of  govern 
ment  and  distributing  authority  between  the  States  and  the  General 
Government,  you  must  determine  exactly  how  far  the  States  are  to 
have  authority  on  the  subject  of  this  election  of  members  of  Con 
gress  and  how  much  is  to  belong  to  the  Federal  Government.  In 
other  words,  while  the  States  are  allowed  to  provide  for  the  election 
of  Congressmen  and  while  the  suffrage  is  measured  out  by  the  Con 
stitution  to  be  the  same  that  they  accord  to  the  lower  house  of  rep 
resentatives  in  the  States,  yet  there  is  secured  to  Congress  the  power 
of  making  and  altering  those  regulations;  and  this  final  political 
power  acts,  irresponsible  for  the  exercise  of  its  will ;  will  governed 
by  duty,  if  you  please,  but  will  not  controlled  by  any  authority  of 
law.  And  now  it  is  gravely  pretended  here,  not  in  terms — for  the 
effrontery  of  the  proposition  would  affright  the  lawyer  that  made  it ; 
but  on  the  basis  of  that  offer  of  proof  they  ask  you  to  ascribe  to  the 
two  Houses  of  Congress  when  met  to  count  the  vote,  with  the  Presi 
dent  of  the  Senate  in  the  chair,  precisely  the  same  power  in  extent, 
in  measure,  in  uncontrolled  execution,  that  is  attributed  to  the  elec 
tion  of  members  of  Congress. 

Why  did  not  the  wise  framers  of  the  Constitution  say  so  if  they 
meant  that?  And  how  could  they  anticipate  that  the  whole  spirit 
and  purpose  of  excluding  Federal  authority  in  the  choice  and  the 
election  and  the  certification  of  the  choice  of  electors  should  be  per 
verted  into  the  monstrous  claim  that  an  uncontrolled  political  au 
thority  rests  in  the  two  Houses  of  Congress  to  sift  and  sift,  discard, 
discount,  destroy  the  election  and  make  such  men  as  it  chooses,  or 
annul  the  vote  of  a  State  when  it  will  answer  the  purpose,  as  it  will 
here  upon  this  pretension  of  authority  ? 

If  any  further  elucidation  of  my  general  views  is  needed  I  must  re 
spectfully  ask  attention  to  the  reported  arguments  of  Mr.  Matthews 
and  myself  in  the  Florida  case.  . 

I  now  come  to  consider  the  very  matter  of  the  proof  offered.  How 
about  these  Federal  disqualifications  ?  We  talked  about  that  in  the 
Florida  case.  It  so  happened  that  the  proofs  which  were  allowed 
provisionally  did  not  raise  the  question  there  ;  but  our  propositions 
are  unchanged.  In  the  absence  of  congressional  regulation  furnishing 
the  appropriate,  adequate,  seasonable  means  to  purge  the  lists  that 
the  governor  has  certified  on  the  Federal  disqualifications  that  should 
discard  an  elector,  the  two  Houses,  met  in  the  presence  of  the  Presi 
dent  of  the  Senate,  cannot  execute  the  Constitution  ;  and  you  can  do 
no  more.  They  are  elected ;  they  are  acting ;  they  are  certifying,  for 
there  is  nothing  in  that  idea  of  the  subject  at  all  that  a  man  made  in 
eligible  cannot  be  elected.  You  might  as  well  say  that  the  forbid 
den  fruit  could  not  be  eaten  because  it  was  forbidden.  I  ask  attention 
to  an  authority  of  great  weight,  the  supreme  court  of  Pennsylvania, 
where  Gibson,  justice,  gives  the  opinion  before  he  was  chief- justice 
in  11  Sergeant  &  Rawle'a  Reports,  page  411.  I  cannot  detail  the 
particular  circumstances  of  the  case  ;  but  these  observations  are  in 
point  in  that  case  and  are  important  here.  It  is  the  case  of  Baird  vs. 
The  Bank  of  Washington : 

The  hank  was  governed  by  thirteen  directors,  five  of  whom  were  competent  to 
the  business  of  ordinary  discounts,  but  nothing  less  than  a  majority  of  the  whole 
number  constituted  a  quorum  for  transacting  any  other  business.  At  the  meeting 
of  the  llth  of  August,  just  spoken  of,  only  seven  members,  including  George  Baird, 
were  present  when  the  vote  was  taken ;  so  that  if  he  were  not  a  director,  either 
de  facto  or  de  jure,  there  was  at  that  moment  not  a  quorum  present;  and  hence  n 
question  as  to  the  validity  of  his  appointment  is  thought  to  be  material.  As  has 
been  just  said,  to  constitute  a  quorum  competent  to  fill  vacancies  or  transact  any 
other  business  than  that  of  ordinary  discounts  required  a  majority  of  the  whole 
number  of  the  directors ;  and  this  gentleman  was  elected  at  a  meeting  at  which 
only  five  were  present,  so  that  originally  his  election  was  unquestionably  invalid. 
And  this  brings  us  to  the  first  question,  whether  he  is  to  be  considered  as  an  officer 
de  facto,  or  as'an  usurper.  The  judge  who  tried  the  cause  was  of  opinion  that  his 
election  was  not  merely  irregular  as  to  time,  place,  or  notice  of  it,  and  therefore 
voidable,  but  that  it  was  absolutely  void  ;  and  that  he  was  an  unauthorized  agent, 
who  could  do  no  act  to  bind  the  bank ;  in  other  words,  that  he  was  an  usurper. 

In  analogy  to  the  distinction  between  judicial  proceedings  that  are  absolutely  void 
for  want  of  jurisdiction  and  those  that  are  only  voidable  for  irregularity,  there  is 
something  extremely  plausible  in  this  opinion.  Still,  however,  it  will  be  found  that 
the  question  does  not  depend  on  whether  the  appointment  is  void  or  only  voidable, 
or  whether  it  emanated  from  an  authority  which  had  fall  power  to  make  it ;  but 
whether  the  officer  has  come  in  under  color  of  right  orin  open  contempt  of  all  right 
whatever.  (The  King  w?.  Leslie,  Ans.  Rep.,  163,  S.  C.,  2Stra..  190.)  This  distinction 
runs  through  all  the  cases.  Where  an  abbot  or  parson,  inducted  erroneously,  and» 
having  made  a  grant  or  obligation,  is  afterward  deprived  of  his  benefice,  this  shall 
bind ;  but  the  deed  of  one  who  usurps  before  installation  or  induction,  or  who 
enters  and  occupies  in  the  time  of  vacation  without  election  or  presentation,  is  void. 
So,  if  one  occupies  as  abbot  of  his  own  head,  without  installation  or  induction,  his 
deed  shall  not  bind  the  house. 

McEnery  acted  "of  his  own  head  ;  "  doubtless  a  very  good  head,  but 
"of  his  own  head"  and  nothing  else,  and  the  electors  named  on  the 
second  certificate  were  hurried  to  execute  on  the  6th  of  December  au 
office  into  which  they  had  not  been  inducted,  into  which  they  had  not 
been  installed,  did  it  "  of  their  own  head;"  but  they  might  have  been 
prompted.  You  can  put  ideas  into  one's  head ;  nevertheless  it  is  his 
own  head  that  he  acts  upon. 


108 


ELECTORAL  COMMISSION. 


In  (lie  case  :it  bur,  the  court  put  tlio  matter  on  the  ground  tlj.lt  flvo  directors  did 
not  constitute  :i  board  for  any  other  business  than  that  of  ordinary  discounts ;  and 
that,  having  no  right  to  go  into  an  election  at  all,  their  act  could  not  give  color  of 
right.  But  in  Harris  vs.  Jays,  Cro.  Eliz.,  699,  it  was  conceded  that  the  Queen's  au 
ditor  and  .surveyor  had  not  the  right  to  appoint  the  steward  for  the  manor  in  ques 
tion  ;  yet  it  was  resolved  that  a  steward  appointed  by  him  was  an  officer  de  facto 
and  that  his  acts  were  good.  This  is  exactly  in  point.  Tlio  inn  uiry  then  is,  was 
there  the  color  of  an  election  in  Mr.  Bairil's  case  ?  lie  was  elected  by  tlio  very  body 
hi  which  the  right  to  elect  was  vested,  the  only  thing  wanting  to  the  perfect  valid 
ity  of  the  act  being  the  presence  of  two  or  more  electors.  But  the  presence  of 
these  would  not  have  changed  the  board  to  another  and  a  distinct  body  ;  it  would 
still  have  been  thoprosiden  tand  directors  of  the  Bank  of  Washington.  It  is  impos 
sible,  therefore,  to  say  that  Mr.  Baird  usurped  the  office  without  the  semblance  of 
right. 

Now  this  clause  in  the  judge's  opinion  I  ask  particular  attention  to : 

This  principle  of  colorable  election  holds  not  only  in  regard  to  the  right  of  elect 
ing,  but  also  of  being  elected.  A  person  indisputably  ineligible  may  bo  an  officer 
do  facto  by  color  of  election,  (Knight  vs.  The  Corporation  of  Wells,  Lutw.,  508.) 
So,  even  where  the  oliice  was  not  vacant,  but  there  was  an  existing  officer  de  iurc 
at  the  time. 

Perhaps  this  is  the  only  authority  on  this  suhject  that  I  shall  need 
to  add  to  those  that  were  adduced  in  the  argument  on  the  Florida 
case  and  that  have  been  presented  by  my  learned  associate  in  this. 

Now  suppose  that  Lovissee  and  Browster  were  each  of  them  ineli 
gible.  They  are  elected  ;  they  are  inducted  ;  they  are  in  execution 
of  the  office,  and  the  State  ia  not  to  be  stripped  in  an  execution  that 
is  satisfactory  to  itself  by  extraneous  evidence  adduced  at  the  mo 
ment  of  counting  the  votes,  that  a  man  was  ineligible.  Congress 
must  give  that  consequence  by  some  legislation  and  some  mode  of 
determination,  or  it  cannot  arise. 

But  here  these  men  are  in  by  the  election  to  fill  vacancies.  Well, 
the  .Oregon  brief,  contrived  not  only  a  double  but  a  treble  debt  to 
pay,  comes  up  again  to  prove  that  when  an  ineligible  person  is  elected 
there  has  been  no  election,  and  from  that  it  is  argued  that  when  one 
out  of  eight  fails  to  be  elected,  then  there  has  failed  to  be  an  election 
within  the  sense  that  a  Legislature  may  fill  the  place;  and  then,  to 
make  all  this  applicable  to  the  existing  state  of  law  in  Louisiana,  you 
are  asked  to  believe,  you  are  asked  to  hold  against  all  the  authorities, 
that  an  elector  ineligible  is  not  elected,  and  that  if  he  has  not  been 
elected  there  is  not  a  vacancy  in  the  college,  when  one  State  has 
said,  "  our  method  of  filling  any  vancancy  that  shall  happen  for  any 
cause,  any  defect  of  full  numbers  that  shall  show  itself  at  four  o'clock 
for  any  reason,  shall  be  filled  by  the  State  of  Louisiana  in  this  way, 
that  those  who  have  been  chosen  and  attend  shall  fill  the  place,"  this 
cannot  avail.  What  more  do  wo  need  to  say  ?  We  arrive  at  the  same 
result.  Our  learned  friends,  so  precise  in  language,  hold  that  there 
not  being  a  vacancy,  that  an  office  not  being  vacant,  that  there  being 
no  vacancy  in  an  office,  is  equivalent  to  the  office  not  having  been 
filled;  that  if  it  has  not  been  filled  it  is  not  vacant.  That  is  the 
proposition.  If  it  has  not  been  filled  it  is  not  vacant. 

Now,  an  office  is  either  vacant  or  full.  There  are  no  terms  in  law 
between  those  two  qualifications  of  being  vacant  or  full.  It  is  not 
half  full ;  it  is  not  full  with  an  embryo  that  may  grow  ;  it  is  full  or 
it  is  vacant.  The  Constitution  of  the  United  States  provides  that  in 
the  case  of  a  vacancy  in  the  representative  force  of  a  State  in  Con 
gress  the  governor  shall  issue  writs  to  fill  the  vacancy.  That  phrase 
is  used.  In  1837,  at  a  special  session  called  of  Congress,  commencing 
I  think  in  September,  some  States  had  no  Representatives  elected 
for  that  Congress.  Congress  began  usually  in  December.  There 
was  time  enough  to  elect  them  to  send  them  "in  season,  and  have  the 
freshest  choice  of  the  people.  The  governor  of  Mississippi,  not  de 
siring  that  State  to  be  unrepresented  in  that  important  special  session, 
issued  his  writs  for  a  special  election  to  fill  the  vacancy.  Was  there 
a  vacancy  or  not  ?  Certainly  our  learned  friends  would  have  found 
out  a  void  vacancy  in  that  case.  Nobody  had  perceived  it.  Messrs. 
Gholsou  and  others  were  returned,  and  the  question  came  up  on  their 
qualifications,  on  the  validity  of  the  election,  within  the  power 
doubtless  of  Congress;  and  the  House  held  that  they  were  duly 
elected,  and  gave  them  a  seat  for  the  full  term.  They  concluded  in 
Mississippi  that  they  would  have  another  election  for 'the  rest  of  the 
term,  and  they  sent  up  other  persons  chosen  in  November  at  the  reg 
ular  election.  So  in  December  we  had  a  new  choice  of  Congressmen, 
and  it  was  concluded  I  think  then  that  the  admission  of  them  for 
the  whole  Congress  was  erroneous. 

Mr.  MATTHEWS.  They  rescinded  the  former  resolution,  and  re 
fused  to  allow  the  newly  elected  members  to  come  in,  on  the  ground 
that  the  people  had  been  misled  as  to  the  time  of  the  election. 

Mr.  EVARTS.  They  held  them  only  to  bo  entitled  to  fill  the  va 
cancy,  and  they  did  not  admit  the  new  people,  because  they  were 
judges  of  the  whole  matter,  and  concluded  that  it  was  better  to  have 
another  election.  What  happened  then  is  unimportant;  but  you  can 
have  no  better  case  than  that.  This  is  to  be  found,  I  think,  in  the  vol 
ume  of  Contested  Elections  of  1834  to  1865,  page  9,  and  in  the  fifth 
volume  of  the  Congressional  Globe,  pages  80  to  96.  and  Appendix, 
page  85. 

Now,  then,  we  say  in  regard  to  the  Federal  disqualification,  no 
proof  can  reach  the  point,  none  is  offered  that  touches  the  point,  none 
would  be  admissible  if  it  did  touch  the  point,  because  of  the  want  of 
legislation  or  of  means  of  ascertaining  it. 

I  now  come  to  the  question  of  State  disqualification.  The  consti 
tution  of  this  State  of  Louisiana  has  a  provision: 

No  person  shall  hold  or  exercise  at  the  same  time  more  than  one  office  of  trust  or 
pront  except  that  of  justice  of  the  peace  or  notary  public. 


Governor  Kellogg  was  governor ;  Governor  Kellogg  was  elector. 
Some  of  these  other  electors  held  minor  offices,  it  is  said.  Proof  of 
this  fact  is  offered  in  regard  to  the  others  in  order  that  State  disqual 
ification  may  now  be  inquired  into  and  verified  in  the  counting  of  the 
vote  here.  There  are  sufficient  answers  to  this.  Let  us  look  at  an 
other  clause  of  this  constitution  which  provides  some  other  disqual 
ifications. 

AHT.  9!).  The  following  persons  shall  bo  prohibited  from  voting  and  holding 
any  office:  All  persons  who  shall  have  been  convicted  of  treason,  perjury,  forgery, 
bribery,  or  other  crime  punishable  iu  the  penitentiary,  and  persons  under  inter 
diction.  All  persons  who  are  estopped  from  claiming  the  right  of  suffrage  by 
abjuring  their  allegiance  to  the  United  States  Government,'  or  by  notoriously 
levying  war  against  it,  or  adhering  to  its  enemies,  giving  them  aid  or  comfort,  but 
who  have  not  expatriated  themselves  nor  have  been  convicted. 

So  on  with  a  numerous  list  of  disqualifications  for  holding  any 
office  in  the  State.  Suppose  an  imputation  were  made  against  an 
elector,  in  the  certified  lists  forwarded  by  the  electoral  college  and 
authenticated  by  the  governor,  of  any  of  these  disqualifications,  could 
you  try  it  ?  Certainly  not.  It  is  a  judicial  inquiry. 

But  this  office  of  elector,  say  Mr.  Trumbull  and  Mr.  Carpenter,  is 
not  a  State  office.  It  is  not  a  State  office,  it  is  an  elector,  a  repre 
sentative  elector.  When  ho  comes  into  office  ho  holds  the  office  un 
der  the  Constitution  of  the  United  States  and  he  acquires  the  office 
by  the  action  of  the  State,  the  function,  the  right  to  vote.  He  is  a 
representative  elector.  This  clause  of  the  Constitution  does  not 
hold  that  no  officer  under  that  State  shall  hold  a  Federal  office.  The 
courts  of  that  State  have  settled  the  question  that  it  not  only  means 
State  officers,  but  it  means  constitutional  officers.  They  have  not 
hampered  all  future  legislation  of  that  State  with  the  inconvenience 
of  never  having  a  man  a  member  of  two  charitable  boards,  as  one  of 
these  electors  is  charged  to  have  been.  They  have  not  hampered  the 
future  legislation  of  that  State  in  the  trammels  of  providing  that  a 
citizen  shall  be  made  useful  in  no  two  occupations,  employments,  or 
commissions  ;  but  it  is  constitutional  officers  that  it  applies  to  ;  and 
I  ask  attention  to  the  cases  in  5  Louisiana  Annual  Reports,  155 ;  b' 
Louisiana  Annual  Reports,  175.  The  case  in  SJ5  Louisiana  Annual 
Reports,  138, 1  think  was  referred  to  by  Mr.  She"llabarger. 

Mr.  Commissioner  THURMAN.  Do  you  mean  to  be  understood  as 
admitting  that  an  elector  is  an  officer  at  all,  either  Federal  or  State  ? 

Mr.  EVARTS.  I  do  not  think  he  is.  Certainly  he  is  not  a  State 
officer.  I  do  not  think  he  is  an  officer.  I  think  he  is  a  voter,  having 
qualifications,  aud  his  office  is  of  the  same  kind  with  the  office  of  a 
citizen  who  is  an  elector,  so  called  in  the  constitutions  of  most  of  the 
States,  but  whoso  qualifications  are  primary.  This  is  a  representa 
tive  elector  and  the  moment  the  representative  credentials  are  closed 
and  accorded  to  him,  ho  is  then  an  elector.  In  other  words,  he  is  not 
a  State  officer. 

Therefore  there  seems  to  be  nothing  in  that  proposition  which 
should  produce  proof,  because  proof  would  bo  entirely  ineffectual, 
first,  for  the  reason  that  the  inhibition  does  not  prevail;  secondly, 
for  the  reason,  which  would  apply  to  the  supervisor  as  well,  that 
there  is  no  provision  by  any  legislation  of  Congress  that  can  give  this 
action  of  the  two  Houses,  either  in  their  joint  assembly  or  in  this 
Commission  with  the  rights  accorded  to  it,  jurisdiction  over  the  ques 
tion  of  fact  involved  in  abuses  or  violations  of  the  State  constitution  ; 
and,  further,  for  the  reason  insisted  on  already,  that  these  provisions  of 
the  State  constitution  do  not  touch  the  Constitution  of  the  United 
States,  which,  while  it  was  careful  to  exclude  Federal  intervention  of 
office-holders,  was  not  guilty  of  the  folly  of  saying  that  no  State 
should  accredit  as  its  elector  an  honored  citizen  who  filled  in  the  af 
fections  of  the  people  and  the  authority  of  the  State  a  place  of  trust. 
If  anything,  it  was  desired  that  these  electors  should  bo  State  notables, 
men  who  had  the  adhesion  of  their  fellow-citizens  ;  aud  to  say  that 
we  must  take  the  residuum  of  public  character  and  of  public  interest 
and  of  public  repute  after  all  the  State's  offices  are  filled,  from  con 
stable  to  governor,  from  whence  we  cannot  have  an  elector,  is  imput 
ing  a  folly  to  the  frauiers  of  our  Constitution  that  they  are  not  open, 
to  and  which  cannot  be  forced  upon  them  by  State  legislation. 

Governor  Ingersoll,  of  Connecticut,  heads  the  electoral  choice. 
Every  man  honors  him  as  a  representative  of  his  State.  He  is  gov 
ernor.  Ho  certifies  to  himself.  He  discharges  a  governor's  duty  to 
certify  to  whomsoever  the  people  choose.  He  does  not  make  himself 
an  elector.  He  certifies  vipou  the  recorded  evidence,  as  John  Adams 
declared  that  he  was  President  of  the  United  States  by  the  count  of 
the  votes.  ; 

This  being  so,  we  come  to  the  primary  question  of  interest  to  the 
public,  of  interest  to  all  citizens,  of  interest  to  every  man  who  loves 
his  country,  every  man  who  loves  its  Constitution  in  its  spirit  of  being 
popular  government,  obedient  to  law ;  and  I  am  a.t  a  loss  to  see  that 
anything  that  I  have  to  say  on  this  subject  should  approve  itself  to 
one  portion  of  this  Commission  aud  be  unpalatable  to  another  by  rea 
son  of  any  political  adhesions  of  one  side  or  the  other.  I  shall  say 
nothing  that  I  would  not  say  as  a  citizen  holding  the  common  ground 
with  all  of  you  who  are  citizens  first  and  partisans  afterward.  ( 

When  I  talk  of  the  mischiefs  in  the  State  of  Louisiana  which  are 
attempted  to  be  curbed  aud  robbed  of  their  rapine  by  the  energetic 
laws  of  that  State,  I  do  not  understand  that  to  any  man,  because  his 
inclinations  or  his  convictions  incline  him  in  favor  of  the  elevation 
of  Governor  Tilden,  I  am  to  impute  that  he  looks  with  less  horror  upon 
that  subjugation  of  the  suffrage,  that  degradation  of  citizenship,  that 


ELECTORAL  COMMISSION. 


109 


confusion  of  society,  that  subversion  of  the  Constitution  than  I  do. 
He  only  wishes  that  it  should  bo  curbed  and  redressed  by  law.  And 
when  I  speak  of  the  frauds  as  charged — for  I  must  speak  of  them  as 
charged  at  this  stage  of  the  business,  for  they  have  not  been  proved  at 
a\l — when  I  speak  of  them  as  charged  involving  falsification,  oppres 
sion,  false  counting,  forgery,  conspiracy,  every  shade  of  the  crimen 
falsi,  am  I  to  be  charged  in  this  presence  or  any  other  with  having 
less  complacency  even  in  the  lowest  grade  of  this  vice  than  those  who 
uphold  their  correction  and  desire  that  they  shall  be  frustrated,  when 
I  demand  that  it  shall  be  done  by  law  ? 

That  is  my  demand.  Is  it  a  partisan  demand  ?  It  is  the  same  de 
mand  that  is  made  in  respect  to  the  gross  afflictions  which  eveiy  cit 
izen  feels  as  beaten  by  the  same  stripes  that  were  iuilicted  011  the 
backs  of  those  poor,  unbefriended  negroes.  That  is  citizenship  ;  it 
is  not  partisanship.  And  when  this  other  vice  added  to  violence,  to 
gether  ruling  the  evil  in  the  world — violence  and  fraud — when  that 
other  form  corrupting  and  afflicting  our  citizenship,  I  feel  it  as  bear 
ing  a  full  share  of  the  common  shame,  whether  it  be  inflicted  by  the 
relentless  and  shameless  tyranny  of  the  New  York  dynasty  or  by  the 
alleged  frauds  of  the  Louisiana  dynasty.  But  why  is  it  that  fraud 
is  so  detestable  ?  Why  is  it  that  the  law  searches  i'or  it  as  with  can 
dles  and  condemns  it  when  it  is  brought  into  judgment  ?  Because  it 
is  but  another  form  of  violence — Fraus  cequi  paratur  vi.  That  is  the 
reason  that  the  violence  that  ravishes  is  more  heinous  than  the  fraud 
that  secretly  purloins  the  virtue  and  the  fame  of  American  citizen 
ship. 

Wo  do  not  wish  to  be  told  that  fraud  is  worse  than  violence.  Its 
vice  is  that  it  robs  the  act  of  that  consent  on  which  its  freedom  de 
pends,  to  the  same  effect  as  violence  does.  Fraud  is  compared,  as  in 
a  simile,  to  the  principal  evil,  itself  described  as  violence.  Here  all 
agree  that,  under  the  great  national  transactions  that  closed  the  war 
and  under  the  experience  of  the  condition  of  society  in  Louisiana 
thereafter,  there  was  exhibited,  not  indeed  a  continuation  of  armed 
revolt  against  the  Government,  but  far  from  the  repose  that  belongs 
to  peace.  There  were  these  outbreaks  of  a  bastard  and  seditious  sol 
diery,  the  authors  of  jwhich,  by  the  laws  of  war,  while  flagrant,  would 
all  be  hanged  in  either  camp.  What  was  the  scene  f  Was  it  revolt  ? 
Was  it  pea.ce  ?  It  was  that  more  dangerous  condition  of  the  body, 
politic,  which,  unprobed  and  uncured,  must  breed  a  conflagration  both 
of  civil  and  domestic  war.  "Nee  tumullus  nee  quies;  quale  magni 
metus  et  magnas  irce  silentium  est." 

It  is  that  brooding  silence  of  preparation  which  is  to  determine 
whether  outbreak  shall  assert  or  whether  fear  reduced  to  despair 
shall  surrender  liberty  ;  and  to  that  state  of  things  the  independent 
action  of  the  State  of  Louisiana  was  directed.  It  was  to  them  a  real 
state  of  things.  It  was  not  a  state  of  things  to  be  smiled  at  at  a  dis 
tance,  whichever  side  the  smile  came  from.  It  was  the  brooding  of 
great  fear  and  great  wrong  over  a  whole  population,  and  they  under 
took  to  put  it  into  the  frame- work  of  their  constitution  that — 

The  privilege  of  free  suffrage  shall  'he  supported  by  laws  regulating  elections 
and  prohibiting  under  adequate  penalties  all  undue  influence  tkcrcoii  from  power, 
bribery,  tumult,  or  other  improper  practice. 

In  pursuance  of  that  duty,  imposed  upon  the  Legislature  by  the 
same  independent  right,  dealing  with  an  actual  situation,  the  Legis 
lature  undertook  to  support  the  free  suffrage  and  in  their  judgment, 
in  the  choice  they  made  who  can  control  them  ?  Shall  the  proud  pu 
rity  of  New  York  City  judge  of  the  means  to  be  used  in  Louisiana? 
Shall  the  saint-protected  postures  of  Senators  and  Representatives 
and  judges  and  advocates  judge  in  the  silence  of  this  court-room  of  the 
means  ?  No.  There  is  but  one  limit  to  the  means;  I  mean  one  limit 
to  be  imposed  outside  that  State,  under  that  clause  of  the  Constitu 
tion  ;  none  in  the  State,  except  that  these  means  should  bo  adequate, 
appropriate,  and  seasonable,  and  they  might  be  used. 

Now  eminent  statesmen  and  lawyers  say  that,  when  these  methods 
in  this  law  prescribed  are  resorted  to  by  a  State  to  save  itself  from 
the  ruin  of  civil  and  domestic  war,  it  prevents  the  State  from  being 
considered  republican  ;  and  the  demonstration  and  the  proof  of  what 
was  republican  government  advanced  by  the  learned  counsel  Judge 
Trumbull  was  that  if  a  government  needed  to  be  supported  by  arms 
it  was  not  republican.  Well,  was  our  Government  a  monarchy  be 
cause  we  had  to  support  it  by  arms  through  four  years  of  civil  war  ? 
What  else  did  support  it  ?  What  else  prevented  the  pillars  of  this 
court-room  crushing  the  j  ndges  in  their  office  f  What  but  armed  men, 
servants  of  the  civil  power,  citizens  in  arms  supporting  their  Govern 
ment  because  they  loved  it ;  and  they  loved  it  because  it  was  repub 
lican.  I  think  that  the  quod  erat  demonstrandum  does  not  come  by  that 
process. 

What  is  the  proof  offered  ;  what  in  principle,  what  in  nature  I  How 
far  is  it  within  the  disposition  of  the  offers  made  in  the  Florida  casef 
The  offer  there  was  to  show  that  though  the  governor's  certificate 
was  conformed  to  the  recorded  canvass  of  the  final  State  authority, 
and  there  was  no  room  for  intervening  proof  between  them,  yet  be 
hind  the  canvass  a  resort  to  simple  and  record  facts  would  show  that 
the  returning  officers  acted  without  jurisdiction.  That  was  the  prin 
ciple  of  the  offer.  Will  any  one  say  that  the  act  of  officers  without 
jurisdiction  is  a  mild  and  moderate  form  of  defective  authority,  com 
pared  with  which  fraud  was  a  more  evident  and  a  more  palpable  de 
feat  of  such  action  f  By  no  means.  When,  therefore,  you  had  an 
offer  to  produce  by  proof  the  county  returns  in  Florida,  in  order  to 
base  on  that  fact  an  argument  that  the  action  of  the  canvassing  board 


on  those  returns,  wherein  it  assumed  to  redress  or  re-arrange  them, 
was  without  jurisdiction,  carried  every  possible  legal  and  constitu 
tional  ground  of  proof  that  can  be  conceived.  Let  me  show  that  I 
speak  by  the  card  when  I  refer  to  the  very  accurate  statement  of  his 
proposed  proof  by  Mr.  O'Conor,  found  on  page  44  of  the  CONGRES 
SIONAL  RECORD  of  February  4 : 

In  so  doing — 

That  is,  stating  what  they  did  in  respect  to  the  manipulations  of 
the  county  returns — 

In  so  doing  the  said  State  board  acted  without  jurisdiction,  as  the  circuit  and  su 
preme  courts  in  Florida  decided.  It  was  by  overruling  and  setting  aside  as  not 
warranted  by  law  these  rejections  that  the  courts  of  Florida  reached  their  respect 
ive  conclusions  that  Mr.  Drew  was  elected  governor,  that  the  Hayes  electors  were 
usurpers,  and  that  the  Tilden  electors  were  duly  chosen.  No  evidence  that  in  any 
view  could  be  called  extrinsic  is  believed  to  be  needful  in  order  to  establish  the 
conclusions  relied  upon  by  the  Tilden  electors,  except  duly  authenticated  copies 
of  the  State  canvass — 

That  is,  "  the  erroneous  canvass,"  as  Mr.  O'Conor  considered  it — 

and  of  the  returns  from  the  above-named  four  counties,  one  wholly  and  others 
in  part  rejected  by  said  State  canvassers. 

In  order  to  show  that  their  return  rested  on  action  behind  it  that 
was  without  jurisdiction.  Well,  one  ground  covers  all.  Extra  vires, 
without  law,  without  authority,  is  as  much  a  condemnation,  if  the 
proof  will  sustain  it,  as  it  is  possible  to  suggest. 

Mr.  Commissioner  THURMAN.  Mr.  Evarts,  allow  mo  to  suggest  to 
you  that,  if  a  majority  of  the  Commission  thought  the  Florida  statute 
authorized  what  was  done,  then  the  introduction  of  proof  would  have 
been  improper ;  and  therefore  it  does  not  follow,  because  an  argument 
was  made  that  the  board  exceeded  its  jurisdiction  in  throwing  out 
votes,  that  this  Commission  so  held,  for  a  decision  that  the  true  in 
terpretation  of  the  statute  would  justify  what  they  did  made  it  im 
material  to  inquire  what  the  motive  was. 

Mr.  EVARTS.  I  can  only  say  that  the  offer  of  proof  was  offered 
only  on  that  ground,  only  on  the  single  ground,  and  the  grounds  here 
are  of  that  nature  and  of  the  nature  of  fraud  or  mala  fides  in  the  trans 
action  itself,  which  last  I  shall  consider. 

Mr.  O'Conor,  as  was  to  be  expected  from  his  clear  relish  of  legal 
propositions,  understood  that  that  involved  in  principle  going  behind 
the  returns  at  the  polls,  and  he  argued  that  our  objections  to  that 
were  of  that  somewhat  disfavored  complexion  of  its  being  incon 
venient  to  go  into  those  proofs.  He  did  not,  as  I  think,  correctly  ap 
preciate  our  position ;  but  he  did  not  deny  that  if  ho  were  allowed  to 
adduce  that  proof  we  had  a  right,  on  the  principles  on  which  he  was 
allowed  to  introduce  it,  to  goto  the  bottom  of  every  precinct  poll,  and 
he  met  the  difficulty  of  time  and  resources  for  it  by  saying  that  the 
Commission  here  might  temper  that  jurisdiction  by  going  as  far  as 
they  found  it  convenient,  and  then  stopping ;  that,  I  suppose,  if  they 
found  themselves  getting  beyond  their  depth  they  might  swim  ashore, 
and  leave  to  drown  the  candidate  that  at  that  stage  of  the  water 
found  it  over  his  head.  But  here  our  friend,  Mr.  Carpenter,  proposes 
another  solution,  that  the  fact  that  they  have  not  time  to  do  the 
thing  is  not  a  reason  for  concluding  that  perhaps  it  is  not  one  of  the 
duties  that  is  assigned  to  you,  but  simply  afford^  a  reason  for  peremp 
tory  adjournment ;  that  the  tiling  had  better  be  undone  than  done ; 
and  there  is  no  choice  but  one  way  or  the  other ;  for  if  anything  these 
proffers  go  into  the  whole  untra versed  sea  of  action,  jurisdiction  based 
on  the  action  of  subordinate  officers  in  the  conduct  of  the  election  on 
days,  on  forms,  on  the  facts  that  must  appear,  and  the  proofs  that 
must  show  the  facts  to  give  jurisdiction,  and  you  are  turned  into  a 
supervising  court  that  takes  up  the  transactions  of  a  special  jurisdic 
tion  by  ccrtiorari  to  search  it,  and  see  whether  the  jurisdictional  facts 
existed ;  whether  they  existed  in  throwing  out  this  poll,  that  poll, 
the  other  poll,  and  whether,  when  it  is  rectified,  the  object  being  to 
produce  only  then  a  prima  facie  officer,  you  have  been  discharging 
the  duty  that  the  Constitution  imposed  upon  you,  or  whether  it  rested 
on  the  governor  and  the  canvassing  board  to  determine. 

Well  now,  the  fraud,  in  the  sense  of  mala  fides,  of  returning  officers 
or  canvassing  boards  is  extraneous  fact,  is  fact  that  does  not  vitiate 
as  much  as  being  ultra  vires  does  or  can.  It  is  more  opprobrious  in 
epithet ;  it  is  more  damnable  in  its  morality;  but  in  its  legality  it  is  a 
step  lower  than  ultra  vires. 

Now  let  us  look  at  once  and  briefly  at  the  very  proposition  as  to 
the  right  to  trouble  the  State's  election,  whether  they  have  been  hon 
est,  whether  they  been  wise,  whether  they  have  been  careful,  wrhether 
they  have  been  prosperous.  Supposing  that  the  Constitution  had 
given  the  casting  of  the  electoral  votes  of  a  State  to  the  governor  of 
that  State ;  he  should  be  the  representative  elector ;  he  should  throw 
the  votes  that  were  distributed  to  the  population  of  that  State;  what 
right  would  you  have  had  to  inquire  beyond  the  single  point  who  is 
governor,  who  is  governor  de  facto,  who  is  the  governor  governing 
the  State  at  the  time  that  he  enters  upon  that  transaction  ?  Could 
you  inquire  whether  he  had  been  fraudulently  elected,  whether  in 
his  election  the  liberties  of  the  people  had  been  suppressed,  whether 
he  was  in  by  a  fraudulent  conspiracy  by  which  he  bought  his  office, 
whether  he 'had  taken  part  in  the  plots  that  had  subverted  the  suf 
frage  and  falsified  the  action  of  the  people  ?  You  could  not.  It  is 
enough  for  you  that  the  governor  who  governs  is  the  man  who  is  to 
represent  the  electoral  votes  of  that  State.  What  other  right  have 
vou  in  regard  to  electors  in  inquiring  into  the  facts  by  which  the  State 
has  transacted  the  business  of  bringing  into  existence  electors  de 


no 


ELECTORAL  COMMISSION. 


facto?  I  submit,  on  principle  none  whatever.  And  on  this  question 
of  fraud  or  mala  fides  or  oppression,  upon  what  possible  principle  can 
you  enter  into  that  inquiry  ?  Who  does  not  see  that  if  you  give  the 
great  power  of  the  Federal  Union  a  judgment  in  the  matter  of  how 
the  State  has  performed  its  duty  you  give  the  judgment  that  the 
wolf  had  over  the  conduct  of  the  lamb,  and  can  trace  the  vice  in  that 
conduct  to  any  remoteness  of  relation  that  you  choose? 

I  apprehend  that  nothing  is  sounder  and  safer  than  this,  that?  wo 
are  to  redress  these  mischiefs  by  law  and  the  Constitution,  although 
fraud  may  make  us  recoil  from  its  touch,  and  although  violence  may 
make  us  shudder  at  its  degradation  of  the  American  name.  I  have 
heard  that  fraud  vitiates  everything,  and  it  is  spoken  of  here  as  if  it 
did  it  of  its  own  force  ;  that  every  factum  in  which  an  ingredient  of 
fraud  entered  thereby  became  infectum,  and  so  the  bane  always  bred 
its  antidote.  Fraud  would  not  be  so  dangerous  an  element  if  that 
were  so.  I  have  heard  that  the  liberties  of  the  people  are  to  be 
paramount  in  every  particular  juncture,  and  that  laws,  and  constitu 
tions,  and  courts,  and  the  permanence  of  the  system  of  justice,  and 
the  truth  that  will  endure,  are  all  to  be  thrown  aside  upon  the  mere 
intrusion  of  this  afflictive  element  of  fraud,  and  that  this  course 
alone  will  secure  their  liberties  to  the  United  States  and  their  people. 
We  have  a  maxim  of  the  law,  and  of  social  ethics  and  philosophy, 
that  goes  behind  all  this :  Misera  est  servitus,  uH  jus  vayum  aut  incer- 
tum.  There  is  no  condition  of  a  people  so  abject  as  where  the  law 
does  not  rest  upou  firm  foundation,  and  its  lines  are  not  certainly 
drawn.  « 

In  the  pressure  of  partfcuTar  considerations  tnat  affect  tne  sympa 
thies  and  the  conscience,  this  is  always  the  appeal.  What,  it  is 
said,  is  a  constitution  compared  with  human  interests  and  human 
liberty  ?  Nothing,  to  be  sure,  except  that  all  our  social  interests  and 
all  our  liberties  rest  on  law  and  the  Constitution.  These  are  not 
the  deity,  but  they  are  the  shrine,  without  whose  shelter  no  human 
worshiper  can  detain  the  goddess  from  the  skies. 

Now,  for  these  poor  people  of  Louisiana,  if  the  Federal  power  now 
takes  to  thwart,  to  uproot  this  scheme  of  energetic  law  to  preserve 
society  there  from  destruction,  and  leaves  these  unbefriended,  uned 
ucated,  simple  black  people  to  the  fate  from  which  the  State  strove 
hard  to  save  them — I  say  that  you  will  have  made  them,  by  that 
action,  the  vicMms  of  your  Constitution,  for  your  Constitution  gave 
them  the  suffrage,  and  they  are  to  be  slaughtered  for  having  the  gift 
found  in  their  hands.  I  say  that  you  make  them  the  sacrifices  to  the 
triumph  of  the  Government  over  the  rebellion.  I  say  that  such  self- 
abasement  of  the  powers  of  this  Government  is  beyond  all  cure.  It 
teaches  the  sad  lesson  that  the  American  people,  in  the  attempt  to 
make  good  the  largeness  of  its  promise  and  to  work  out  the  glory  of 
its  proud  manifesto  of  freedom  and  equality  before  the  law,  finds  it 
self  thwarted  by  the  exhibition  of  violence  in  this  turbulent  popula 
tion,  and  forced,  with  its  own  hand,  to  crush  the  methods  of  law  by 
which  the  Stnte  has  sought,  alas!  how  vainly,  to  curb  and  redress 
this  menace  and  this  mischief  to  its  honor  and  its  peace. 

Mr.  Commissioner  THURMAN.  I  move  that  the  Commission  take 
a  recess  until  a  quarter  to  two  o'clock. 

The  PRESIDENT.    A  recess  for  half  an  hour. 

Mr.  Commissioner  THURMAN.    Thirty-two  minutes. 

The  PRESIDENT.  Mr.  Commissioner  THURMAN  moves  that  the 
Commission  take  a  recess  until  a  quarter  before  two  o'clock. 

The  motion  was  agreed  to. 

The  Commission  re-assembled  at  one  o'clock  and  forty-five  minutes 
p.  m. 

The  PRESIDENT.  Before  proceeding  to  business  I  will  read  a 
copy  of  a  resolve  sent  to  me  by  the  Secretary  of  the  Senate. 

IN  THE  SENATE  OF  THE  UNITED  STATES, 

February  15,  1877. 

Resolved,  That  tho  Electoral  Comnrnsion  have  leave  to  occupy  the  Senate  Chamber 
for  its  sittings  in  the  o  veiling  after  th«  Senate  shall  have  taken  a  recess  for  the  day. 
Attest : 

GEOKGE  C.  GOKHAM, 

Secretary. 

I  suppose  this  will  lie  on  the  table  for  the  present.  That  course 
will  be  pursued  if  there  be  no  objection. 

Mr.  CAMPBELL,.  What  is  the  length  of  time  that  will  be  allowed 
to  me. 

The  PRESIDENT".  The  time  under  tile  order  passed  on  motion  of 
Justice  STRONG  on  your  side  has  expired.  You  have,  however,  two 
hours  and  thirty  minutes  of  the  other  time  left. 

Mr.  CAMPBELL.  Mr.  President  and  gentlemen  of  tho  Commis 
sion,  I  differ  so  fundamentally  with  the  learned  counsel  who  preceded 
mo  upon  the  principle  of  the  generative  process  by  which  the  elect 
ors  of  President  and  Vico-Presideutcame  into  the  Constitution  that  I 
shall  alter  the  arrangement  of  my  argument  as  I  had  prepared  it 
and  follow  the  arrangement  pursued  by  the  learned  counsel  who  last 
addressed  the  court.  I  do  not  understand  that  the  election  of  Presi 
dent  had  its  origin  in  any  State  constitution  or  that  it  derived  its 
existence  from  any  reserved  fund  of  power  belonging  to  the  States. 
My  impression  of  that  office,  my  impression  of  the  means  by  which 
that  office  is  to  be  filled,  is  that  it  is  from  the  first  to  the  last  a  power 
derived  from  the  people  of  the  United  States,  the  people  of  the  States 
united ;  that  itowes  its  birth  to  no  State  constitution  ;  it  derives  the 
power  from  no  State  law  or  State  will.  I  do  not  assert  that  tho  Gov 
ernment  of  the  United  States  came  into  being  only  with  this  Consti 


tution,  or  that  the  United  States  themselves  came  into  being  by  the 
ratification  of  this  Constitution.  The  Constitution  came  into  being 
by  the  ratification  and  acceptance  of  the  States ;  but  if  the  States  had 
rejected  this  Constitution  there  would  have  been  still  a  United  States. 
Tho  United  States  came  into  existence  with  the  Declaration  of  Inde 
pendence, 

We  are  told  by  Mn  Justice  Chaso,  in  one  of  tho  most  interesting 
opinions  that  ever  came  from  the  court,  in  the  case  of  Ware  us.  Hilton, 
that  during  the  war  of  the  Revolution  the  United  States  exercised  all; 
the  powers  of  a  sovereign  government  without  much  inquiry  as  to' 
where  the  source  of  their  authority  came  from.  During  the  period, 
of  the  Confederation  they  were  still  the  United  States  under  confed-j 
erate  articles;  but  tho  people  of  the  United  States  constituted! 
some  sort  of  a  Union,  a  historical  Union,  stronger  than  the  Union-, 
formed  by  the  confederate  compact ;  and  so,  when  they  sent  dele-i 
gates  to  Philadelphia  who  formed  and  organized  the  articles  which* 
compose  the  Federal  Constitution,  it  was  a  proposition  to  the  States' 
to  accept  those  articles  and  to  form  a  Union,  not  for  the  first  time,i 
but,  as  declared  in  the  very  face  of  the  Constitution  itself,  "  a  more> 
perfect  Union."  When  they  spoke  again  in  the  language  of  this  Con-; 
stitution,  and  which  language  became  "  the  supreme  law  of  the) 
land  "  on  the  adoption  of  this  Constitution,  it  was  no  language  that! 
they  spoke  to  the  States  on  this  subject  such  as  has  been  represented; 
to  the  Commission.  Tho  people  of  tho  United  States  on  the  face  of 
this  Constitution  speak  with  power,  with  sovereign  power :  "  We, 
the  people  of  tho  United  States,  do  ordain  and  do  establish  this  Con-* 
stitution."  When  they  came  to  the  subject  of  the  President  they1 
said,  "  The  executive  power  shall  be  vested  in  a  President  of  the 
United  States  of  America ;"  and  when  those  words  were  accepted  as 
law,  he  was  the  President  of  the  United  States  of  America ;  and  when 
they  came  to  speak  of  the  manner  of  his  appointment,  it  is  said 
''each  State  shall  appoint  electors."  Each  State  is  permitted  to 
appoint,  each  State  is  charged  to  appoint,  each  State  is  required  to 
appoint,  each  State  is  commanded  to  appoint  "in  such  manner  as  the 
Legislature  thereof  may  direct."  It  is  not  the  State  saying  "We 
allow  you  to  make  a  President  of  the  United  States,  provided  you 
will  allow  us  and  our  Legislature  to  show  the  manner  and  moans  by 
which  that  election  shall  be  made."  The  language  of  the  Constitu 
tion  is  imperative  ;  it  is  tho  absolute  "  shall  appoint." 

Coming  now  to  the  conclusion  of  it,  what  are  the  powers  that  tho 
two  Houses  of  Congress  have  exercised  in  relation  to  the  exercise  of 
this  power  ?  Do  the  States  come  before  you  in  the  shape  of  sovereigns, 
claiming  of  you  by  any  title  superior  to  that  of  the  Constitution  that 
their  votes  shall  be  counted  ?  Do  they  come  here  and  toll  your  Presi 
dent  of  the  Senate,  "  Lay  these  votes  before  these  Houses  and  tclll 
that  Senate  and  tell  that  House  of  Representatives  to  count  them  af 
tho  peril  of  our  displeasure  ?"  Has  that  been  tho  soul  and  the  temper 
with  which  the  States  have  come  to  the  two  Houses  of  Congress ; 
and  has  their  reception  been  with  any  submissive  tone  and  temper  on 
the  part  of  the  two  Houses  in  joint  convention  f  Why,  sir,  there  is 
one  instance,  the  like  of  which  I  trust  will  never  appear  again,  when 
these  two  Houses  of  Congress  said  to  four  of  the  original  States,  to 
that  one  of  tho  original  States  to  which  more  than  any  other  may  be 
ascribed  the  production  of  this  Constitution,  and  said  to  six  others  in 
company  with  the  four  original  members,  "  We  will  not  count  any 
votes  that  may  come  from  those  States ;"  said  it  in  advance  of  the  re 
ception  of  any  votes,  without  the  expectation  of  receiving  any  votes, 
but  in  the  vindication  of  their  own  authority,  expressing  the  will  of 
a  proud  and  powerful  people  carrying  on  hostilities  with  those  States. 
Seeing  here  an  apparent  title  on  this  Constitution  which  might  allow 
them  to  present  the  votes  of  electors  for  President  and  Vice-President, 
in  advance  of  any  presentation  of  votes,  Congress  passed  a  resolution 
that  those  votes  should  not  be  received. 

There  were  some  chimerical  governments,  so  called,  existing  in  those 
States  that  did  protend  to  send  electoral  lists  to  the  two  Houses  ;  but 
they  were  regarded  as  being  unworthy  of  any  consideration.  The 
two  Houses  knew  perfectly  well  that  the  ten  States  they  excluded 
were  not  in  any  manner  represented  by  those  caricatures  of  govern 
ments  ;  and  dealing  with  the  principal,  dealing  with  the  States  them 
selves,  they  declared  to  them  that  they  should  not  employ  the  power' 
granted  in  this  Constitution.  Now,  I  can  suppose  a  case.  Suppose' 
that  the  Legislature  of  Virginia  had  sent  here  electoral  lists  iu  18(>5' 
to  vote  for  tho  incumbent  of  the  office  at  that  time  ;  suppose  that  she 
had  demanded  her  right  under  this  Constitution  ;  suppose  she  had' 
told  you  "  It  was  our  Washington  who  signed  that  document ;  it  was 
our  Madison  who  furnished  tho  eloquence  that  enabled  it  to  succeed;: 
it  was  the  profound  wisdom  of  George  Mason  that  appears  in  the  lines' 
of  it ;  we  come  here  by  that  title  ;  here  are  tho  votes  of  our  electors, 
appointed  by  our  Legislature ;  count  them;"  what  would  have  beeuj 
the  answer  f  It  would  have  been  as  haughty  and  as  proud  as  the  de-< 
niand  :  <;  You  are  no  longer  entitled  to  the  benefits  of  this  Constitution,, 
because  you  have  attempted  to  abrogate  it ;  and  we  will  not  count 
your  votes  or  allow  you  even  to  come  so  far  as  our  Houses  to  present 
them  ; "  and  this  Government,  these  two  Houses  speaking  in  that  voice 
of  authority  for  the  whole  people  of  the  United  States,  which  was 
vested  in  them  for  that  purpose,  is  now  the  poor,  feeble,  paltry  im 
becile  thing  that  cannot  deal  with  a  certificate  of  a  fraudulent  re 
turning  board ! 

But  I  am  told  that  the  action  of  the  Legislature  of  the  State  is  con 
clusive  ;  no  examination  can  be  made  into  their  authority,  no  inquiry 


ELECTORAL  COMMISSION. 


into  the  force  of  their  acts  ;  they  have  the  supreme  authority  to  direct 
on  this  subject ;  it  is  their  reserved  right,  you  canuot  touch  it ;  you 
cannot  impair  it ;  it  belonged  to  them  before  you  existed ;  while  those 
States  -were  living  you  were  unborn,  and  all  that  you  have  has  been 
given  from  them  to  you ;  this  they  never  gave  and  here  is  a  gross 
usurpation  if  you  venture  to  inquire  into  the  act  of  that  Legislature. 
Is  that  true  ?  The  State  has  the  power  to  appoint ;  the  Legislature 
the  manner  and  means  of  that  appointment.  But  is  it  not  a  trust 
power  I  Is  that  power  given  to  it  for  the  benefit  of  the  State  or  any 
gratification  of  the  State,  or  as  a  bauble  for  the  State  to  play  with  ? 
This  joint  convention  has  the  power  to  look  into  every  act  of  that 
Legislature ;  and  if  that  Legislature  offends  the  spirit  of  the  Union ,  if 
it  contravenes  the  fundamental  principles  that  lie  at  the  foundation 
of  American  liberty,  it  can  reject  the  votes.  While  the  learned  gen 
tleman  was  speaking  I  drew  up  the  form  of  an  act  of  the  Legislature 
of  Louisiana  to  enable  me  to  put  the  case  fairly  before  you  : 

"Be  it  enacted,  #c.,  That  William  Pitt  Kellogg  and  J.  Madison  Wells 
and  their  associates  are  made  a  body  corporate,  and  with  all  the  pow 
ers  of  a  corporation  under  the  civil  code  of  Louisiana ;  and  that  there 
is  granted  to  them  the  solo  and  exclusive  power  and  privilege  to  nom 
inate  and  appoint,  in  all  the  forms  and  at  the  times  that  may  be  des 
ignated  in  the  acts  and  statutes  of  the  United  States,  electors  for 
President  and  Vice-President  of  the  United  States  at  each  presiden 
tial  election  under  the  Constitution  of  the  United  States,  which  may 
be  apportioned  and  allotted  to  the  State  of  Louisiana  or  which  the 
State  of  Louisiana  may  be  entitled  to  appoint ;  and  from  time  to 
time  the  Legislature  contracts  to  make  such  directions  as  may  be 
necessary  to  make  this  grant  effective  ;  and  the  governor  shall  grant 
all  such  certificates  and  commissions  and  do  all  other  acts  in  further 
ance  thereto." 

It  is  not  very  far  from  the  case  before  the  court.  But  if  electoral 
votes  were  presented  by  that  corporation  with  the  seals  and  the  sig 
natures  that  the  laws  of  the  United  States  have  provided,  is  there  a 
member,  either  of  the  House  of  Representatives  or  of  the  Senate,  not 
being  a  stockholder  in  that  corporation,  who  would  hesitate  for  a 
moment  to  reject  it  with  contumelious  scorn  ?  The  answer  would  be 
clear;  it  would  be  unequivocal,  and  the  judgment  would  be  a  just 
judgment. 

It  is  the  United  States,  now  thirty-eight  in  number,  who  are  inter 
ested  in  the  exercise  of  this  power.  The  subject  of  the  exercise  is  the 
appointment  of  the  executive  Chief  Magistrate  of  this  Union.  He 
commands  our  armies ;  he  commands  our  navies.  The  might  of  the 
nation  is  under  his  command.  He  represents  us  through  embassa- 
dors  commissioned  by  him  in  all  foreign  nations,  and  he  receives  em- 
bassadors  and  ministers  from  foreign  nations ;  he  conducts  inter 
course  with  them,  negotiates  treaties.  He  comes  down  with  a  veto 
upon  the  acts  of  our  Congress,the  legislative  department  of  the  Gov 
ernment,  and  an  enlarged  majority  must  bo  given  to.overcomethat  veto. 

The  judges  of  the  Supreme  Court  and  other  courts  are  nominated 
and  commissioned  by  him.  He  is  the  head,  the  most  distinct  repre 
sentative  of  the  nation  abroad  and  of  the  nation  at  home.  And  we 
cannot  consent  to  receive  appointment  of  electors  who  elect  him 
from  William  Pitt  Kellogg  and  James  Madison  Wells,  although  sanc 
tioned  by  legislative  enactment.  You  may  treat  it  with  sorrow  and 
you  may  treat  it  with  rebuke,  but  you  will  be  obliged  by  your  oath 
to  support  the  Constitution  not  to  permit  it  to  interefere  in  the 
election  of  that  officer. 

The  State  must  appoint,  that  corporate  being  composed  of  persons  ; 
and  if  it  had  not  a  person  on  it,  still  having  rights  under  the  Consti 
tution  as  a  territorial  corporate  being,  and  unless  the  voice  that  comes 
to  the  two  Houses  be  the  voice  of  that  State,  whether  expressed  by 
its  Legislature  or  expressed  by  its  people,  that  voice  must  come  be 
fore  the  electoral  lists  can  be  received.  You  must  have  assurance 
that  it  is  the  State,  the  member  of  the  Union,  the  equal  of  all  the 
other  States  of  the  Union.  Its  voice  must  be  heard  in  that  vote ;  no 
voice  other  will  be  accepted. 

Such  being  the  fact,  let  us  go  one  step  further.  The  Legislature 
may  direct  the  manner.  I  have  put  a  case  in  which  I  have  not  a 
question  every  member  of  this  Commission  would  concur  with  me 
that  that  voice  could  not  be  given  to  a  corporation.  If  this  presi 
dential  appointment  cannot  go  into  tho  market  as  stock  to  be  bought 
and  sold,  although  there  may  be  "  millions  in  "  a  presidential  elec 
tion,  it  must  speak  the  present  voice  of  the  State  ;  it  ought,  if  it  is  to 
represent  its  best  feelings,  its  best  intelligence,  its  highest  honors ; 
and  if  you  see  certainly  that  none  of  these  can  possibly  be  represented 
in  the  directions  of  the  Legislature,  you  will  discard  the  directions. 

Having  shown,  I  think,  t'hat  the  legislative  directions  must  be  con 
formable  to  the  spirit  of  the  Constitution  and  in  harmony  with  the 
general  purpose  to  be  accomplished,  it  follows  inevitably  that  these 
two  Houses  of  Congress  must  look  into  the  nature  and  character  of 
those  directions.  I  do  not  claim  for  these  two  Houses  any  nice  critical 
or  captious  spirit ;  but  a  broad  and  generous  interpretation  is  to  be 
given  to  the  action  of  the  Legislature.  It  is  not  an  absolute  or  an 
arbitrary  power  that  is  conferred  upon  the  Legislature.  They  do  not 
possess  it  in  full  sovereignty,  as  the  argument  would  seem  to  imply. 
They  are  responsible  and  responsible  to  the  people  of  the  United  States 
quite  as  much  as  the  Legislature  is  responsible  to  the  people  of  its  own 
State.  Then  looking  at  those  directions  and  finding  those  directions 
to  comport  with  the  terms  and  spirit  of  the  Constitution,  what  next 
is  it  that  these  Houses  can  do  ? 


The  next  thing  for  them  to  see  is  that  those  directions  have  been 
conformed  to ;  and  precisely  here  another  exercise  of  power  by  the 
two  Houses  of  Congress,  in  my  judgment  a  perfectly  justifiable  and 
proper  exercise  of  power,  was  made  in  the  case  of  Louisiana  in  1873, 
as  her  vote  was  rejected  in  1865  by  the  two  Houses.  The  case  there 
was  a  quarrel  in  Louisiana  between  two  returning  boards.  The  one 
returning  board,  under  which  the  election  was  made,  some  ten  days 
after  tho  election  was  made  was  annulled  by  the  act  of  the  governor 
of  the  State.  Your  honors  ought  to  know  that  the  most  pernicious 
practice  or  privilege  allowed  to  a  governor,  who  receives  a  bill  within 
iive  days  of  the  adjournment  of  the  Legislature,  is  to  hold  it  until 
the  next  Legislature.  You  will  notice  to  nearly  all  these  laws  the 
signature  and  approval  of  the  governor  were  given  in  what  may  be 
termed  ordinarily  the  vacation,  in  the  time  between  one  Legislature 
and  another.  The  governor  of  that  State  at  that  time  had  procured, 
a  year  or  two  before,  the  act  of  1870  possibly — for  there  is  no  other 
material  difference  between  the  laws — possibly  doubting  his  return 
ing  board  under  that  act,  which  consisted  of  the  governor,  lieutenant- 
governor,  and  two  other  persons.  Another  act  was  passed  appointing 
another  returning  board,  constituted  differently  and  selected  differ 
ently.  He  held  up  that  act  until  a  bill  was  filed  for  the  purpose  of 
causing  the  returns  that  were  in  his  hands  as  the  president  of  the 
first  board  to  be  produced.  Proceedings  were  begun  to  cause  him  to 
recognize  that  board  and  to  put  these  returns  in  their  hands.  There 
had  been  two  boards  constituted.  In  order  to  put  an  end  to  all  dis 
cussion  on  that  subject,  within  a  few  days — four  or  five  days — after 
the  service  of  the  bill  he  signed  and  promulgated  that  act  of  1872 
which  repealed  all  acts  and  parts  of  acts  in  conflict  with  or  relating 
in  any  manner  to  it. 

He  had  not,  in  my  judgment,  the  slightest  title  to  appoint  the  sec 
ond  board,  because  that  board  was  to  be  appointed  by  the  State  sen 
ate  ;  but  the  other  board  was  certainly  extinguished,  because  that  act 
repealed  the  act  in  which  it  had  its  existence  and  which  gave  it  any 
power.  The  committee  of  the  Senate  of  the  United  States  which  in 
vestigated  the  subject  apparently  recognized  his  power  to  fill  the 
board  under  the  second  act.  The  first  board  was  certainly  annihi 
lated  ;  and  it  was  held  that  he  might  fill  the  vacancy,  as  it  was 
called,  that  the  act  had  appointed  the  senate  to  fill.  They  examined 
it.  Regular  certificates  and  regular  votes  were  sent  to  the  senate ; 
but  it  appeared  in  proof  that  Warmoth's  clerks  had  done  all  the  can 
vassing  that  was  done  and  furnished  all  the  estimates  that  were 
made ;  that  the  returning  board  then,  if  it  were  a  good  returning 
board,  had  nothing  to  do  with  the  canvassing  and  compilation  of 
votes  according  to  the  statute.  Thereupon  the  senate,  in  a  very  clear 
opinion,  and  with  perfect  logic  in  its  conclusion,  said  that  it  would 
not  receive  a  return  computed  and  collected  in  that  manner,  even 
though  the  office  had  been  accepted  by  the  electors  claiming  to  have 
been  chosen  and  their  votes  had  been  regularly  returned. 

That  case  is  parallel  with  the  case  we  make  before  the  Commission. 
Tho  case  we  make  before  you  is  that  the  returning  board  appointed 
by  that  act,  and  required  by  their  oath  of  office,  which  defined  their 
powers  with  perfect  precision,  to  canvass  and  compile  the  original 
returns,  never  made  such  a  canvass  ;  we  say  that  that  compilation 
never  took  place  ;  that  those  original  returns  were  thrown  aside  and 
another  paper,  called  by  some  of  the  witnesses  a  contabulated  state 
ment,  substituted.  It  was  so  called  by  a  member  of  that  board  before 
a  committee  of  Congress.  Ho  said  they  never  examined  any  paper 
but  the  contabnlated  statement  of  the  supervisors  ;  and  all  of  them 
concur  in  the  fact  that  a  compilation  and  canvass  of  the  commis 
sioners'  returns  was  never  made.  If  the  opinions  contained  in  the 
report  to  which  I  have  alluded,  clearly  and  distinctly  expressed  and 
adopted  by  a  very  large  majority  of  the  Senate,  have  any  weight  as 
authority,  the  whole  weight  of  that  authority  is  in  favor  of  the  prop 
osition  I  maintain. 

Proceeding  with  the  constitutional  clause,  the  State  appoints  elect 
ors  in  such  manner  as  the  Legislature  may  direct.  Of  course  that 
comprehends  all  the  directions  of  the  Legislature.  "The  manner" 
of  an  election  includes  all  the  regulations  leading  to  and  proceeding 
to  carry  out  an  election  ;  and  those,  I  say,  are  all  examinable  here. 
Then  the  twelfth  amendment  becomes  a  part  of  it. 

The  learned  counsel  who  argued  last  is  unable  to  tell  whatf  sort  of 
a  creature  an  elector  is.  I  am  not  sure  that  in  his  conception  he  is  a 
human  being.  He  need  not  be  a  citizen  of  the  United  States  or  of 
the  State ;  he  is  not  an  officer  of  tho  United  States ;  he  is  not  an  offi 
cer  of  the  State ;  but  whatever  he  be,  tho  Constitution  of  the  United 
States  having  obtained  his  appointment,  not  according  to  any  State 
power,  not  according  to  any  State  direction,  the  State  getting  the 
power  to  appoint  from  the  Constitution,  the  Legislature  getting  the 
power  to  direct  from  the  Constitution,  those  directions  become  a  part 
of  this  Constitution  ;  and  the  power  to  direct  being  so  derived  is  ex 
aminable  by  the  superior  authority  and  if  conformable  to  the  Con 
stitution  the  directions  are  as  if  they  had  been  written  in  the  Con 
stitution. 

He  then  becomes  an  elector  in  themanner  and  by  the  process  directed 
by  the  Constitution  of  the  United  States,  and  ho  comes  to  perform 
his  duty,  and  he  is  to  perform  his  duty  by  making  votes  and  sending 
lists  to  this  body,  and  at  a  certain  day  this  body  meets,  opens  the 
votes,  and  is  to  count  the  voices.  If  those  voices  have  any  uncertain 
sound;  if  they  are  not  the  clear,  full,  sonorous  voice  of  a  State  coming 
to  the  assembly  of  the  States-on  the  one  hand  and  the  assembly  of  the 


112 


ELECTORAL  COMMISSION". 


peop]e  on  the  other,  they  will  not  hearken,  they  will  not  accept  the 
treble  voice  of  Jacob  if  it  comes  in  subtle  form  clothed  in  a  garment 
not  suitable.  It  must  be  a  lawful,  legitimate  voice  before  they  will 
give  any  hearkening  to  it.  This  being  so,  if  it  be  doubtful,  if  it  be 
uncertain,  then  the  power  and  the  duty  and  the  obligation  rest  upon 
them  to  do  it,  for  how  else  can  it  be  done  ?  Would  the  people  of  the 
United  States  agree  that  the  capacity  of  the  persons  chosen  for  electors 
should  bo  determined  by  thirty-eight  different  supreme  courts  or  the 
circuit  courts  that  exist  through  thirty-eight  States  ?  Would  the 
judgment  of  any  Stato  court  bo  accepted  as  such  a  judgment  ought 
to  be  accepted ;  that  is,  in  the  fullness  of  its  cordial  reception — would 
it  be  accepted  as  irrefutable  proof  by  the  people  of  the  United  States  ? 
Would  they  consent  that  the  gentlemen  of  this  Commission  or  the 
two  Houses  should  look  to  the  transcript  of  a  record  certified  from  a 
circuit  court  in  Florida  or  Colorado  as  determining  the  result  of  an 
election  and  according  to  the  result  of  their  election  receiving  the 
votes  of  such  parties  1  It  is  perfectly  evident  that  no  such  accept 
ance  could  possibly  be  given. 

Seventy-five  or  eighty  years  ago,  in  the  infancy  of  the  Republic, 
when  the  history  of  every  State  and  the  name  of  every  prominent 
man  was  known  to  the  whole  country,  the  character  of  its  tribunals 
was  ascertained,  and  there  was  entire  confidence  among  the  bar ;  then, 
possibly,  a  State  tribunal  might  have  commanded  some  degree  of 
respect  for  its  decision.  But  now  when  the  breadth  of  a  continent 
separates  one  State  from  another ;  when  it  is  very  hard  to  carry  in 
your  minds  the  names  of  the  States,  and  very  few  of  us  can  state 
exactly  where  they  are;  under  such  circumstances  it  is  impossible  for 
the  States  to  exercise  such  a  power.  Where,  then,  is  it  proper  that 
such  a  power  should  be  placed  ?  I  know  the  enormous  difficulty  that 
arises  out  of  its  deposit  here  because  of  the  force  of  partisanship,  the 
diversity  of  interest,  the  jealousy  of  the  various  parts  of  the  country, 
and  various  other  considerations.  Thereare  objections  to  it,  but  whore 
else  can  you  place  it  ?  If  the  assemblies  of  the  States  and  the  rep 
resentatives  of  the  people  be  entirely  unfit  and  incapable,  where  else 
are  you  to  look  for  fitness  and  capacity,  coupled  also  with  power  ? 
Where  else  will  every  man  in  the  United  States  be  represented  in  the 
final  decision  ?  In  the  two  Houses  every  man  in  the  United  States 
has  some  measure  of  representation ;  in  the  Senate  every  State  stands 
on  an  equality  ;  and  if  bodies  thus  composed  be  unfit  and  incapable, 
where  else  can  you  find  a  body  to  make  the  depository  of  this  last 
power  t 

We  learn  a  great  deal,  Mr.  President  and  gentlemen,  from  the  ex 
perience  of  our  mother-country.  Her  institutions  have  been  growing 
up  for  hundreds  of  years,  and  the  vicissitudes  and  changes  in  them 
have  been  the  result  of  the  vicissitudes  and  changes  in  the  condition 
of  the  people.  The  learned  counsel  in  speaking  of  a  member  of  Par 
liament  said  the  returns  were  made  into  Parliament ;  that  the  writs 
came  there  ;  that  had'  they  been  made  elsewhere  the  returns  would 
have  been  exauiinable  where  the  writ  was  returned.  That  was  pre 
cisely  what  James  I  said  in  a  famous  incident  in  history,  reported 
in  2  State  Trials.  James  I  in  his  proclamation  for  the  convention 
of  his  first  Parl lament  lectured  the  people  as  to  what  sort  of  Parlia 
ment  ho  wanted.  He  did  not  want  any  outlaws  or  bankrupts,  among 
other  proscribed  classes.  In  a  sharply  contested  election  Sir  Francis 
Goodwin  was  elected,  and  he  was  under  a  civil  sentence  of  outlawry. 
The  king  took  that  to  bo  a  base  affront  on  his  proclamation.  The 
Lords  sent  down  to  the  Commons  a  message  that  they  desired  to  have 
a  conference  on  the  subject ;  and  in  the  committee  of  the  Lords  were 
nine  earls,  one  viscount,  six  bishops,  and  thirteen  barons,  who  were 
attended  by  two  lord  chief-justices,  four  judges,  Mr.  Sergeant  Crook, 
and  Mr.  Attorney-General,  the  attorney-general  being  Coke.  They 
sent  for  the  Commons  to  meet  them  and  the  Commons  said  they  had 
no  business  with  them  on  that  subject;  that  it  was  the  privilege  of 
the  House  of  Commons  to  examine  its  own  returns.  Then  the  king 
directly  interfered.  They  sent  a  committee  of  sixty  to  wait  upon  the 
king,  and  the  king  told  them : 

His  Majesty  answered:  Ho  was  loath  he  should  ho  forced  to  alter  his  tnno;  and 
that  ho  should  now  change  it  into  matter  of  grief  by  way  of  contestation.  Ho  did 
sample  it  to  the  murmur  and  contradiction  of  the  people  of  Israel.  He  did  not  at 
tribute  the  cause  of  Jiis  grief  to  any  purpose  in  the  house  to  offend  him ;  but  only 
to  a  mistaking  of  the  law.  For  matters  of  fact,  ho  answered  them  all  particularly. 
Inavxpr  his  part,  ho  was  indifferent  which  of  them  were  chosen,  Sir  John  or 
bir  Francis;  that  they  could  suspect  no  special  affection  in  him,  because  this 
was  a  counselor  not  brought  in  by  himself.  That  ho  had  no  purpose  to  impeach 
their  privilege;  hut  since  they  derived  all  matters  of  privilege  from  him  and  by 
his  grant,  ho  expected  they  should  not  be  turned  against.  That  there  was  no  prec 
edent  did  suit  this  case  fully:  Precedents  in  the  times  of  minors,  of  tyrants,  of 
women,  of  simple  kings,  not  to  be  credited,  because  for  some  private  ends'.  By  the 
law  this  house  ought  not  to  meddle  with  returns,  being  all  made  into  tho  chancery, 
and  are  to  bo  corrected  or  reformed  by  that  court  only,  into  which  they  are  re 
turned.  (35  Hen.,  C.)  It  was  the  resolution  of  all  the  fudges  that  matter  of  out 
lawry  was  a  sufficient  cause  of  dismission  of  any  member  out  of  tho  house. 

Tho  Commons  made  answer,  and  finally  they  went  to  their  house 
and  reduced  their  reasons  to  writing  :< 

The  reasons  of  the  proceeding  of  tho  house  in  Sir  Francis  Goodwin's  case,  penned 
by  the  committee,  wore,  according  to  former  order,  brought  in  by  Mr.  Francis 
Moore  and  road  by  tho  clerk,  directed  in  form  of  a  petition. 

In  the  petition,  they  said  that  every  Parliament  writ  contained  this 
clause : 

Etdtcttonem  tnam,  in  plr.no  comitatu  factum  distincte  et  apcrle  sub  siqillo  tun  ct 
sti/Mu  eorum  </wi  electioni  illi  interfuerint,  nobis  in  canccllarium  nostrum  ad  diem 
et  locum  in  brevi  content  certijices  indilate. 


That  they  should  return  the  writ  to  tho  chancellor.  The  Commons 
said  that  there  was  a  period  when  that  was  the  case  : 

And  also  the  Commons,  in  the  beginning  of  every  Parliament,  have  over  used  to 
appoint  special  committees,  all  the  Parliament-time,  for  examining  controversies 
concerning  elections  and  returns  of  knights  and  burgesses,  during  which  timo  tho 
writs  and  indentures  remain  with  tho  clerk  of  tho  Crown,  and  after  the  Parliament 
ended,  and  not  before,  are  delivered  to  the  clerk  of  the  petty-bag  in  chancery, 
to  bo  kept  there ;  which  is  warranted  by  reason  and  precedents  :  lieason,  for  that 
it  is  fit  that  the  returns  should  bo  in  that  place  examined,  where  the  appearance 
and  service  of  tho  writ  is  appointed.  The  appearance  and  service  is  in  Parliament, 
therefore  the  return  oxaminable  in  Parliament. 

From  that  time  forth  the  Commons  have  been  in  the  possession  of 
that  privilege,  and  for  a  long  time  the  privilege  was  greatly  abused ; 
but  in  1774  a  law  placed  it  in  the  hands  of  special  committees  or 
ganized  for  the  purpose  of  giving  judicial  decisions  upon  those  re 
turns.  Do  Lolme  says  of  that  law  of  Mr.  Granville,  that  it  was  "  ono 
of  those  victories  which  the  Parliament  from  time  to  time  gains  over 
itself,  in  which  the  members,  forgetting  all  views  of  private  ambition, 
only  thought  of  their  interest  as  subjects." 

Now,  I  say  that  the  Constitution  of  the  United  States  obviously  in 
tended  when  these  returns  were  brought  to  the  two  Houses  of  Con 
gress,  representing  as  they  did  the  legislative  department  of  the  Gov 
ernment,  and  their  business  being  to  furnish  an  executive  head,  with 
out  which  no  law  could  be  passed  and  no  administration  conducted, 
that  these  two  Houses  should  examine  fully  and  entirely,  and  jnstso 
far  as  it  was  necessary  ascertain  that  there  was  a  concurring  will  iu 
the  appointment  of  a  majority  of  the  electors.  That  was  the  ques-' 
tion  to  be  submitted  to  and  determined  by  them,  and  until  that  decision 
was  made  by  the  two  Houses  there  could  be  no  President  appointed  by 
electors,  no  President  could  have  any  commission  from  any  source.  He 
became  the  President  of  the  United  States  of  America  solely,  exclu 
sively  by  the  count  made  by  the  two  Houses  and  their  certificate  that 
he  had  received  a  majority  of  all  the  electors ;  and  before  they  can  be 
possibly  required  to  make  any  such  judgment,  they  are,  in  tho  neces 
sity  of  the  case,  bound  to  find  all  the  just  and  proper -grounds  on 
which  such  a  judgment  shall  be  based.  Hearu  gives  a  very  interest 
ing  account  of  tho  struggle,  lasting  more  than  a  century,  of  the  Com 
mons  to  got  into  the  position  which  they  now  occupy,  and  in  the  work 
called  Hearn's  Government  of  England,  discoursing  on  this  case,  ho 
says: 

Such  a  power  as  that  claimed  by  the  Crown  was  manifestly  fatal  to  tho  intelli 
gent  action  of  tho  House  of  Commons.  This  truth  seems  to 'have  been  fully  rec 
ognized  by  all  parties. 

I  return  to  the  point  where  I  commenced,  to  the  inquiry  in  respect 
to  the  directions  made  by  the  State  of  Louisiana  in  reference  to  the 
election  of  President  and  Vice-President.  I  shall  not  follow  the  dis 
cussion  iu  respect  to  the  acts  of  tho  Legislature  and  whether  the  act 
of  tho  Legislature  of  1868  has  been  repealed  or  not.  I  will  come  di 
rectly  to  the  question,  assuming  it  to  be  true  for  the  present  that  tho 
act  of  1872  fully  provides  for  the  election  of  electors  for  President  and 
Vice-President. 

I  call  your  attention  to  the  oath  of  office  that  the  members  of  the  re 
turning  board  are  to  take,  found  on  page  96  of  the  compilation  printed 
by  order  of  the  Commission,  tho  latter  part  of  section  2  of  the  act  of 
1872: 

I,  A  B,  do  solemnly  swear  (or  affirm)  that  I  will  faithfully  and  diligently  per 
form  the  duties  of  a  returning  officer  as  prescribed  by  law  ;  that  I  will  carefully 
and  honestly  canvass  and  compile  the  statements  of  the  votes,  and  make  a  true  and 
correct  return  of  the  election :  So  help  me  God. 

What  statements  of  votes  ?  That  is  prescribed  in  the  succeeding 
sentence : 

Within  ten  days  after  the  closing  of  the  election  said  returning  officers  shall  meet 
in  Now  Orleans  to  canvass  and  compile  the  statement  of  votes  made  by  the  com 
missioners  of  election,  ami  make  returns  of  the  election  to  tho  secretary  of  state. 
They  shall  continue  in  session  until  such  returns  have  been  compiled. 

Therefore  it  is  defined  in  the  following  sentence  that  the  statements 
of  votes  made  by  the  commissioners  of  election  are  tho  statements 
that  tho  members  of  the  board  have  sworn  to  compile,  and  they  aro 
the  only  papers  that  are  referred  to  or  mentioned  in  that  oath  of 
office.  They  swear  to  "  carefully  and  honestly  canvass  and  compile 
tho  statements  of  the  votes  and  make  a  true  and  correct  return." 

It  is  offered  on  our  part  to  prove  that  they  never  canvassed  and 
compiled  a  single  return  made  by  the  commissioners  of  election.  As 
I  mentioned  before,  they  had  a  " contabulated  statement"  of  tho 
supervisors,  which  was  a  secondary  paper ;  and  hero  it  may  bo  proper, 
and  perhaps  in  answer  to  a  good  deal  of  tho  tirade  that  has  been 
spoken  on  tho  other  side  in  reference  to  affairs  in  Louisiana,  it  would 
be  right  forme  to  toll  you  precisely  how  this  election  camo  about  and 
who  were  tho  persons  that  were  watching  the  precincts  and  controll 
ing  the  election. 

You  will  perceive  that  there  is  a  supervising  registrar  appointed  by 
the  governor  of  the  State,  that  governor  being  then  a  candidate  for 
elector  and  eventually  a  candidate  for  Senator  to  the  Congress  of  tho 
United  States,  which  since  this  election  he  has,  in  some  manner  or 
other,  got  some  sort  of  election  for  or  title  to.  Fifty-seven  parishes 
in  the  State  and  eighteen  or  twenty  wards  in  tho  city  of  New  Orleans 
each  have  a  supervising  registrar.  The  supervising  registrar  has  the 
absolute  power  to  reject  or  admit  any  voter  on  the  list.  The  law,  as 
you  will  perceive,  prohibits  mandamus,  injunction,  or  any  interfer 
ence  of  the  courts  with  his  function,  and  prescribes  that  his  judgment 
shall  bo  absolutely  conclusive  upon  the  capacity  of  giving  a  vote. 


ELECTORAL  COMMISSION. 


113 


That  supervisor  of  registration  in  each  parish  appoints  three  com 
missioners  at  each  poll.  He  is  required  to  take  men  of  fair  standing 
in  their  parties,  so  as  to  make  something  like  afair  representation.  I 
will  assume  that  he  takes  two  from  his  own  party  and  one  from  the 
other.  There  are  over  seven  hundred  polling-places  in  the  State,  in 
round  numbers.  There  are,  then,  twenty-one  hundred  persons  in  all, 
fourteen  hundred  of  them  of  one  party,  and  those  men  are  to  take  the 
vote  from  the  hands  of  the  voter,  and  it  is  a  criminal  offense  for  any 
body  else  to  touch  the  vote  in  its  passage  from  the  voter's  hand  into 
the  box.  There  are  fourteen  hundred,  then,  members  of  the  super 
visor's  party  distributed  over  the  different  polls  of  the  State.  In  ad 
dition  to  that,  he  has  the  power  to  appoint  a  special  constable  to 
attend  the  polls  and  to  perform  all  the  duties  that  are  required  of  him 
by  the  commissioners ;  he  may  appoint  just  as  many  as  he  pleases, 
"  one  or  more  "  is  the  language  of  the  law,  say  eight  hundred.  That 
makes  twenty-nine  hundred  persons. 

In  addition  to  this  the  United  States  court  in  New  Orleans  ap 
pointed  sixteen  hundred  supervisors,  two  for  each  poll.  In  addition 
to  that  the  marshal  of  the  district  appointed  eight  hundred  deputies 
for  New  Orleans  and  fifteen  hundred  deputies  for  the  country,  to  at 
tend  the  polls  in  the  country.  In  addition  to  that,  under  the  opinion 
of  the  Attorney-General  of  the  United  States,  largo  detachments  of 
the  Army  were  placed  in  various  parts  of  the  States,  so  that  they 
might  be  "bystanders,"  I  think  was  the  language  of  the  opinion,  to 
serve  as  a  sort  of  posse  comitatus  in  the  event  that  the  marshal  should 
find  any  use  for  that  sort  of  assistance. 

Taking  out  the  Army,  there  were  about  seventy-five  hundred  per 
sons  who  were  employed,  lawfully  or  unlawfully,  but  still  with  a 
show  of  authority,  all  coming  either  from  the  governor  or  his  friends. 
They  were  there  engaged  in  watching  the  polls.  Now  is  this  Com 
mission  astonished,  under  that  sort  of  array,  that  there  was  not  from 
a  single  poll,  unless,  perhaps,  one,  a  protest  or  report  by  any  commis 
sioner  of  election  that  there  was  riot,  tumult,  intimidation,  confusion, 
or  any  thing  else  that  the  statute  speaks  of  at  his  box?  Nor  was 
there,  so  far  as  I  have  been  informed,  a  single  report  from  any  super 
visor  of  registration  that  there  was  tumult,  riot,  or  interference,  or 
obstruction  in  the  performance  of  his  duty  as  registrar.  On  the  con 
trary,  on  the  registration-books  there  are  225,000  voters  registered  and 
the  census  of  the  State  was  827,855  population.  Of  the  votes  appear 
ing  on  the  face  of  the  returns  there  were  83,000  for  one  ticket  and 
75,000  for  the  other.  I  undertake  to  say  that  two-thirds  of  the  States 
of  this  Union  that  voted  at  that  election  have  not  shown  the  same 
quantity  of  voting  population  in  comparison  with  the  population 
recorded  on  the  census.  I  have  been  informed  that  there  is  not  a 
single  State. 

With  these  facts  standing  here  upon  the  face  of  the  law,  clearly  to 
be  discerned  and  ascertained,  with  these  votes  given,  no  scene  of 
tumult,  no  scene  of  confusion  reported  by  the  only  authority  that 
could  report  it,  I  ask  on  what  foundation,  on  what  show  of  justice, 
right,  or  propriety,  have  this  sort  of  denunciations  of  the  people  and 
society  of  Louisiana  been  ringing  in  the  ears  of  this  Commission  and 
the  persons  here  present? 

I  can  tell  you  another  fact.  I  can  tell  you  a  fact  more  startling 
than  any  fact  which  has  been  reported  here  and  which  may  serve  at 
the  next  election  for  the  campaign  speeches  of  that  time.  On  the 
'30th  of  October  there  issued  out  of  the  circuit  court  of  the  United 
States  at  New  Orleans  ten  thousand  and  upwards  of  warrants  of 
arrests  to  seize  ten  thousand  different  individuals,  inhabitants  of  the 
city  of  New  Orleans,  for  having  falsely  registered  themselves  in  1874 
as  competent  voters.  They  embraced  some  of  the  most  respectable 
men  in  the  city,  my  friend  and  family  physician  among  the  number  ; 
one  of  our  delegates  in  Congress  among  the  number  of  those  arrested 
for  fraudulent  registration.  That  is  quite  equal  to  the  two  thousand 
fights  and  murders  and  bloodshed  we  have  heard  of.  A  whole  com 
munity,  comprising  its  very  best  citizens,  apparently  best  in  stand 
ing,  in  property,  in  social  position,  startled  by  warrants  of  arrest  to 
seize  them  and'bring  them  before  an  officer  of  the  United  States  court 
for  fraud.  Never  was  such  a  picture  of  any  community  as  that. 
There  were  ten  thousand  lies  sworn  to  in  order  to  procure  those  war 
rants.  There  was  not  a  scintilla  of  proof  nor  any  desire  to  have  any 
proof.  One  thousand  three  hundred  and  sixty  cases  were  tried  and 
dismissed  on  sight ;  but  it  served  the  purpose.  The  affidavits  were 
made  by  two  men — policemen  all  of  them.  I  have  read  a  portion  of 
the  affidavits  myself,  piled  up  in  the  court  covering  a  table  so  high. 

Mr.  Commissioner  THURMAN.  Were  the  whole  10,000  men  ar 
rested  on  those  affidavits  ? 

Mr.  CAMPBELL.  Yes,  sir.  Two  policemen  in  each  ward  made 
the  affidavits,  I  am  advised.  On  the  affidavits  of  those  two  police 
men  a  red  line  was  drawn  around  the  names  of  the  citizens  on  the 
registration-list,  and  several  thousand  voters  were  unable  to  restore 
their  names  to  that  list  so  as  to  vote.  The  commissioner  who  issued 
those  papers  brought  his  account  into  court  for  fifteen  thousand  and 
odd  dollars  against  the  United  States  for  his  services,  and  Judge 
Billings  told  him  :  "  On  the  face  of  these  papers  there  is  a  gross  fraud 
and  I  will  not  certify  to  a  cent."  That  is  the  character  of  the  pro 
ceeding. 

I  ask  if  any  such  thing  had  happened  in  the  sober,  steady  States 
of  Vermont  or  Connecticut,  if  ten  thousand  writs  had  been  issued 
charging  men  with  crimes,  what  would  have  been  the  sentiment  and 
•what  would  have  been  the  act  of  those  people ?  Would  they  have 

8 


been  satisfied  to  go  up  and  clear  themselves  of  the  accusation  and 
return  quietly  home  ?  I  have  the  opinion  that  the  inhabitants  of  the 
State  of  Ethan  Allen  would  have  been  rather  violent ;  at  all  events 
there  would  have  been  ten  thousand  suits  against  the  officers  if  there 
had  been  any  means  of  making  them  answer  for  that  sort  of  dealing ; 
but  they  were  perfectly  irresponsible,  they  were  mere  tools;  I  ques 
tion  whether  they  understood  that  there  was  any  impropriety  in  the 
proceeding  at  all.  But  I  think  that  is  sufficient  to  show  a  perfect 
answer  to  those  accusations  of  the  wrong  that  was  done  some  four 
or  five  or  six  years  ago,  based  on  newspaper  statements. 

Of  course  neither  one  of  these  facts  goes  in  the  least  toward  solv 
ing  the  problem  before  this  tribunal.  That  problem  is  whether  these 
commissioners  of  elections'  returns  have  been  examined  and  whether 
it  is  necessary  for  their  examination  to  take  place  before  a  valid  re 
turn  can  be  made.  I  hardly  feel  that  I  am  doing  justice  to  the  Com 
mission  and  adding  anything  to  that  which  has  been  said  on  this  sub 
ject,  not  simply  said  by  my  associates,  but  which  has  been  said  in  the 
Congress  of  the  United  States  in  discussing  this  very  election  law, 
which  was  said  with  so  much  force  in  the  report  made  to  the  House 
of  Representatives  and  that  has  been  read  here,  and  said  with  so 
much  force  in  the  discussion  in  1872  and  1873  and  so  lately  as  in  1875, 
and  in  which  there  appeared  to  be  no  diversity  of  opinion  between 
the  different  members  of  the  Senate  who  compose  this  Commission 
or  the  members  of  the  House  who  compose  this  Commission.  The 
discussion  both  in  the  House  and  in  the  Senate  seemed  to  be  concur 
rent  to  the  same  result  in  reference  to  the  construction  of  this  law. 

Why,  sir,  if  a  commission  is  charged  to  do  a  duty  in  a  particular 
manner,  in  a  specified  manner  and  none  other,  if  their  oath  be  to  do 
it  in  that  manner  and  their  commission  is  to  do  it  in  that  manner  and 
none  other,  how  can  any  effect  be  given  to  the  return  unless  they  fol 
low  that  commission  ?  The  whole  frame  of  this  act  is  to  lift  up  into 
prominence  and  supremacy  the  original  returns  made  by  the  commis 
sioners  of  election,  and  none  others.  Without  those  returns  the  re 
turning  board  is  not  allowed  to  advance  a  step.  "The  first  thing  you 
are  to  do,"  says  the  act  to  them,  "  is  to  ascertain  from  those  returns 
which  are  contested  and  which  are  not  contested  ;"  and  in  this  case 
neither  the  contested  nor  the  uncontested  returns  have  been  examined 
and  reported  upon.  In  a  late  case,  in  1875,  reported  in  10  Law  Re 
ports,  Common  Pleas,  page  744,  Lord  Chief-Justice  Coleridge  says : 

As  to  the  second,  i.  e.  that  the  election  was  not  really  conducted  under  the  sub 
sisting  election  laws  at  all,  wo  think,  though  there  was  an  election  in  the  sense  of 
there  Laving  been  a  selection  by  the  will  of  the  constituency,  that  the  question 
must  in  like  manner  be  whether  the  departure  from  the  prescribed  method  of  elec 
tion  is  so  great  that  the  tribunal  is  satisfied,  as  matter  of  fact,  that  the  election 
was  not  an  election  under  the  existing  law.  It  is  not  enough  to  say  that  great  mis 
takes  were  made  in  carrying  out  the  election  under  those  laws;  it  is  necessary  to 
be  able  to  say  that,  either  willfully  or  erroneously,  the  election  was  not  carried  out 
under  those  laws,  but  under  some  other  method. 

Mr.  Commissioner  EDMUNDS.  In  what  form  did  that  case  arise, 
Judge  Campbell  ? 

Mr.  CAMPBELL.  It  arose  on  an  action  for  submitting  an  election 
under  a  late  act  of  Victoria  to  the  judgment  of  the  court  composed  of 
the  Right  Honorable  Lord  Coleridge,  Chief-Justice,  and  Judges  Keat 
ing,  Brett,  Grove,  Denman,  Archibald,  Huddleston,  and  Lindley. 

Mr.  Commissioner  EDMUNDS.     It  is  under  the  English  statute. 

Mr.  CAMPBELL.  Yes,  sir  ;  the  ballot  act.  The  language  which  I 
have  read  to  the  court  applies  precisely  to  the  act  of  the  returning 
officers  in  this  case. 

For  instance,  if,  during  the  time  of  the  old  laws,  with  the  consent  of  a  whole  con 
stituency,  a  candidate  had  been  selected  by  tossing  up  a  coin,  or  by  the  result  of  a 
horse-race,  it  might  well  have  been  said  that  the  electors  had  exercised  their  free 
will,  but  it  should  have  been  held  that  they  had  exercised  it  under  a  law  of  their 
own  invention,  and  not  under  the  existing  election  laws,  which  prescribed  an  elec 
tion  by  voting.  So  now,  when  the  election  is  to  bo  an  election  by  ballot,  if,  either 
willfully  or  erroneously,  a  whole  constituency  were  to  vote,  but  not  by  ballot  at  all, 
the  election  would  bo  a  free  exercise  of  their  will,  but  it  would  not  be  an  election 
by  ballot,  and  therefore  not  an  election  under  the  existing  election  law.  But  if  in 
the  opinion  of  the  tribunal  the  election  was  substantially  an  election  by  ballot, 
then  no  mistakes  or  misconduct,  however  great,  in  the  use  of  the  machinery  of  the 
ballot  act,  could  justify  the  tribunal  in  declaring  the  election  void  by  the  common 
law  of  Parliament. 

Now  apply  that  to  the  case  of  the  returning  board.  The  returning 
board  has  a  prescribed  duty  to  perform  under  the  act  of  its  organi 
zation. 

Mr.  Commissioner  BRADLEY.  Judge  Campbell,  was  that  tribunal 
a  tribunal  erected  for  the  trial  of  elections  of  members  of  Parliament  ? 

Mr.  CAMPBELL.  There  is  a  provision  for  the  election  of  members 
of  Parliament.  This  does  not  arise  in  the  case  of  an  election  for 
Parliament. 

Mr.  Commissioner  BRADLEY.  It  is  for  the  trial  of  the  election  of 
other  officers  as  well  ? 

Mr.  CAMPBELL.  Yes,  sir.  This  was  a  municipal  election.  They 
have  a  jurisdiction  over  elections  of  Parliament;  and  they  certify 
their  opinion  ;  but  this  is  not  such  a  case. 

Mr.  Commissioner  BRADLEY.  Are  the  operative  words  of  the 
section  of  the  act  which  confers  the  power  on  the  tribunal  in  that 
case,  before  you  ? 

Mr.  CAMPBELL.  No,  sir.  The  question  was  under  the  ballot  act. 
There  were  some  instructions  given  to  the  returning  officers  which 
would  give  you  the  information  you  ask  for;  I  will  read  them  from 
page  738  of  the  volume  to  which  I  have  referred : 

The  returning  officer  will  attend  at ,  at  four  o'clock  p.  ra.  on  the  day  of 

election  to  receive  the  ballot-boxes  and  papers  from  the  officers ;  when  all  the  boxes 
have  beeu  delivered  to  him,  he  will  then— 


114 


ELECTORAL  COMMISSION. 


1.  Open  the  ballot-boxes. 

2.  Count,  the  number  of  ballot-papers  in  each  bos  separately,  and  record  the  num 
ber  ou  the  inclosed  form. 

3   Mix  all  the  ballot-papers  together,  (keeping  their  faces  upward.) 

4.  Sort  into  separate  packets  the  votes  for  each  candidate,  and  the  doubtful  votes. 

5.  Examine  the  doubtful  votes,  and  reject  for  the  following  reasons  only  : 

l!  For  want  of  official  mark  ;  2.  Voting  for  more  candidates  than  entitled  to ;  3. 
"Writing  or  mark  by  which  voter  could  be  identified ;  4.  Unmarked  or  void  for  un 
certainty. 

6.  Count  the  votes  for  each  party.     [It  is  very  convenient  to  arrange  them  in 
heaps  of  twenties.] 

7.  Seal  up  in  separate  packets:  1.  The  counted  ballot-papers;  2.  a  ho  rejected 
ballot-papers. 

[The  packets  of  tendered  ballot-papers,  marked  copy  of  ward-list,  and  counter 
foils,  must  not  be  opened.]  • 

8.  Verify  tbo  presiding  officer's  ballot-paper  accounts. 

9.  Fill  up  and  sign  return  on  the  printed  forms. 

I  refer  to  this  case  for  the  principle  which  was  announced.  There 
had  been  an  election  and  there  had  been  a  return,  and  there  was  a 
contest  as  to  the  election.  The  principle  is : 

To  render  an  election  void  tinder  the  ballot  act,  by  reason  of  a  non-observance  of 
or  non-compliance  with  the  rules  or  forms  given  therein,  such  non-observance  or 
non-compliance  must  bo  so  great  as  to  satisfy  the  tribunal  before  which  the  validity 
of  tlio  election  is  contested  that  the  election  has  been  conducted  in  a  manner  con 
trary  to  the  principle  of  an  election  by  ballot,  and  that  the  irregularities  complained 
of  did  affect  or  might  have  affected  the  result  of  the  election. 

And  so  I  say  in  regard  to  the  returning  board,  that  if  this  returning 
board  proceeded  in  a  manner  which  was  in  contradiction  to  the  let 
ter  and  the  spirit  of  the  act,  so  as  to  satisfy  the  revising  tribunal  that 
they  did  not  follow  that  act,  either  from  error  or  from  fraud,  (and  we 
charge  in  this  case  both  error  and  fraud,)  then  the  returns  of  those 
officers  cannot  be  accepted  as  valid  and  proper  returns  under  that  act. 
Let  me  refer  you  to  Adolphus  and  Ellis's  Reports  in  Queen's  Bench, 
new  series,  volume  1,  page  892,  Caudle  vs.  Seymour  ;  and  the  object  of 
the  citation  is  to  show  that  there  must  bo  a  conformity  with  the  di 
rections  of  the  act,  that  a  court  or  tribunal  does  not  acquire  jurisdic 
tion  by  the  rrfere  fact  of  dealing  with  a  case  that  has  some  connection 
with  the  subject  of  the  act,  but  where  the  act  prescribes  a  mode  of 
proceeding  to  an  inferior  court  that  must  be  pursued.  The  syllabus 
of  the  case  is : 

A, justice's  warrant  commanding  a  constable  to  apprehend  and  bring  before  him 
the  body  of  A  15,  to  answer  all  such  matters  and  things  as  on  Her  Majesty's  behalf 
shall  be  objected  against  him  on  oath  by  C  D,  for  an  assault  committed  upon  C 
I),  on,  &c.,  is  bad,  as  not  showing  any  information  on  oath  upon  which  the  war 
rant  issues. 

A  deposition  on  oath,  taken  by  the  justice's  clerk,  the  justice  not  being  present, 
nor  at  any  time  seeing,  examining,  or  hearing  the  deponent,  is  irregular,  and  no 
justification  of  proceedings  founded  upon  it. 

The  judgment  is  this : 

An  affidavit  is  a  document  which  is  to  speak  for  itself,  and  to  avail  or  not,  merely 
according  to  its  contents ;  the  court  does  not  examine  the  party  ;  but,  in  the  case 
of  depositions,  the  magistrate  does  ;  and  I  am  not  aware  that  deputing  that  office 
to  a  clerk  has  over  been  held  equivalent  to  an  examination  by  the  magistrate. 

A  magistrate  has  no  jurisdiction  in  such  a  case  as  this,  without  a  charge  on  oath. 

The  taking  of  affidavits  in  this  court  is  quite  different;  the  act  is  purely  min 
isterial  ;  the  party  says  what  he  pleases,  and  the  effect  of  it  comes  to  bo  considered 
by  the  court  afterward.  But  a  magistrate  taking  depositions  has  a  discretion  to 
exercise ;  he  is  to  examine  the  witness,  hear  his  answers,  and  judge  of  the  manner 
in  which  they  are  given. 

The  act  was  considered  void  and  an  action  of  trespass  was  brought 
against  him.  In  this  case  I  have  communicated  to  the  court  the 
terms  of  the  act  of  1872  which  required  these  persons  to  compile  and 
ranvass  papers  of  a  specific  character,  and  their  whole  duty  is  per 
formed  when  they  canvass  and  compile  those  papers,  and  they  have 
no  other  duty  to  perform  until  they  make  that  canvass  and  that 
compilation.  If  in  making  the  canvass  and  compilation  they  come 
across  a  protest  made  on  the  day  of  the  election  in  the  presence  of  the 
commissioners  and  corroborated  by  three  parties,  and  they  find  in 
that  a  sufficient  warraut  i'or  further  examination  and  necessity  for 
further  examination,  then  they  have  an  independent  and  separate 
duty  to  perform.  And  here  let  me  state  to  the  Commission  that  their 
duty  upon  the  subject  of  intimidation  and  their  power  upon  the  in 
quiry  into  intimidation  is  a  limited  and  special  power.  They  do  not 
have  the  power  to  go  through  the  country  and  examine  whether  there 
was  intimidation  which  kept  persons  from  the  polls,  however  such 
intimidation  may  have  affected  the  election.  They  have  not  power 
to  examine  into  intimidations  or  tumults  or  riots  occurring  at  a  dif 
ferent  place  than  the  place  of  holding  the  election,  nor  at  a  time 
other  than  the  election  day.  It  is  the  interference  on  the  day  of  elec 
tion  by  tumult,  riot,  intimidation,  that  the  commissioners  of  election 
have  the  power  to  report,  and  when,  reported  the  returning  board 
have  the  power  to  examine. 

I  do  not  pretend  to  say  but  what  at  the  common  law  and  under  the 
acts  of  the  Legislature  of  the  State  of  Louisiana  intimidation  and 
threats  and  violence  in  any  form,  corrupting  practices  in  any  form, 
would  invalidate  an  election.  Bin  we  are  not  dealing  with  any  in 
quiries  of  that  kind.  Wo  are  dealing  with  the  powers  of  a  return 
ing  board,  a  special,  limited  commission  addressed,  and  the  manner 
of  performing  that  commission  carefully  and  rigidly  specified.  The 
act  of  Louisiana  is  no  new  act.  Hero  is  an  entire  volume,  an  Elec 
tion  Manual,  and  these  are  the  chapters  contained  in  it  relative  to 
an  election:  "acts  of  agency;  bribery;  conduct;  conveyance;  cor 
ruption  ;  influence  ;  intimidation  ;  fraud,"  &c.,  and  the  most  exten 


sive  and  ramified  inquiries  are  made  there,  and  rules  of  the  strongest 
and  most  rigid  character  in  order  to  secure  purity  in  elections.  Such 
unquestionably  would  be  a  suitable  subject  foi*  examination  upon  a, 
trial  where  a  party  had  received  a  certificate  of  election  from  any  re 
turning  board.  In  the  State  of  Louisiana,  in  the  decisions  contained  in 
the  twenty-fifth  volume  of  annual  reports,  made  in  1872  and  1873,  there 
has  been  a  perfect  abdication  or  rather  abnegation  of  every  sort  of 
jurisdiction  over  elections  in  any  shape,  although  our  intrusion  act 
is  a  literal  copy  from  the  act  of  New  York  and  although  the  opinions 
of  the  courts  of  New  York  have  extended  the  operation,  cf  the  act  to 
every  sort  of  inquiry  in  elections. 

The  supreme  court  in  the  State  of  Louisiana  decided  in  the  decision 
against  Bonuer  that  there  was  no  law  authorizing  the  courts  to  deal 
with  contested  elections,  and  their  decision  was  to  dismiss  the  case 
for  want  of  any  connection  or  control  over  it.  That  was  all  that  is 
contained  in  those  decisions.  But  unquestionably  in  any  well-ordered 
court  no  such  decision  could  possibly  have  been  made,  and  when  those 
opinions  came  before  the  committee  of  the  Senate  (and  the  report  of 
Mr.  Carpenter  was  submitted  several  years  ago)  that  committee  did 
not  hesitate  to  say  that  those  opinions  Avere  contrary  to  law  and  that 
the  law  was  in  the  dissenting  opinion.  In  every  well-ordered  system 
of  jurisprudence,  those  inquiries,  that  delegation  of  power  would  bo 
co-extensive  with  the  limits  ;  and  any  party  who  had  a  title  to  office 
and  wished  to  establish  that  title  against  a  party  who  had  been 
counted  in  unfairly  or  who  had  procured  his  election  unfairly  and  dis 
honestly  ought  to  have  been  heard  ;  but  in  the  state  of  the  law  in 
Louisiana  no  such  case  could  have  been  presented.  I  mean  the  state 
of  the  law  before  that  supreme  court. 

Mr.  Commissioner  STRONG.  Mr.  Campbell,  with  regard  to  a  por 
tion  of  your  argument,  I  should  like  to  ask  a.  question  if  it  will  not 
be  interrupting  you. 

Mr.  CAMPBELL.     Certainly. 

Mr.  Commissioner  STRONG.  What  is  the  position  you  take  in  re 
gard  to  the  power  of  the  State  over  the  final  action  of  its  returning 
board  ?  To  put  the  question  a  little  more  in  the  concrete,  was  it  in 
the  power  of  the  State  of  Louisiana  to  have  directed  the  action  of 
the  returning  board  or  State  canvassing  board  to  have  been  com 
pleted  on  or  before  the  20th  day  of  November  and  was  it  in  the 
power  of  the  State  to  constitute  another  tribunal  to  try  contests  be 
tween  the  two  sets  of  electors  which  claimed  under  the  election  I 

Mr.  CAMPBELL.     Unquestionably,  sir. 

Mr.  Commissioner  STRONG.  Then,  as  I  understand  yon,  you  con 
tend  that  the  power  of  judging  of  the  honesty  or  accuracy  of  the  de 
cision  of  the  returning  board  is  in  the  State. 

Mr.  CAMPBELL.     In  the  case  of  State  officers. 

Mr.  Commissioner  STRONG.     I  am  speaking  of  electors. 

Mr.  CAMPBELL.  That  I  will  come  to  after  awhile.  In  reference 
to  that,  my  own  opinion  is  that  the  State  has  no  jurisdiction  over  the 
elector. 

Mr.  Commissioner  STRONG.  Cannot  review  its  own  election  for 
electors? 

Mr.  CAMPBELL.  It  cannot  review  the  election  for  electors  in  my 
judgment.  I  say  that  the  election  is  to  be  reviewed  and  examined 
finally  by  the  two  Houses  of  Congress  when  their  certificates  of  re 
turns  come. 

Mr.  Commissioner  STRONG.  How  then  could  they  constitute  a 
returning  board  to  make  any  decision  at  all  ? 

Mr.  CAMPBELL.  They  make  a  returning  board  with  a  view  of 
compiling  the  returns.  I  am  speaking  of  the  final  disposition  as  a 
final  determination  on  the  subject  of  the  right  of  an  elector  to  cast  a 
vote.  Perhaps  the  question  is  a  doubtful  one,  and  I  have  not  very 
fully  considered  it;  but  my  view  of  these  electors  under  the  Consti 
tution  is,  that  the  State  is  the  instrument  and  the  agency,  and  its  laws 
are  instrumental  for  the  purpose  of  communicating  to  the  two  Houses 
of  Congress  the  election  of  electors,  and  the  two  Houses  of  Congress, 
in  determining  who  has  a  majority  of  all  the  electors,  necessarily  can 
inquire  whether  those  electors  were  fairly  chosen  or  not. 

Mr.  Commissioner  STRONG.  Pardon  me  for  one  question,  and 
that  is  this:  whether  you  contend  that  Congress  occupies  the  posi 
tion  of  a  tribunal  for  contesting  the  election  of  State  electors,  the 
same  position  which  a  tribunal  for  the  trial  of  contested  elections 
constituted  by  a  State  Avould  have  as  to  any  State  officer  ? 

Mr.  CAMPBELL.     That  Congress  could  ? 

Mr.  Commissioner  STRONG.  Whether  Congress  occupies  that  posi 
tion  ;  in  other  words,  whether  Congress  is  the  tribunal  for  the  trial 
of  contested  elections  of  electors  ? 

Mr.  CAMPBELL.  I  have  no  question  that  Congress  could  create 
a  tribunal  to  inquire  into  the  validity  and  truthfulness  and  regular 
ity  of  any  election  for  electors  for  the  purpose  of  determining  the 
question  whether  the  votes  cast  for  President  and  Vice-President  are 
cast  by  the  men  competent  to  do  so.  It  is  the  only  legitimate  place 
where  such  a  tribunal  could  come  from,  because  the  power  to  be  exer 
cised  by  electors  affects  every  citizen  and  every  interest  in  the  United 
States  ;  every  State  in  this  Union  is  interested  in  that  decision,  and 
no  State  would  be  justified  in  allowing  the  determination  ou  such 
questions  finally  to  rest  in  a  State  tribunal. 

On  the  subject  of  the  value  of  those  certificates  there  is  one  author 
ity  that  I  ask  the  attention  of  the  Commission  to.  It  is  in  7  Lan 
sing's  Reports,  page  725,  and  the  same  case  was  affirmed  by  the  court 
of  appeals,  page  527  of  the  fifty-fifth  volume  New  York  Reports.  I 


ELECTORAL  COMMISSION. 


1 15 


prefer  to  read  from  Lansing  because  it  presents  the  subject  very  suc- 
cintly.  We  have  offered  to  prove  this  certificate  to  be  false.  lu  this 
case  it  is  said : 


as  thoy  are  pezmitted  or  directed  to  certify.  Bat  it  is  only  pnma  facie  evidence,  it 
is  not 'conclusive;  and  like  all  other  merely  presumptive  evidence,  it  is  subject  to 
bo  overcome  or  destroyed  by  better,  higher,  or  more  certain  evidence,  and  may  bo 
entirely  so  overcome  or  impeached.  In  this  country  it  is  the  actual  expressed  will 
of  the  electors,  not  the  certificate  of  inspectors,  that  confers  tho  title  to  an  office. 
It  is  tmth,  not  form,  that  confers  the  right. 

On  another  page : 

"When  the  truth  has  been  so  far  inquired  into  and  ascertained  as  to  show  that  the 
certificate  is  not  true,  can  it  bo  tho  duty  of  tho  court  to  hold  that,  though  false  and 
uncertain,  it  may  still  be  used  as  evidence  ?  Can  such  a  paradox  bo  introduced 
into  the  law  as  that  a  tiling  false  in  fact  may  be  true  as  evidence  ?  Or  this,  that 
an  official  certificate  proved  to  bo  beyond  the  power  of  the  officer  to  make  certain 
in  what  it  contains,  shall  still  be  held  to  bo  certain  because  it  is  certified  ?  I  think 
not.  If  such  rules  are  not  found  to  be  established  by  authority,  surely  they  should 
not  be  now  first  introduced  to  thwart  that  inestimable  right  of'a  freeman,  the  right 
to  hold  an  office  when  such  right  is  proved  by  the  evidence  to  bo  tho  will  of  the 
legal  voters. 

Mr.  Commissioner  EDMUNDS.     How  did  that  case  arise  ? 

Mr.  CAMPBELL.     It  arose  on  a  contest  about  an  election. 

Mr.  Commissioner  BRADLEY.  Under  the  New  York  intrusion 
act  ? 

Mr.  CAMPBELL.  This  action  "  was  in  the  nature  of  a  quo  irar- 
ranto  to  try  the  title  of  the  defendant  to  the  office  of  mayor  of  Al 
bany,  to  which  office  the  defendant  was  declared  to  have  been  elected 
on  the  second  Tuesday  of  April,  1872." 

Mr.  Commissioner  HOAR.  If  it  would  not  be  disagreeable  to  you, 
Judge  Campbell,  I  should  like  to  ask  a  question,  as  I  did  not  pre 
cisely  understand  your  answer  to  Judge  STRONG.  Suppose,  when  in 
the  process  of  counting  the  vote  tho  State  of  Oregon  was  reached, 
proof  should  be  offered  on  behalf  of  one  of  the  candidates  that  at 
every  polling-place  in  the  State  of  Oregon  there  had  been  a  different 
number  of  votes  cast  from  that  certified,  so  as  to  change  the  result 
in  the  State,  do  you  claim  that  it  would  be  the  duty  of  the  two  Houses 
to  panse  in  the  process  of  counting  the  vote  until  both  sides  should 
have  put  in  evidence  on  that  question  and  the  fact  should  have  been 
ascertained? 

Mr.  CAMPBELL.  That  is  not  the  case  I  have  been  arguing  at  all. 
It  is  entirely  outside  of  the  proffer  that  we  have  made  in  respect  to 
evidence. 

Mr.  Commissioner  HOAR.  But  I  think  it  would  perhaps  help  us  to 
understand  your  view  of  the  power  and  duty  of  the  two  Houses,  to 
inquire  whether  you  thought,  if  such  proof  were  proffered  on  behalf 
of  one  of  the  candidates  as  to  what  the  true  vote  was  in  that  State, 
it  would  be  the  duty  of  the  two  Houses  to  pause  in  the  count  until 
that  fact  had  been  settled  ? 

Mr.  CAMPBELL.  If  I  was  a  member  of  one  of  the  two  Houses,  I 
would  give  it  all  the  pause  and  inquiry  that  was  allowed  to  me  aud 
then  I  would  decide  it  according  to  the  result  of  that  conclusion. 

I  present  now  the  question  as  to  tho  objections  that  were  raised  to 
some  of  the  alleged  electors.  The  statute  law  of  Louisiana,  being 
the  registration  act,  provides  : 

That  no  supervisor  of  registration  appointed  under  this  act,  and  no  clerk  of  such 
supervisor  of  registration,  shall  be  eligible  for  any  office  at  any  election  when  said 
officers  officiate. 

We  charge  that  another  party  held  several  offices,  one  of  them  being 
a  senator  of  the  State  Legistaturo  and  therefore  not  eligible ;  holding 
one  office  created  under  the  Constitution,  as  well  as  several  others 
under  tho  law,  they  are  disqualified  under  another  article  of  the  State 
constitution. 

It  was  inquired  yesterday  by  one  of  the  members  of  the  Commission 
if  it  were  competent  for  the  State  to  require  that  an  elector  should  be 
a  citizen  of  tho  State.  The  answer  was,  I  believe,  that  the  State  had 
no  right  even  to  put  that  requisition.  The  State  of  Louisiana  in  the 
act  of  1868  and  in  her  constitution  has  not  only  required  that  he 
should  be  a  citizen  of  the  State,  but  that  he  should  be  an  inhabitant 
of  oue  of  the  congressional  districts.  It  has  declared  that  two  of  the 
electors  shall  be  appointed  electors  at  large.  As  to  them  no  require 
ment  of  residence  is  made  except  in  the  State.  But  six  of  the  eight 
electors  are  required  to  be  inhabitants  respectively  of  the  various 
congressional  districts. 

Mr.  Commissioner  THURMAN.    Are  those  six  chosen  by  districts  ? 

Mr.  CAMPBELL.  No,  sir,  chosen  by  general  ticket ;  'but  one  of 
the  questions  which  occur  in  this  case  is  that  in  one  of  the  districts 
tho  voters  concluded  they  could  only  vote  for  the  two  electors  at 
large  and  the  inhabitant  of  their  own  district,  and  so  neglected  to 
vote  for  any  other  member  on  the  ticket  except  the  two  electors  at 
large  and  their  own  district  elector.  The  returning  board,  under  a 
general  equity  jurisdiction,  concluded  that  that  nieaut  the  whole 
ticket  and  allotted  to  the  other  members  of  the  ticket  just  as  many 
votes  as  had  been  given  to  the  three  in  that  parish. 

Mr.  Commissioner  BRADLEY.     What  was  the  number  of  votes? 

Mr.  CAMPBELL.    Twelve  hundred,  I  think. 

The  PRESIDENT.    Counted  1,200  votes  not  cast  ? 

Mr.  CAMPBELL.  The  exact  figures  are  1,362,  1,334,  1,364,  1,364, 
and  298.  They  did  not  allot  them  impartially,  it  appears.  They  allotted 
some  more  than  the  others,  but  that  was  the  excuse  that  was  made. 


Mr.  Commissioner  EDMUNDS.  Does  that  appear  in  the  eleventh 
point  of  the  offer  of  proof  ? 

Mr.  CAMPBELL.  Yes,  sir;  and  that  is  the  point  that  I  am  now 
making. 

Mr.  Commissioner  EDMUNDS.  I  meant  to  inquire  whether  the 
eleventh  offer  of  proof  is  directed  to  that. 

Mr.  CAMPBELL.  Yes,  sir;  the  point  I  am  making  now  is  on  the 
sixteenth,  seventeenth,  and  eighteenth  pages  of  our  offers: 

Wo  further  offer  to  prove  that  Oscar  Joffrion  was,  on  the  7th  day  of  November, 
A.  D.  1876,  supervisor  of  registration  of  the  parish  of  Pointe  Coupfie,  and  that  he  acted 
and  officiated  as  such  supervisor  of  registration  for  s.iid  parish  at  the  said  election 
for  presidential  electors  on  that  day  ;  aud  that  ho  is  tho  same  porsou  who  acted  as 
one  of  the  electors  for  said  State,  and  on  the  Oih  day  of  December,  A.  D.  1876,  as  an 
elector  cast  a  vote  for  Rutherford  15.  Hayes  for  President  of  the  United  States  and 
for  William  A.  Wheeler  for  Vice-Presidentof  the  United  States. 

And  so  on  tho  following  page  is  the  objection  to  Morris  Marks,  one 
of  the  pretended  electors,  who — 

Was,  ever  since,  has  been,  and  now  is  holding  and  exercising  the  office  of  district 
attorney  of  the  fourth  judicial  district  of  said  State,  aud  receiving  tho  salary  by 
law  attached  to  said  office. 

Again : 


isurch,  ever  since  the  said  rtn  clay  ot  JSoveiuber,  (aud  prior  thereto,)  has  exercised 
and  still  is  exercising  tho  functions  of  all  said  offices  and  receiving  the  emoluments 


The  Constitution  of  the  United  States  requires  tho  State  to  appoint 
eight  electors  in  such  manner  as  the  Legislature  thereof  may  direct. 
It  has  been  decided  that  they  might  retain  the  power  themselves  and 
appoint  the  electors,  or  they  might  confer  it  on  the  people,  or  they 
might  elect  them  by  general  ticket ;  and  the  question  is  presented 
whether  they  could  as  a  part  of  that  power  designate  Ihe  class  of 
persons  from  whom  the  election  was  to  be  made ;  that  is,  designate 
persons  from  whom  the  election  should  not  be  made.  In  the  exercise 
of  that  power  they  have  specifically  said  that  a  person  who  is  con 
cerned  with  the  registration,  who  has  tho  appointment  of  a  commis 
sioner  of  the  election  of  a  parish,  who  is  the  returning  officer  of  that 
parish,  shall  not  be  a  competent  person  to  be  elected.  There  is  an 
obvious  propriety  that  a  supervisor  of  registration  should  not  bo 
capable  or  eligible  to  any  office  while  conducting  tho  election.  Such 
is  the  common  law,  decided  very  early : 

The  sheriff  of  Rutlandshire  was  chosen,  and  returned  himself,  one  of  tho  mem 
bers  for  that  county.  Unanimously  resolved,  that  the  return  was  void. 

The  question  arose  in  Mississippi,  aud  it  was  there  determined  un 
der  a  statute  similar  to  ours  that  tho  election  of  a  supervisor  of  reg 
istration  to  a  State  office  was  absolutely  null  and  void  : 

Wo  entirely  concur  in  so  much  of  this  judgment  as  holds  that  the  appointee  was 
disqualified  to  take  the  office.  The  law  prescribes  who  may  vote  as  well  as  who 
may  hold  office. 

The  gentlemen  on  the  other  side  have  insisted  that  on  the  subject 
of  the  appointment  of  these  electors  the  Slate  has  plenary  power; 
that  even  Congress  in  determining  who  shall  bo  President  and  Vice- 
Presideut  in  the  counting  of  the  votes  have  no  power  or  authority 
to  go  behind  the  certificate  of  the  State  and  judge  who  has  been 
elected.  I  do  not  go  to  that  length ;  but  I  say  that  the  term  "  man 
ner  of  election,"  "  in  such  manner  as  the  Legislature  may  direct," 
does  include  sufficient  authority  to  determine  who  shall  and  who  shall 
not  bo  elected.  They  may  say  that  an  infant  should  not  be  elected  ; 
they  may  say  that  an  alien  should  not  be  elected ;  they  may  say  that 
persons  convicted  of  felony  should  not  be  elected ;  they  may  dis 
qualify  from  election  the  persons  who  have  the  control  and  the  power 
to  make  tho  returns  of  the  election,  and  who  would  be  in  such  condi 
tion  iii  respect  to  the  election  that  fair  and  impartial  action  could 
not  reasonably  be  expected  from  them ;  and  under  that  view  of  tho 
case  they  have  disqualified  the  whole  body  of  State  registrars  from 
acting  as  returning  officers  for  themselves,  or  being  in  any  manner 
candidates  at  the  place  where  they  were  elected. 

In  the  same  respect  is  the  governor  of  the  State  a  candidate  for 
the  office  of  elector.  He  has  the  appointment  of  every  registrar  in 
the  State,  and  is  therefore  directly  interested  in  having  such  a  regis 
tration  as  would  render  him  a  successful  candidate  ;  and  how  poten 
tial  such  an  interest  is  will  bo  sufficiently  clear  by  evidence.  Here 
is  a  circular  that  passed  to  every  supervisor  of  registration  ;  this  ono 
is  addressed  to  the  supervisor  of  registration  in  the  parish  of  Assump 
tion  : 

HEADQUARTERS  REPUBLICAN  PARTY  or  LOUISIANA, 
ROOMS  JOINT  COMMITTEE  ox  CANVASSING  AND  REGISTRATION, 
MECHANICS'  INSTITUTE,  (September  25,  187(5. 

DEAR  SIR  :  It  is  well  known  to  this  committee  that,  from  examination  of  tho  cen 
sus  of  1875,  the  republicau  vote  in  your  parish  is  2,200  and  the  republican  majority 
is  900. 

You  are  expected  to  register  and  vote  tho  full  strength  of  the  republican  party 
in  your  parish. 

Your  recognition  by  tho  next  State  administration  will  depend  upon  your  Join's 
your  full  du'y  in  tlie  promises,  and  you  will  not  be  held  to  have  done  your  full 
duty  unless  tlie  republican  registration  in  your  parish  reaches  2,200  and  tho  re 
publican  vote  is  at  least  2.100. 


116 


ELECTOllAL  COMMISSION 


All  local  candidates  and  committees  are  directed  to  aid  you  to  the  utmost  in  ob 
taining  the  result,  and  every  facility  is  and  will  be  afforded  you  ;  but  you  must  ob 
tain  the  results  called  for  herein  without  fail.  Once  obtained,  your  recognition 
will  be  ample  and  generous. 

Very  respectfully,  your  obedient  servant, 

D.  J.  M.  A.  JEWETT, 

Secretary. 
SUTEUVISOU  OF  KEGISTRATION, 

Parish  of  Assumption,  Louisiana. 

Yourhonors,  therefore,  must  see  that  there  was  an  adequate  reason 
for  an  enlightened  Legislature  to  put  that  restriction  upon  the  ap 
pointment  of  supervisors  of  registration  and  also  for  putting  the  gov 
ernor  out,  having  obtained  the  place  of  governorto  prevent  him  from 
holding  any  other  office,  so  that  he  should  not  contribute  to  his  elec 
tion  to  another  office  to  take  effect  after  the  expiration  of  his  term 
as  governor.  That  impartial  administration  in  the  matter  of  elec 
tions,  that  purity  of  elections  which  is  an  object  of  so  much  consid 
eration  in  the  constitution  and  laws  of  that  State,  could  never  be  se 
cured  if  such  practices  as  we  bring  to  your  notice  should  be  tolerated. 
Therefore  we  think  that,  if  the  Commission  was  to  reject  all  these 
electors  for  the  reasons  set  forth,  it  would  be  a  vindication  of  the 
will  of  the  people  as  manifested  in  their  organic  law  and  in  their 
statutes. 

These  considerations  are  as  much  as  the  length  of  time  I  have  will 
enable  me  to  submit  to  the  court.  Upon  the  whole  case  I  feel  it  to 
be  my  duty  to  say  that  the  State  of  Louisiana  is  much  more  concerned 
in  the  assertion  of  her  power  and  of  her  right  to  vindicate  the  purity 
of  elections  in  the  State  than  she  is  in  the  election  of  any  candidate 
for  President  or  Vice-Presideut.  The  court  must  observe,  from  what 
I  have  already  exhibited  of  the  laws  of  the  State,  that  the  State  is  in 
the  possession  of  an  oligarchy  of  unscrupulous,  dishonest,  corrupt, 
overreaching  politicians  and  persons  who  employ  the  powers  of  the 
State  for  their  own  emolument.  There  is  no  responsibility  on  their 
part  to  any  moral  law  or  constitutional  or  legal  obligation.  For 
years  they  have  usurped  the  powers  of  the  State  by  means  that  have 
brought  upon  them  the  condemnation  of  the  Senate  of  the  United 
States,  of  the  House  of  Kepresentatives  of  the  United  States,  and,  I 
may  say,  of  the  whole  people  of  the  United  States.  Those  practices 
have  been  covered  ;  immunity  has  been  granted  to  them  because  of 
their  intercourse  and  connection  with  the  politics  and  the  parties  of 
the  Union  ;  and  without  that  connection  they  would  not  stand  in  that 
State  for  a  single  hour.  By  their  association  they  have  prostrated 
every  material  and  endangered  every  moral  interest  within  the  limits 
of  the  State. 

Reading  a  few  days  ago  a  work  upon  the  present  state  of  Turkey 
written  by  a  member  of  the  British  Parliament  who  went  there  to  see 
for  himself  the  situation,  I  was  struck  with  the  way  he  described  the 
government  of  Turkey.  It  was  not  a  government  of  Mohammedans 
nor  a  government  of  Christians.  He  said  that  there  was  a  ring  in 
Constantinople  composed  of  apostates  and  renegades  and  adventurers 
from  every  state  in  Europe ;  that  all  reform  was  trampled  upon  by  them 
because  it  interfered  with  their  powers  and  their  privileges  and  their 
opportunities  to  enrich  themselves  ;  that  they  inspired  and  inspirited 
the  massacres  of  Bulgaria  and  the  oppression  of  the  Servians;  that 
reformation  in  Turkey  was  to  be  accomplished  by  no  other  means  than 
the  expulsion  of  that  ring.  My  residence  in  Louisiana  for  ten  years  en 
ables  me  to  fully  understand  the  perils  and  dangers  and  miseries 
under  which  that  empire  labors  and  which  threatens  the  whole  peace 
of  Europe.  The  rings  in  Louisiana  have  affected  the  peace  of  this 
country.  The  fact  that  this  tribunal  is  now  sitting  and  that  the  whole 
people  of  this  land  look  with  breathless  excitement  to  see  whether 
their  purposes  have  been  accomplished  by  results  has  been  brought 
about  mainly  by  the  toleration  of  misgovcrnment  in  that  State. 

Mr.  EVAKTS.  Mr.  President,  there  are  two  authorities  that  I  will 
ask  to  hand  to  you :  one  is  the  case  of  Morgan  vs.  Quackeubush,  22 
Barbour's  Supreme  Court  Eeports,  page  73  : 

That  the  duty  of  the  common  council,  in  making  the  first  canvass,  was  purely 
ministerial,  and  consisted  in  a  simple  matter  of  arithmetic ;  they  not  being  at  lib 
erty  to  receive  evidence  of  anything  outside  of  the  returns  of  the  inspectors.  That 
in  receiving  affidavits  tending  to  show  fraudulent  practices  at  the  polls,  and  in 
omitting  to  canvass  the  votes  of  two  election  districts,  on  that  ground,  they  acted 
illegally,  and  assumed  to  exercise  a  judicial  power  which  the  Legislature  had  not 
vested  in  them.  But  that,  having  jurisdiction  to  make  the  canvass,  their  certifi 
cate  entitled  P  to  the  office  until  the  other  error  should  be  corrected  by  legal  pro 
ceedings. 

Mr.  HOADLY.  Permit  me  to  ask  a  question.  Did  the  law  under 
which  that  case  was  conducted  prescribe  the  kind  of  testimony  on 
which  the  tribunal  could  act? 

Mr.  EVARTS.    What  tribunal  ? 

Mr.  HOADLY.    The  tribunal  there  of  which  you  read. 

Mr.  EVARTS.  That  1  do  not  know.  The  statement  of  their  pow 
ers  is  giveu,  and  it  is  said  they  exceeded  them,  and  that  action  was 
illegal.  Whatever  their  powers  were  they  exceeded  them,  and  that 
action  was  illegal. 

I  also  refer  to  the  case  of  Brown  vs.  The  City  of  Lowell,  in  8  Met- 
calf,  page  175,  as  pertinent  to  the  inquir"  of  what  the  operation  is  in 
respect  of  an  act  that  is  to  take  effect  at  a  future  day  as  comparing 
with  an  act  passed  after  the  date  of  the  first  and  between  its  date 
and  the  time  it  comes  into  effect. 

Mr.  Commissioner  EDMUNDS.  That  question  is  considered  in  3  Dal 
las,  the  case  of  Ware  vs.  Hilton. 

Mr.  EVARTS.    It  is  sufficient  for  me  to  refer  to  it. 

Mr.  CAMPBELL.     I  understand  I  have  a  few  minutes  more.   There 


is  a  point  that  I  omitted  to  deal  with,  which  was  the  vacancy  in  tho 
board  not  being  filled. 

The  PRESIDENT.     You  have  ten  minutes  yet. 

Mr.  CAMPBELL.  I  wish  to  refer  your  honors  to  an  authority  on 
that  point,  Grant  on  Corporations,  page  155  : 

"When  a  meeting,  at  which  a  specific  thing  is  to  bo  done,  is  to  consist  of  the  dif 
forent  integral  parts  of  a  corporation,  and  each  of  these  integral  parts  consists  of  a 
definite  number  of  corporators,  then  tho  mooting  will  not  be  properly  constituted 
unless  it  be  attended  by  a  majority  of  tho  members  of  each  integral  part  respect 
ively.  Where  an  act  is  to  be  doue  by  a  select  body  consisting  of  a  definite  num 
ber  of  corporators,  it  will  not  bo  valid  unless  a  majority  of  the  select  body  are 
present  at  tho  meeting  to  do  the  act.  If  the  act  is  to  bo  doiie  by  an  indefinite  body, 
it  is  valid  if  passed  by  a  majority  of  those  present  at  the  meeting,  however  small 
a  fraction  they  may  be  of  the  body  at  large. 

In  this  case  the  language  of  the  act  is  : 

That  five  persons,  to  be  elected  by  the  senate  from  all  political  parties,  shall  bo 
tho  returning  officers  for  all  elections  in  tho  State,  a  majority  of  whom  shall  consti 
tute  a  quorum,  and  have  power  to  make  the  returns  of  all  elections.  In  case  of 
any  vacancy  by  death,  resignation,  or  otherwise,  by  either  of  the  board,  then  tho 
vacancy  shall  bo  filled  by  the  residue  of  the  board  of  returning  officers. 

And  the  word  "  then  "  imports  time,  and  when  the  vacancy  occurs 
that  it  shall  be  filled.  In  this  case  the  vacancy  occurred  three  years 
ago,  in  1874.  Repeated  requests  and  demands  were  made  upon  this 
board  to  fill  that  vacancy,  but  that  vacancy  was  not  filled,  and  has 
not  been  filled.  The  reason  given  for  it  in  the  testimony  which  we 
shall  offer,  if  permitted,  is  from  the  corrupt  motive  of  escaping  obser 
vation.  It  was  perfectly  within  their  means  to  have  filled  it ;  it  was 
their  duty  to  have  filled  it,  and  they  acted  corruptly  in  not  filling  it. 
It  was  said  yesterday  by  one  of  the  counsel  that  they  had  offered  it 
repeatedly  and  it  had  been  repeatedly  refused.  No  person  to  whom 
the  offer  was  ever  made  has  ever  been  brought  before  any  committee 
to  testify  that  the  offer  had  been  made  to  him  and  that  ho  had  refused 
it.  The  members  of  the  board  themselves,  at  least  one  of  them,  did 
testify  that  it  was  not  filled  for  the  reason  that  they  did  not  wish  to 
be  subjected  to  any  sort  of  observation  in  the  performance  of  that 
work.  It  stood  upon  that  ground.  It  is  such  malpractice  as  to  vi 
tiate  their  subsequent  proceedings  in  the  non-performance  of  that 
duty,  as  well  as  the  legal  requirement  on  them  to  perform  it. 

Mr.  Commissioner  EDMUNDS.  Supposing,  Judge  Campbell,  that 
they  were  not  legally  required  to  perform  it  in  tho  sense  of  making 
their  after-acts  invalid,  then  would  their  failure  to  perform  what  the 
law  did  not  compel  them  to  do,  from  bad  motive,  change  the  validity 
of  their  subsequent  acts  ? 

Mr.  CAMPBELL.  They  were  bound  under  the  terms  of  the  law  to 
have  filled  the  vacancy.  Observe  the  language  : 

In  case  of  any  vacancy  by  death,  resignation,  or  otherwise,  by  either  of  the 
board,  then  tho  vacancy  shall  be  filled  by  the  residue  of  the  board  of  returning  of 
ficers. 

Mr.  Commissioner  EDMUNDS.  I  do  not  think  you  understood  my 
question.  Supposing  you  to  be  correct,  that  it  was  their  duty  to  fill 
the  vacancy,  that  they  had  no  power  to  take  any  step  in  the  per 
formance  of  their  duties  until  it  was  filled,  then  do  you  claim  that 
their  subsequent  acts  would  be  invalid,  no  matter  what  the  motive 
was  ?  But,  supposing  on  the  other  hand  that  it  was  not  a  duty  to  fill 
it,  in  the  sense  of  their  incapacity  to  proceed  afterward,  would  the 
presence  of  the  corrupt  motive  make  any  difference  in  the  validity  of 
their  subsequent  acts  f  That  is  the  question  I  should  like  to  have 
your  view  upon. 

Mr.  CAMPBELL.  I  suppose  that  the  failure  to  perform  any  duty 
enjoined  by  the  law  from  a  corrupt  motive  which  affects  the  election 
would  have  the  effect.  A  case  in  50  New  Hampshire,  140,  was  this: 

It  appeared  that  there  were  declared  as  cast  at  one  of  the  precincts  27  more  votes 
for  county  commissioner  than  were  marked  on  the  check-list.  The  court  said  "  if 
from  the  fact  of  this  discrepancy  the  court  ought  to  find  that  it  was  the  result  of 
fraud  in  the  managers  of  the  election,  the  court  would  hesitate  long  to  count  any 
of  the  votes  cast  at  an  election  so  tainted,  on  the  ground  that  with  such  proof  of 
fraudulent  and  corrupt  purposes,  no  confidence  could  be  entertained  in  coming  to 
any  reliable  conclusion  as  to  what  votes  were  actually  given.' '  And  the  safe  rule 
probably  is,  that  where  an  election  board  are  found  ito  have  willfully  and  deliber 
ately  committed  a  fraud,  oven  though  it  affect  a  number  too  small  to  change  the  re 
sult,  it  is  sufficient  to  destroy  all  confidence  in  their  official  acts,  and  to  put  the  party 
claiming  anything  under  the  election  conducted  by  them  to  the  proof  of  his  votes 
by  evidence  other  than  the  return. 

I  read  from  the  American  Law  of  Elections  by  McCrary,  section  184. 
I  know  of  no  case  which  is  a  precise  parallel  to  the  one  before  tho 
Commission,  where  the  fraud  has  originated  in  the  failure  to  fill  a 
vacancy  ;  but  as  the  Legislature  contemplated  that  there  should  bo 
five  persons  and  that  the  board  should  always  be  of  five,  composing 
all  political  parties,  the  fraudulent  refusal  to  do  that  would  render 
them  incompetent  to  perform  further  acts. 

The  PRESIDENT.  The  time  is  exhausted  on  the  side  of  objectors 
to  certificate  No.  1,  and  an  hour  and  two  minutes  are  left  to  the  other 
side. 

Mr.  MERRICK.  Mr.  President  and  gentlemen,  may  I  be  allowed 
to  file  a  brief  on  the  subject  last  referred  to  by  Judge  Campbell  ? 

The  PRESIDENT.    I  think  you  may  submit  it  to  the  Commission. 

Mr.  MERRICK.  I  beg  to  call  the  attention  of  the  Commission  to 
it.  It  contains  some  authorities  directly  in  point  on  the  question  that 
this  board  under  tho  law  while  composed  of  four  did  not  possess  legal 
authority  to  act.  Among  those  authorities  is  an  opinion  in  a  case 
from  Mr.  Justice  MILLER.  I  will  state  to  the  Commission  with  tho 
permission 


ELECTORAL  COMMISSION. 


117 


The  PRESIDENT.  It  is  suggested  that  I  have  computed  the  time 
•wrong  ;  that  I  have  given  the  objectors  to  certificate  No.  2  too  much. 
I  \vill  not  stop  to  revise  it  at  this  time.  I  shall  stand  by  what  I  have 
stated  until  I  see  that  I  was  wrong.  The  journal  clerk  thinks  I  have 
allowed  an  hour  too  much. 

Mr.  EVARTS.  I  think  you  said  we  had  an  hour  and  two  minutes 
left. 

The  PRESIDENT.     He  thinks  you  have  just  three  minutes  left. 

Mr.  TRUMBULL.  I  desire  to  call  attention  for  one  moment,  hy 
permission  of  the  Commission,  to  the  question  of  time.  It  will  be 
recollected  that  yesterday  in  the  discussion  my  time  was  occupied  for 
at  least  half  an  hour  with  a  discussion  that  occurred  between  mem 
bers  of  the  Commission  and  in  reading  some  incidental  papers  called 
for  by  the  Commission.  At  the  time  something  was  said  about  the 
propriety  of  not  deducting  that  from  the  time  used  by  us,  and  it  seems 
to  me  that  it  is  depriving  us  of  some  little  time  that  we  may  want  to 
use  to  enforce  the  rule  under  such  circumstances  as  against  the  time 
that  I  occupied. 

The  PRESIDENT.  I  made  no  deduction  for  interruptions.  I  left 
that  for  the  Commission  to  decide.  It  is  proper  therefore  that  you 
should  ask  the  Commission,  if  you  see  tit,  to  make  an  allowance.  I 
made  none. 

Mr.  TRUMBULL.  I  do  not  desire  at  this  moment  to  make  any  re 
marks,  but  Mr.  Merrick  does. 

Mr.  MERRICK.  I  merely  desire,  may  it  please  your  honors,  to  make 
a  statement  in  reply  to  a  statement  made  by  Mr.  Evarts,  that  during 
the  entire  progress  of  the  investigation  of  this  subject  that  took  place 
in  Louisiana  no  protest  was  made,  and  no  objection  intimated,  to  the 
power  of  this  board  to  canvass  the  electoral  vote. 

Mr.  EVARTS.  I  did  not  state  it  in  that  form.  I  stated  that  no 
claim  was  made  that  Governor  Kellogg  was  to  canvass  it.  I  said 
nothing  about  a  protest. 

Mr.  MERRICK.  Then  I  misunderstood.  A  protest  was  duly  filed 
by  those  representing  the  democratic  party  against  the  power  of  the 
returning  board  in  Louisiana  to  canvass  the  electoral  vote  on  the 
first  day  of  the  session. 

Mr.  EVARTS.     I  said  nothing  on  that  subject  whatever. 

The  PRESIDENT.  I  think  I  am  not  authorized  now  to  receive 
any  further  discussion  ;  the  discussion  of  the  pending  proposition  is 
concluded.  Shall  notice  be  now  given  that  there  will  be  no  further 
public  proceedings  to-day  I  [Putting  the  question.]  It  is  so  ordered. 

The  room  was  thereupon  cleared  at  half  past  four  o'clock  p.  in. 
While  the  doors  were  closed,  an  order  was  made  that  the  pending 
question  should  be  voted  on  at  four  o'clock  p.  m.  to-morrow,  and  the 
Secretary  was  directed  to  notify  the  respective  counsel  to  be  in  at 
tendance  to  proceed  under  the  further  order  of  the  Commission  at 
four  o'clock  and  fifteen  minutes  p.  m.  to-morrow.  At  five  o'clock  and 
twenty-two  minutes  p.  m.  the  Commission  adjourned  until  to-morrow 
at  ten  o'clock  a.  m. 


FRIDAY,  February  16,  1877. 

The  Commission  met  at  ten  o'clock  a.  m.,  pursuant  to  adjournment, 
•with  closed  doors,  for  the  purpose  of  consultation  on  the  question  sub 
mitted  relative  to  the  offers  of  proof  connected  with  the  objections 
raised  to  the  certificates  of  electoral  votes  from  the  State  of  Loui 
siana. 

After  debate, 

Mr.  Commissioner  HOAR  submitted  the  following  order : 

Ordered,  That  the  evidence  offered  be  not  received. 

Mr.  Commissioner  ABBOTT  offered  the  following  as  a  substitute 
for  the  proposed  order : 

Resolved,  That  evidence  will  be  received  to  show  that  so  much  of  the  act  of  Lou 
isiana  establishing  a  re(  urning  board  for  that  State  is  unconstitutional,  and  the  acts 
of  said  returning  board  are  void. 

The  question  being  on  the  adoption  of  the  substitute,  it  was  de 
cided  in  the  negative : 

YEAS 7 

NAYS 8 

Those  who  voted  in  the  affirmative  were :  Messrs.  Abbott,  Bayard, 
Clifford,  Field,  Huiitou,  Payne,  and  Thurman — 7. 

Those  who  voted  in  the  negative  were  :  Messrs.  Bradley,  Edmunds, 
Freliughuysen,  Garfield,  Hoar,  Miller,  Morton,  and  Strong — 8. 

Mr.  Commissioner  ABBOTT  offered  the  following  as  a  substitute : 

Resolved,  That  evidence  will  be  received  to  show  that  the  returning  hoard  of 
Louisiana,  at  the  time  of  canvassing  and  compiling  the  vote  of  that  State  at  the 
last  election  in  that  State,  was  not  legally  constituted  under  the  law  establishing 
it,  in  this  :  that  it  was  composed  of  four  persons  all  of  one  political  party,  instead 
of  five  persons  of  different  political  parties,  as  required  by  the  law  establishing  said 
board. 

The  question  being  on  the  adoption  of  the  substitute,  it  was  decided 
in  the  negative  : 

YEAS 7 

NAYS 8 

Those  who  voted  in  the  affirmative  were :  Messrs.  Abbott,  Bayard, 
Clifford,  Field,  Hunton,  Payne,  and  Thurmau— 7. 


Those  who  voted  in  the  negative  were :  Messrs.  Bradley,  Edmunds, 
Frelinghuyseu,  Garfield,  Hoar,  Miller,  Morton,  and  Strong— 8. 
Mr.  Commissioner  ABBOTT  offered  the  following  as  a  substitute  : 
Resolved,  That  the  Commission  will  receive  testimony  on  the  subject  of  the 
frauds  alleged  in  the  specifications  of  the  counsel  for  the  objectors  to  certificates 
Nos.  1  and  3. 

The  question  being  on  the  adoption  of  the  substitute,  it  was  decided 
in  the  negative : 

YEAS _  7 

NAYS .'.'.'.'.'.'.".'.".'.'.    ".  8 

Those  who  voted  in  the  affirmative  were :  Messrs.  Abbott,  Bayard, 
Clifford,  Field,  Hnnton,  Payne,  and  Thurman — 7. 

Those  who  voted  in  the  negative  were :  Messrs.  Bradley,  Edmunds, 
Freliughuysen,  Garfield,  Hoar,  Miller,  Morton,  and  Strong — 8. 

Mr.  Commissioner  ABBOTT  offered  the  following  as  a  substitute  : 

Resolved,  That  testimony  tending  to  show  that  the  so-called  returning  hoard  of 
Louisiana  had  no  jurisdiction  to  canvass  the  votes  for  electors  of  President  and 
Vice-President  is  admissible. 

The  question  being  on  the  adoption  of  the  substitute,  it  was  de 
termined  in  the  negative : 

YEAS 7 

NAYS 8 

Those  who  voted  in  the  affirmative  were  :  Messrs.  Abbott,  Bayard, 
Clifford,  Field,  Hunton,  Payne,  and  Thurman — 7. 

Those  who  voted  in  the  negative  were  :  Messrs.  Bradley,  Edmunds, 
Frolinghuysen,  Garfield,  Hoar,  Miller,  Morton,  and  Strong— 8. 

Mr.  Commissioner  ABBOTT  offered  the  following  as  a  substitute  : 

Resolved,  That  evidence  is  admissible  that  the  statements  and  affidavits  purport  - 


ricated  and  forged  by  certain  disreputable  persons  under  the  direction  and  with  the 
knowledge  of  s.tid  returning  hoard,  and  that  said  returning  board  knowing  said 
statements  and  affidavits  to  bo  false  and  forged  and  that  none  of  the  said  statements 
or  affidavits  were  made  in  the  manner  or  form  or  within  the  time  required  by  law, 
did  knowingly,  willfully,  and  fraudulently  fail  aud  refuse  to  canvass  or  compile 
more  than  ten  thousand  votes  lawfully  cast,  as  is  shown  by  the  statements  of  votes 
of  the  commissioners  of  election. 

The  question  being  on  the  adoption  of  the  substitute,  it  was  decided 
in  the  negative : 

YEAS 7 

NAYS 8 

Those  who  voted  in  the  affirmative  were :  Messrs.  Abbott,  Bayard, 
Clifford,  Field,  Huntou,  Payne,  and  Thurmau — 7. 

Those  who  voted  in  the  negative  were :  Messrs.  Bradley,  Edmunds, 
Frelinghuysen,  Garfield,  Hoar,  Miller,  Morton,  and  Strong — 8. 

Mr.  Commissioner  HUNTON  offered  the  following  as  a  substitute  : 

Resolved,  That  evidence  be  received  to  prove  that  the  votes  cast  and  given  at 
said  election  on  the  7th  of  November  last  for  the  election  of  electors  as  shown  by 
the  returns  made  by  the  commissioners  of  election  from  the  several  polls  or  voting- 
places  in  said  State  have  never  been  compiled  or  canvassed,  and  that  the  said  re 
turning  board  never  even  pretended  to  compile  or  canvass  the  returns  made  by 
said  commissioners  of  election,  but  that  the  said  returning  board  only  pretended  to 
canvass  the  returns  made  by  said  supervisors. 

The  question  being  on  the  adoption  of  the  substitute,  it  was  decided 
in  the  negative : 

YEAS 7 

NAYS 8 

Those  who  voted  in  the  affirmative  were :  Messrs.  Abbott,  Bayard, 
Clifford,  Field,  Hunton,  Payne,  and  Thurmau — 7. 

Those  who  voted  in  the  negative  were  :  Messrs.  Bradley,  Edmunds, 
Frelinghuysen,  Garfiold,  Hoar,  Miller,  Morton,  and  Strong — 8. 

Mr.  Commissioner  BAYARD  offered  the  following  as  a  substitute  : 

Resolved,  That  no  person  holding  an  office  of  trust  or  profit  under  the  United 
States  is  eligible  to  be  appointed  an  elector,  and  that  this  Commission  will  receive 
evidence  tending  to  prove  such  ineligibility  as  offered  by  counsel  for  objectors  to 
certificates  1  and  3. 

The  question  being  on  the  adoption  of  the  substitute,  it  was  decided 
in  the  negative : 

YEAS 7 

NAYS 8 

Those  who  voted  in  the  affirmative  were :  Messrs.  Abbott,  Bayard, 
Clifford,  Field.  Hunton,  Payne,  and  Thurman — 7. 

Those  who  voted  in  the  negative  were  :  Messrs.  Bradley,  Edmunds, 
Frelinghuysen,  Garfield,  Hoar,  Miller,  Morton,  and  Strong — 8. 

Mr.  Commissioner  FIELD  offered  the  following  as  a  substitute: 

Resolved,  That  in  the  opinion  of  the  Commission  evidence  is  admissible  upon  the 
several  matters  which  counsel  for  the  objectors  to  certificates  Nos.  1  and  3  offered 
to  prove. 

The  question  being  on  the  adoption  of  the  substitute,  it  was  decided 
in  the  negative : 

YEAS 7 

NAYS 8 

Those  who  voted  in  the  affirmative  were :  Messrs.  Abbott,  Bayard, 
Clifford,  Field,  Hunton,  Payne,  and  Thurman— 7. 

Those  who  voted  in  the  negative  were  :  Messrs.  Bradley,  Edmunds, 
Frelinghuysen,  Garfield,  Hoar,  Miller,  Morton,  and  Strong— 8. 


118 


ELECTORAL  COMMISSION. 


Tho  question  then  recurring  on  tho  adoption  of  the  order  submitted 

by  Mr.  Commissioner  HOAR, 

31  r.  Commissioner  PAYNE  moved  to  strike  out  the  word  "not." 
The  question  being  on  the  adoption  of  the  amendment,  it  was  de 

termined  in  the  negative  : 


YKAS  ...........................................................  7 

NAYS  ...........................................   ..............  8 

Those  who  voted  in  tho  affirmative  were  :  Messrs.  Abbott,  Bayard, 
Clifford,  Field,  Huuton,  Payne,  and  Thurman  —  7. 

Those  who  voted  in  the  negative  were:  Messrs.  Bradley,  Edmunds, 
Frolinghuyfien,  Gariield,  Hoar,  Miller,  Morton,  and  Strong  —  8. 

The  question  then  recurred  on  tho  adoption  of  tho  order  submitted 
by  Mr.  Commissioner  HOAR  in  tho  following  words  : 

Ordered,  That  tho  evidence  offered  bo  not  received. 

The  question  being  on  tho  adoption  of  the  order,  it  was  determined 
in  the  affirmative  : 
YEAS  ...........................................................  8 

NAYS  ...........................................................  7 

Those  who  voted  in  the  affirmative  were  :  Messrs.  Bradley,  Ed 
munds,  Frelinghuysen,  Garfiold,  Hoar  Miller,  Morton,  and  Strong—  8. 

Those  who  voted  in  the  negative  were  :  Messrs.  Abbott,  Bayard, 
Clifford,  Field,  Hunton,  Payne,  and  Thurman  —  7. 

On  motion  of  Mr.  Commissioner  FIELD,  it  was  — 

Ordered,  That  tbo  injunction  of  secrecy  be  removed  from  the  proceedings  of  the 
Commission. 

The  order  was  agreed  to. 

The  doors  were  thereupon  opened  ;  and  the  respective  counsel  ap 
peared. 

The  action  of  the  Commission  on  the  various  motions  and  orders 
submitted  was  read. 

Mr.  Commissioner  HOAR.  Mr.  President,  I  desire  to  inquire  of  tho 
Chair  whether  any  of  the  time  that  counsel  were  entitled  to  under 
the  order  of  tho  Commission  remains  or  whether  it  has  been  ex 
hausted  ?  The  Chair  was  not  certain  yesterday  on  that  point. 

The  PRESIDENT.  The  time  on  the  side  of  the  objectors  to  certi 
ficates  Nos.  1  and  3  was  exhausted.  In  regard  to  the  time  remaining 
on  the  part  of  the  objectors  to  certificate  No.  2,  I  find  that  I  made  an 
error  in  my  announcement  yesterday  by  the  correction  of  my  associ 
ate,  Judge  MILLER,  and  the  journal  clerk.  By  these  corrections  I  am 
advised  that  ten  minutes  are  left  to  that  side,  but  substantially  the 
time  is  exhausted. 

Mr.  Commissioner  PAYNE.  I  move  that  the  time  be  extended  to 
counsel  on  each  side  for  one  hour  on  the  general  question. 

Mr.  Commissioner  GAEFIELD.     I  heard  no  request  for  that. 

The  PRESIDENT.  Mr.  PAYNE  moves  that  one  hour  on  each  side 
be  allowed  to  counsel  for  the  discussion  of  the  main  question  that 
remains. 

Mr.  Commissioner  GARFIELD.  I  wish  to  say  that  the  order  under 
which  four  hours  and  a  half  of  time  were  allowed  to  each  side  for  the 
discussion  of  the  whole  question  was  proceeding  to  be  executed  when 
it  was  intercepted  by  an  offer  of  testimony,  and  it  was  then  agreed 
that  two  additional  hours  should  be  given  to  each  side  for  the  discus 
sion  of  that  question.  After  that  agreement  was  entered  into  it  was 
also  agreed  that  the  counsel  might  draw  on  their  final  time  on  the 
whole  question  and  use  it  on  that  interlocutory  question  if  they 
chose  to  do  so. 

The  PRESIDENT.     And  they  did  use  it  up. 

Mr.  Commissioner  GARFIELD.  They  did  use  it  up,  and  they  dis 
cussed  the  whole  question,  together  with  the  interlocutory  question. 
The  counsel  have  not  asked  for  additional  time  ;  and  if  they  had,  I 
should  myself  consider  that  we  ought  to  stand  by  our  order.  I  shall 
vote  against  the  motion  of  Mr.  PAYNE.  • 

The  PRESIDENT.  The  motion  is  that  an  hour  on  each  side  be  al 
lowed  for  argument. 

Mr.  Commissioner  MORTON.  Unless  counsel  desire  that,  I  shall 
certainly  vote  against  it. 

Mr.  EVARTS.  I  think  that  counsel  distinctly  presented  to  the  Com 
mission,  and  certainly  felt  thoroughly,  that  the'discussion  thus  opened 
to  them  covered  the  whole  merits  of  the  case.  That  was  our  view. 

The  PRESIDENT.    You  are  satisfied,  then  ? 

Mr.  EVARTS.  We  are  satisfied  with  the  discussion  as  it  now 
stands. 

The  PRESIDENT.  I  will  put  the  same  inquiry  to  counsel  on  the 
other  side. 

Mr.  CAMPBELL.  The  time  which  was  granted  by  the  Commission 
was  granted  with  a  view  to  the  discussion  of  tho  questions  arising  on 
the  case  presented.  We  have  nothing  to  add  to  the  case  we  have 
submitted  to  the  Commission. 

Mr.  Commissioner  PAYNE.    Then  I  withdraw  tho  motion. 

Mr.  Commissioner  ABBOTT.  I  understand  you  to  say,  Judge  Camp 
bell,  that  the  Commission  having  ruled  out  all  the  evidence  you  offered, 
you  have  nothing  further  to  add  before  the  deed  is  done. 

Mr.  CAMPBELL.    Nothing,  sir. 

Tho  PRESIDENT.    The  motion  of  Mr.  PAYNE  is  withdrawn. 

Mr.  Commissioner  MORTON.  I  move  that  a  committee  of  three 
members  of  the  Commission  bo  appointed  to  prepare  the  report,  and 
that  we  take  an  intermission  of  one  hour  for  that  purpose. 


Mr.  Commissioner  THURMAN.     What  is  that  motion  ? 

The  PRESIDENT.  The  motion  is  that  a  committee  of  three  be  ap 
pointed 

Mr.  Commissioner  STRONG.  Allow  mo  to  suggest  that,  before  that 
question  is  formally  passed  on,  there  is  the  question  of  the  admissi- 
bility  of  the  evidence  that  was  offered.  We  have  not  passed  on  tho 
merits  of  the  case,  formally  at  least.  I  think  we  ought  first  to  go 
into  deliberation  for  that  purpose. 

Mr.  Commissioner  MORTON.     I  withdraw  the  motion. 

Mr.  Commissioner  STRONG.  It  is  possible  that  on  a  discussion  of 
the  merits  of  the  case  among  ourselves  \vo  may  come  to  a  couclusiou 
which  nobody  is  now  authorized  to  anticipate. 

Mr.  Commissioner  HOAR.  I  move  that  the  Commission  go  into 
consultation. 

The  motion  was  agreed  to;  and  (at  five  o'clock  and  twenty-five 
minutes  p.  m.)  the  Commission  proceeded  to  consultation  with  closed 
doors. 

Mr.  Commissioner  MORTON  offered  the  following : 

Resolved,  That  tho  persons  named  as  electors  in  certificate  No.  1  were  the  lawful 
electors  of  tho  State  of  Louisiana,  and  that  their  votes  are  the  votes  provided  by 
the  Constitution  of  tho  Uiiited  States,  and  should  bo  counted  for  President  and 
Vice-President. 

Mr.  Commissioner  THURMAN  offered  the  following  as  a  substi 
tute  : 

Strike  out  all  after  tho  word  "  resolved,"  and  insert : 

That  inasmuch  an  the  votes  of  tho  people  of  Louisiana  for  electors  of  President 
and  Vice- President  in  November  last  have  never  been  legally  canvassed  and  de 
clared,  therefore  the  votes  purporting  to  bo  votes  of  electors  of  that  State  for  Presi  • 
dent  and  Vice-President  ought  not  to  bo  counted,  and  no  electors  of  President  and 
Vico-Presideut  can  be  regarded  as  chosen  in  that  State. 

The  question  being  on  the  adoption  of  the  substitute,  it  was  de 
cided  in  the  negative : 

YEAS 7 

NAYS 8 

Those  who  voted  in  the  affirmative  were:  Messrs.  Abbott,  Bayard, 
Clifford,  Field,  Hunton,  Payne,  and  Thnrman — 7. 

Those  who  voted  in  the  negative  were :  Messrs.  Bradley,  Edmunds, 
Frelinghuysen,  Garfield,  Hoar,  Miller,  Morton,  and  Strong — 8. 

Mr.  Commissioner  HUNTON  moved  to  amend  by  striking  out  all 
after  the  word  "resolved"  and  inserting: 

That  the  votes  purporting  to  be  the  electoral  votes  of  tho  State  of  Louisiana  be 
not  counted. 

The  question  being  on  the  adoption  of  the  amendment,  it  was  de 
cided  in  the  negative : 

YEAS 7 

NAYS 8 

Those  who  voted  in  the  affirmative  were :  Messrs.  Abbott,  Bayard, 
Clifford,  Field,  Hunton,  Payne,  and  Thurman — 7. 

Those  who  voted  in  the  negative  were  :  Messrs.  Bradley,  Edmunds, 
Frelinghnysen,  Garfield,  Hoar,  Miller,  Morton,  and  Strong — 8. 

And  the  question  recurring  on  the  adoption  of  the  resolution  of 
Mr.  Commissioner  MORTON,  it  was  decided  in  the  affirmative — 

YEAS 8 

NAYS 7 

Those  who  voted  in  the  affirmative  were  :  Messrs.  Bradley,  Ed 
munds,  Frelinghuysen,  Garfield,  Hoar,  Miller,  Morton,  and  Strong — 8. 

Those  who  voted  in  the  negative  were  :  Messrs.  Abbott,  Bayard, 
Clifford,  Field,  Hunton,  Payne,  and  Thurmau — 7. 
•  Mr.  Commissioner  MILLER  moved  that  Commissioners  STRONG, 
FRELINGHUYSEN,  and  BRADLEY  bo  a  committee  to  draft  a  report,  as 
required  by  law,  of  tho  action  of  the  Commission  in  the  matter 
pending. 

Mr.  Commissioner  GARFIELD  moved  that  said  committee  consist 
of  Commissioners  EDMUNDS,  BRADLEY,  and  MILLER,  the  committee 
appointed  to  prepare  tho  report  of  the  Commission  in  the  case  of  tho 
State  of  Florida. 

On  motion, 

Mr.  Commissioner  EDMUNDS  was  excused  from  serving  on  said  com 
mittee  on  account  of  ill-health. 

And  on  motion  of  Mr.  Commissioner  FRELINGHUYSEN, 

Commissioners  MILLER,  HOAR,  and  BRADLEY  were  appointed  as 
said  committee. 

On  motion  of  Mr.  Commissioner  MILLER,  (at  six  o'clock  and  fivo 
minutes  p.  m.,)  the  Commission  took  a  recess  until  seven  o'clock  p.  m. 

Tho  recess  having  expired,  on  motion  of  Mr.  Commissioner  HOAR, 
the  Commission  took  a  further  recess  until  seven  o'clock  and  fifteen 
minutes  p.  m. 

After  the  recess, 

Mr.  Commissioner  MILLER,  on  behalf  of  committee  to  prepare  a  re 
port  of  the  action  of  the  Commission  in  the  matter  of  the  electoral  vote 
of  tho  State  of  Louisiana,  offered  the  following  : 

Ordered,  That  the  following  be  adopted  and  signed  by  those  members  of  the  Com 
mission  agreeing  therein,  as  the  decision  of  the  Commission  on  the  matters  submit 
ted  to  it  touching  the  electoral  votes  of  tho  State  of  Louisiana,  and  the  brief  grounds 
of  said  decision,  and  bo  transmitted  by  tho  President  of  the  Commission  with  all 
tho  accompanying  papers  to  the  President  of  tho  Senate,  to  be  laid  before  the  two 
Houses  of  Congress  at  tho  meeting  provided  for  in  said  act : 


ELECTORAL  COMMISSION. 


Ill) 


ELECTORAL  COMMISSION, 
Washington,  D.  O.,  February  1C,  A.  D.  1877. 
To  tho  President  of  the  Senate  ot  tho  Unitod  States,  presiding  in  the  meeting  of 

the  two  Houses  of  Congress,  under  the  act  of  Congress  entitled  "  An  act  to  pro 
vide  for  and  regulate  the  counting  of  votes  for  President  and  Vice-President,  and 

the  decision  of  questions  arising  thereon,  for  the  term  commencing  March  4,  A. 

D.  1877,"  approved  January  29,  A.  D.  1877. 

Tho  Electoral  Commission  mentioned  in  said  act  having  received  certain  certifi 
cates  and  papers  purporting  to  bo  certificates  and  papers  accompanying  the  same 
of  tho  electoral  votes  from  tho  State  of  Louisiana,  and  the  objections  thereto,  sub 
mitted  to  it  under  said  act,  now  report  that  it  has  duly  considered  the  same  pursu 
ant  to  said  act,  and  has,  by  a  majority  of  votes,  decided,  and  does  hereby  decide, 
that  tho  votes  of  "Williain  P.  Kellogg,  J.  Henri  Burcli,  Peter  Joseph,  Lionel  A. 
Sheldon,  Morris  Marks,  Aarou  B.  Levissee,  Orlando  H.  Brewster,  and  Oscar  Jof- 
frion,  named  in  the  certificate  of  William  P.  Kellogg,  governor  of  said  State,  which 
votes  are  certified  by  said  persons,  as  appears  by  the  certificates  submitted  to  tho 
Commission,  as  aforesaid,  and  marked  Nos.  one  (1)  and  three  (3)  by  said  Commis 
sion,  and  herewith  returned,  are  the  votes  provided  for  by  the  Constitution  of  the 
United  States,  and  that  the  same  are  lawfully  to  be  counted  as  therein  certified, 
namely  :  Eight  (8)  votes  for  Rutherford  B.  Hayes,  of  the  State  of  Ohio,  for  Presi 
dent,  and  eight  (8)  votes  for  William  A.  Wheeler,  of  New  York,  for  Vice-Presideut. 

The  Commission  has,  by  a  majority  of  votes,  also  decided,  and  does  hereby  de 
cide  and  report,  that  the  eigljt  persons  first  above  named  were  duly  appointed 
electors  in  and  by  the  State  of  Louisiana. 

The  brief  ground  of  this  decision  is  that  it  appears  upon  such  evidence  as  by  the 
Constitution  and  the  law  named  in  said  act  of  Congress  is  competent  and  perti 
nent  to  the  consideration  of  the  subject,  that  the  beforementioncd  electors  appear 
to  have  been  lawfully  appointed  such  electors  of  President  and  Vice-President  of 
the  United  States  for  the  term  beginning  March  4,  A.  I).  1877,  of  the  State  of  Lou 
isiana,  and  that  they  voted  as  such  at  the  time  and  in  the  manner  provided  for  by 
the  Constitution  of  the  United  States  and  the  law ;  and  the  Commission  has  by  a 
majority  of  votes  decided,  and  does  hereby  decide,  that  it  is  not  competent  under 
the  Constitution  and  the  law  as  it  existed  at  the  date  of  the  passage  of  said  act  to  go 
into  evidence  aliunde  the  papers  opened  by  the  President  of  the  Senate  in  the  pres 
ence  of  the  two  Houses  to  prove  thatotherp'ersons  than  those  regularly  certified  to  by 
t  he,  governor  of  the  State  of  Louisiana,  on  and  according  to  the  determination  and  dec 
laration  of  their  appointment  by  the  returning  officers  for  elections  in  tho  said  State 
prior  to  tho  time  required  for  the  performance  of  their  duties,  had  been  appointed 
oh'Ctors,  or  by  counter-proof  to  show  that  they  had  not ;  or  that  the  determination 
of  the  said  returning  officers  was  not  in  accordance  with  tho  truth  and  the  fact, 
the  Commission  by  a  majority  of  votes  being  of  opinion  that  it  is  not  within  the 
jurisdiction  of  the  two  Houses  of  Congress  assembled  to  count  tho  votes  for  Presi 
dent  and  Vico-President  to  enter  upon  a  trial  of  such  question. 

The  Commission  by  a.  majority  of  votes  is  also  of  opinion  that  it  is  not  competent 
to  prove  that  any  of  said  persons  so  appointed  electors  as  aforesaid  held  an  ollieo 
of  trust  or  profit  under  tho  United  States  at  tho  time  when  they  were  appointed, 
or  that  they  were  ineligible  under  the  laws  of  tho  State  or  any  other  matter  offered 
to  bo  proved  aHunde  the  said  certificates  anil  papers. 

The  Commission  is  also  of  opinion  by  a  majority  of  votes  that  the  returning  offi 
cers  of  election  who  canvassed  the  votes  at  tho  election  for  electors  in  Louisiana 
were  a  legally  constituted  body,  by  virtue  of  a  constitutional  law,  and  that  a  va 
cancy  in  said  body  did  not  vitiate  its  proceedings. 

The  Commission  has  also  decided,  and  does  hereby  decide,  by  a  majority  of  votes 
and  report  that  as  a  consequence  of  the  foregoing  and  upon  the  grounds  before 
stated  that  the  paper  purporting  to  bo  a  certificate  of  tho  electoral  vote  of  said 
State  of  Louisiana,  objected  to  by  Timothy  O.  Howe  and  others,  marked  "  N.  C.  No. 
a"  by  the  Commission,  and  herewith  returned,  is  not  tho  certificate  of  the  votes 
provided  for  by  the  Constitution  of  tho  United  States,  and  that  they  ought  not  to 
be  counted  as  such. 

Done  at  Washington,  the  day  and  year  first  above  written. 

The  question  being  on  tho  adoption  of  the  report  of  tho  committee, 
it  was  decided  in  tho  affirmative : 

YEAS 8 

NAYS 7 

Those  who  voted  in  the  affirmative  were :  Messrs.  Bradley,  Edmunds, 
Frelinghnyseu,  Garfield,  Hoar,  Miller,  Morton,  and  Strong— 8. 

Those  who  voted  in  the  negative  were :  Messrs.  Abbott,  Bayard, 
Clifford,  Field,  Hunton,  Payne,  and  Thurman — 7. 

So  the  report  of  tho  committee  was  adopted ;  and  the  decision  and 
report  were  thereupon  signed  by  the  members  agreeing  therein,  as  fol 
lows  : 

SAM.  F.  MILLER. 

W.  STRONG. 

JOSEPH  P.  BRADLEY. 

GEO.  F.  EDMUNDS. 

O.  P.  MORTON. 

FRED'K  T.  FEELING HUTSEN. 

JAMES  A.  GARFIELD. 

GEORGE  F.  HOAR. 

On  motion  of  Mr.  Commissioner  GARFIELD,  it  was 

Ordered,  That  when  the  Commission  adjourn,  it  be  until  to-morrow  at  four  o'clock 
p.  in. 

Mr.  Commissioner  MILLER  offered  the  following : 

Ordered,  That  the  President  of  the  Commission  sign  and  transmit  to  the  Presi 
dent  of  tho  Senate  the  following  letter,  to  wit : 

"WASHINGTON,  D.  C.,  February  16,  A.  D.  1877. 

"  SIR :  I  am  directed  by  the  Electoral  Commission  to  inform  tho  Senate  that  it  has 
considered  and  decided  upon  tho  matters  submitted  to  it  under  the  act  of  Congress 
concerning  the  same  touching  tho  electoral  votes  from  the  State  of  Louisiana,  and 
herewith,  by  direction  of  said  Commission,  I  transmit  to  you  tho  said  decision,  in 
writing,  signed  by  the  members  agreeing  therein,  to  be  read  at  the  meeting  of  tho 
two  Houses  according  to  said  act.  All  the  certificates  and  papers  sent  to  the  Com 
mission  by  tho  President  of  the  Senate  are  herewith  returned. 

"Hon.  THOMAS  W.  FERRY, 

"President  of  the  Senate." 

The  question  being  on  the  adoption  of  the  order,  it  was  determined 
iu  the  affirmative,  and  the  letter  was  accordingly  signed,  as  follows: 

"NATHAN  CLIFFORD, 
"  President  of  the  Commission." 

Mr.  Commissioner  MILLER  offered  the  following  order: 

Ordered,  That  tho  President  of  the  Commission  sign  and  transmit  to  the  Speaker 

of  the  House  of  Representatives  the  following  letter : 

""WASHINGTON,  D.  C.,  February  10,  1877. 
"SiR:  T  am  directed  by  tho  Electoral  Commission  to  inform  tho  House  of  Rcpre- 

eentativeo  that  it  has  considered  and  decided  upon  the  matters  submitted  to  it  under 


the  act  of  Congress  concerning  the  same,  touching  tho  electoral  votes  from  tho 
State  of  Louisiana,  and  has  transmitted  said  decision  to  the  President  of  the  Sen 
ate,  to  be  read  at  the  meeting  of  tho  two  Houses,  according  to  said  act." 

"Hon.  SAMUEL  J.  RANDALL, 

'^Speaker  of  the  House  of  Representatives." 

The  question  being  on  the  adoption  of  the  order,  it  was  decided  in 
the  affirmative:  and  the  letter  was  accordingly  signed  as  follows : 

"NATHAN  CLIFFORD, 

"  President  of  the  Commission." 
On  motion  of  Mr.  Commissioner  ABBOTT, 

Ordered,  That  tho  injunction  of  secrecy  imposed  on  all  former  consultations  of 
tho  Commission  be  removed. 

At  eight  o'clock  and  fifty-seven  minutes  p.  m.  the  Commission  ad 
journed. 


SATURDAY,  February  17,  1877. 

The  Commission  met  at  four  o'clock  p.  m.,  pursuant  to  adjournment- ; 
and,  on  motion  of  Mr.  Commissioner  STROXG,  the  Commission  ad 
journed  until  Monday,  the  19th  instant,  at  four  o'clock  p.  m. 


MONDAY,  February  19,  1877. 

The  Commission  met  at  four  o'clock  p.  m.,  pursuant  to  adjournment ; 
and,  on  motion  of  Mr.  Commissioner  STRONG,  the  Commission  ad 
journed  until  Tuesday,  the  20th  instant,  at  four  o'clock  p.  m. 


TUESDAY,  February  20,  1877. 

The  Commission  met  at  four  o'clock  p.  m.,  pursuant  to  adjournment. 

Tho  Journal  of  the  16th,  17th,  and  1'Jth  instant,  respectively,  was 
read  and  approved. 

On  motion  of  Mr.  Commissioner  GAHFIELD,  the  Commission  tool?  a 
recess  till  half  past  six  o'clock  p.  in.  Before  tho  expiration  of  the  re 
cess,  at  six  o'clock  and  fifteen  minutes  p.  m.,  the  Commission  adjourned 
until  to-morrow  at  eleven  o'clock  a.  m. 


WEDNESDAY,  February  21,  1877. 

The  Commission  met  at  eleven  o'clock  a.  m.,  pursuant  to  adjourn 
ment,  all  tho  members  being  present. 

Oil  motion,  the  Commission  took  a  recess  until  one  o'clock  p.  m. 

The  Commission  re-assembled  at  one  o'clock  p.  m. 

The  Journal  of  yesterday  was  read  and  approved. 

Mr.  George  C.  Gorham,  Secretary  of  the  Senate,  appeared  and  pre 
sented  the  following  communication  ;  which  was  read  : 

HALL  OF  THE  HOUSE  OF  REPRESENTATIVES, 

February  21,  1S77. 
To  the  President  of  the  Commission : 

More  than  one  return  or  paper  purporting  to  bo  a  return  or  certificate  of  the 
electoral  votes  of  the  State  of  Oregon  having  been  received  and  this  day  opened  in 
tho  presence  of  the  two  Houses  of  Congress  and  objections  thereto  having  been 
made,  tho  said  returns,  with  all  accompanying  papers  and  also  the  objections  there 
to,  are  herewith  submitted  to  the  judgment  and  decision  of  tho  Commission,  as 
provided  by  law. 

T.  W.  FERRY, 
President  of  tlit  Senate. 

Mr.  Commissioner  ABBOTT.  I  move,  Mr.  President,  that  all  tho 
papers  received  be  printed. 

Mr.  Commissioner  EDMUNDS.  I  hope  that  order  will  not  be  en 
tered,  because  I  trust  we  shall  be  able  to  use  the  papers  here  as  they 
are  evidently  tolerably  brief,  and  no  doubt  both  sides  understand  ex 
actly  what  are  the  points.  I  hope  the  papers  will  be  here  for  tho 
mere  purpose  of  examining  them  ;  and  upon  them  it  is  understood  a 
question  of  law  arises.  The  only  doubt  about  the  printing  is  that  it 
may  involve  a  delay  until  to-morrow. 

The  PRESIDENT.    The  question  is  on  the  motion  to  print. 

Mr.  Commissioner  ABBOTT.    I  think  they  ought  to  be  printed. 

The  PRESIDENT.  One  of  the  assistant  secretaries  has  suggested 
to  me  that  they  are  pretty  long. 

Mr.  Commissioner  MILLER.  If  by  printing  is  meant  that  they  shall 
be  printed  when  it  is  convenient  to  send  them  out,  I  see  no  objection ; 
but  if  it  is  meant  that  they  shall  be  sent  out  at  once  to  be  printed,  I 
for  one  object  to  it.  I  think  wo  ought  to  get  along  with  this  case ; 
but  if  we  can  have  them  printed  by  to-night  or  to-niorrow  morning 
very  well,  wo  going  on  in  the  mean  time. 

Mr.  Commissioner  ABBOTT.  I  want  to  get  along  with  this  case  as 
fast  as  anybody  else.  Nobody  is  more  desirous  of  getting  on  fast  than  I 
am,  and  I  believe  I  have  given  evidence  of  it  generally  ;  but  I  do  not 
think  with  tho  bundle  of  papers  hero  submitted,  which  we  are  to  pass 
on,  that  wo  ought  to  pass  on  them  without  seeing  them  in  print.  I 
think  it  is  better  to  get  along  rightly  than  to  get  along  too  fast  and 
not  get  along  rightly. 

Mr.  Commissioner  EDMUNDS.  May  I  ask  if  there  are  not  dupli 
cates  of  each  set  ?  I  have  no  doubt  there  are.  Now,  Mr.  President,  if  I 
can  have  the  attention  of  my  brother,  Judge  ABBOTT,  I  understand, 
as  undoubtedly  tho  fact  is,  that  there  are  duplicates  of  each  of  the  con 
flicting  certificates;  and,  that  being  the  case,  I  have  no  objection  to 


120 


ELECTORAL  COMMISSION. 


the  order  to  print,  because  only  ono  set  need  go  away,  reserving  the 
question  of  what  shall  be  done  if  the  printing  is  not  completed  in  time. 

The  PRESIDENT.    The  question  is  on  the  motion  to  print. 

The  motion  was  agreed  to. 

Mr.  Commissioner  EDMUNDS.  Now,  Mr.  President,  I  ask  that  the 
papers  be  read,  that  wo  may  see  what  we  have  before  us. 

The  PRESIDENT.  Mr.  Commissioner  EDMUNDS  moves  that  one 
set  of  the  papers,  as  ho  understands  there  are  two,  be  read. 

Mr.  Commissioner  EDMUNDS.  By  that  I  mean  one  copy  of  each 
set. 

The  PRESIDENT.  The  question  is  on  the  motion  of  Mr.  Commis 
sioner  EDMUNDS. 

The  motion  was  agreed  to. 

The  PRESIDENT.    The  Secretary  will  read  the  papers. 

The  Secretary  read  as  follows : 

CERTIFICATE  No.  1. 
UNITED  STATES  OF  AMERICA, 

State  of  Oregon,  County  of  Multnomah,  ss  : 

We,  J.  C.  Cart  wrigbt,  "W.  H.  Oriel],  and  J.  "W.  "Watts,  being  each  duly  and  sever 
ally  sworn,  say  that  at  the  hour  of  twelve  o'clock  ra.  of  the  (6th)  sixth'  day  of  De 
cember,  A.  D.  1870,  wo  duly  assembled  at  the  State  capital,  in  a  room  in  the  capital 
building  at  Salem,  Oregon,  'which  was  assigned  to  us  by  the  secretary  of  state  of  the 
State  of  Oregon.  That  wo  duly,  on  said  (lay  and  hour,  demanded  of  the  governor 
of  the  State  of  Oregon  and  of  the  secretary  of  state  of  the  State  of  Oregon  certified 
lists  of  the  electors  for  President  and  Vice-President  of  the  United  States  for  the 
State  of  Oregon,  as  provided  by  the  laws  of  the  United  States  and  of  the  State  of 
Oregon ;  but  both  L.  F.  Grover,  governor  of  the  State  of  Oregon,  and  S.  F.  Chad- 
wick,  secretary  of  state  of  said  State,  then  and  there  refused  to  deliver  to  us,  or 
either  of  us,  any  such  certified  lists  or  any  certificate  of  election  whatever.  And 
being  informed  that  such  lists  had  been  delivered  to  one  K.  A.  Cronin  by  said  sec 
retary  of  state,  wo  each  and  all  demanded  such  certified  lists  of  said  E.  A.  Cronin, 
but  he  then  and  there  refused  to  deliver  or  to  exhibit  such  certified  lists  to  us  or 
either  of  us.  Whereupon  we  have  procured  from  the  secretary  of  state  certified 
copies  of  the  abstract  of  the  vote  of  the  State  of  Oregon  for  electors  of  President 
and  Vice-Presidont  at  the  presidential  election  held  in  said  State  November  7,  A. 
D.  1876,  and  have  attached  them  to  the  certified  list  of  the  persons  voted  for  by  us 
and  of  the  votes  cast  by  us  for  President  and  Vice-President  of  the  United  States, 
in  lieu  of  a  more  formal  certificate. 

"W.  H.  ODELL. 

J.  W.  "WATTS. 

JOHN  C.  CART-WRIGHT. 

Sworn  and  subscribed  to  before  me  this  Gth  day  of  December,  A.  D.  1670. 
[SEAL]  THOS.  II.  CANN, 

Notary  Public  for  State  of  Oregon. 

UNITED  STATES  OF  AMERICA, 
STATE  OF  OREGON,  SECRETARY'S  OFFICE, 
Salem,  December  C,  1876. 

I,  S.  F.  Chadwick,  do  hereby  certify  that  I  am  the  secretary  of  the  State  of  Ore 
gon  and  the  custodian  of  the  great  seal  thereof;  that  T.  H.  Cann,  esquire,  resident 
of  Marion  County,  in  said  State  of  Oregon,  was  on  the  Gth  day  of  December,  A. 
D.  1876,  a  notary  public  within  and  for  said  State,  and  duly  commissioned  such  by 
the  governor  of  the  State  of  Oregon,  under  its  great  seal,'  and  was  duly  qualified 
to  act  as  such  notary  public  by  the  laws  of  this  State,  as  it  fully  appears  by  the 
records  of  this  office  ;  that  as  said  notary  public  the  said  T.  H.  Canii  had,  on  the 
day  aforesaid,  to  wit,  December  6,  A.  D.  1876,  full  power  and  authority,  by  the  laws 
of  the  State  of  Oregon,  to  take  acknowledgments  of  all  instruments  in  -writing  and 
administer  oaths;  that  the  annexed  certificate  is  made  in  conformity  with  the 
laws  of  this  State ;  that  the  signature  thereto  of  T.  H.  Cann  is  the  genuine  signa 
ture  of  T.  H.  Caun,  notary  public ;  that  the  seal  affixed  to  said  acknowledgment 
is  the  official  seal  of  said  T.  H.  Cann,  notary  public ;  and  that  full  faith  and  credit 
should  be  given  to  his  official  acts  as  notary  public  aforesaid. 

In  witness  whereof  I  have  hereto  set  niy  hand  and  affixed  the  great  seal  of  the 
State  of  Oregon  the  day  and  year  first  above  written. 

[SEAL.]  S.  F.  CHADWICK, 

Secretary  of  the  State  of  Oregon. 

Abstract  of  votes  east  at  the  presidential  election  held  in  the  State  of  Oregon  November 
7,  1876,  for  presidential  electors. 


Counties. 

i 

S 
w 
£ 

rf 

1 

£ 

l-s 

J.  C.  Cartwright. 

Henry  Klippel. 

.3 

I 

o 

<5 
ri 

W.  B.  Laswell. 

X 
& 

6 
p 

F.  Sutherland. 

c3 

3 

rf 

Baker  ............ 

318 

319 

319 

549 

550 

Benton  

CIS 

615 

615 

567 

567 

Clackamas  

949 

950 

950 

724 

724 

Clatsop  

432 

432 

432 

386 

335 

386 

Columbia  

157 

156 

157 

179 

*  "r\A 

Coos  

571 

571 

571 

512 

516 

515 

Douglas  

131 
1  002 

131 

1  002 

131 

1  003 

124 

847 

124 

124 

3 

3 

3 

Grant  

315 

314 

316 

279 

Jackson  

585 

586 

Josephine  

209 

209 

20'' 

Lane  

949 

949 

949 

Lake  

173 

173 

173 

258 

2">8 

2~>8 

Linn  

1  323 

1  324 

1  323 

•  •  *  • 

*  * 

i  ^A 

Marion  

1  780 

1  782 

1  781 

Multnomah  .. 
Polk  

2,  124 
607 

2,  122 

608 

2,  12-2 

COS 

1,  525 

1,528 

1,  525 

2 

2 

2 

Tillamook  

119 

119 

119 

Umatilla  

486 

480 

486 

742 

Union  

366 

366 

366 

Wasco  

491 

491 

4!)3 

G'21 

6*H 

619 

Washington... 

693 

692 

093 

423 

424 

423 

810 

812 

674 

674 

674 

6 

6 

6 

Total  

15,  206 

15,300 

15,214 

14,  136 

14,  157 

14,  149 

509 

510 

507 

Simpson,  1;  Gray,  1;  Saulsbury,  1;  McDowell,  1. 


SALEM,  STATE  OF  OREGON : 

I  hereby  certify  that  the  foregoing  tabulated  statement  is  the  result  of  the  vote 
cast  for  presidential  electors  at  a  general  election  held  in  and  for  the  State  of  Ore 
gon  on  the  7th  day  of  November,  A.  D.  1876,  as  opened  and  canvassed  in  the  pres 
ence  of  his  oxci  llcncy  L.  F.  Grover,  governor  of  said  State,  according  to  law,  on 
the  4th  day  of  December,  A.  D.  1876,  at  two  o'clock  p.  m.  of  that  day,  by  the  secre 
tary  of  state. 

[rtEAL.J  S.  F.  CHADWICK, 

Secretary  of  State  of  Oregon. 

UNITED  STATES  OF  AMERICA, 
STATE  OF  OREGON,  SECRETARY'S  OFFICE, 

Salem,  December  6,  1876. 

I,  S.  F.  Chadwick,  secretary  of  the  State  of  Oregon,  do  hereby  certify  that  I  am 
the  custodian  of  the  great  seal  of  the  State  of  Oregon  ;  that  the  foregoing  copy  of 
the  abstract  of  votes  cast  at  the  presidential  election  hold  in  the  State  of  Oregon 
November  7,  1876,  for  presidential  electors,  has  been  by  me  compared  with  the 
original  abstract  of  votes  cast  for  presidential  electors  aforesaid,  on  file  in  this  of 
fice,  and  said  copy  is  a  correct  transcript  therefrom  aud  of  the  whole  of  the  said 
original  abstract  of  votes  cast  for  presidential  electors. 

In  witness  whereof  I  have  hereunto  sot  my  hand  and  affixed  the  great  seal  of  the 
State  of  Oregon  the  day  and  year  above  written. 

[SEAL.]  S.  F.  CHADWICK, 

Secretary  of  the  State  of  Oregon. 

List  of  votes  cast  at  an  election  for  electors  of  President  and  Vice-President  of  the 
United  States  in  the  State  of  Oregon  held  on  the  1th  day  of  November,  1876. 

FOR  PRESIDENTIAL  ELECTORS. 

"W.  H.  Odell  received  fifteen  thousand  two  hundred  and  six  (15,206)  votes. 
J.  W.  Watts  received  fifteen  thousand  two  hundred  and  six  (15,200)  votes. 
J.  C.  Cartwright  received  fifteen  thousand  two  hundred  and  fourteen  (15,214) 
votes. 

E.  A.  Crouin  received  fourteen  thousand  ono  hundred  and  fifty-seven  (14,157) 
votes. 

H.  Klippel  received  fourteen  thousand  one  hundred  and  thirty-six  (14,136)  votes. 
AV.  B.  Laswell  received  fourteen  thousand  ono  hundred  and  forty-nine  (14,149) 
votes. 
Daniel  Clark  received  five  hundred  and  nine  (509)  votes. 

F.  Sutherland  received  five  hundred  and  ten  (510)  votes. 
Bart  Carl  received  five  hundred  and  seven  (507)  votes. 

S.  W.  McDowell  received  throe,  (3,)  Gray  ono,  (1,)  Simpson  one,  (1,)  and  Salis 
bury  ono  (1)  vote. 

I,  S.  F.  Chadwick,  secretary  of  state  in  and  for  the  State  of  Oregon,  do  hereby 
certify  that  the  within  and  foregoing  is  a  full,  true,  and  correct  statement  of 
the  entire  vote  cast  for  each  and  all  persons  for  the  office  of  electors  of  President 
and  Vice-President  of  the  United  States  for  the  State  of  Oregon,  at  the  general 
election  held  in  said  State  on  the  7tli  day  of  November,  A.  D.  1876,  as  appears  by 
the  returns  of  said  election  now  on  file  in  my  office. 

[SEAL  ]  S.  F.  CHADWICK, 

Secretary  of  State  of  Oregon. 
STATES  OF  AMERICA, 
State  of  Oregon,  County  of  Marion,  ss: 

We,  W.  H.  Odell,  J.  C.  Cartwright,  and  J.  W.  Watts,  electors  of  President 
and  Yieo-Prenideut  of  the  United  States  for  the  State  of  Oregon,  duly  elected  aud 
appointed  in  the  year  A.  D.  1876,  pursuant  to  the  laws  of  the  United  States,  and  in 
the  manner  directed  by  the  1  aws  of  the  State  of  Oregon,  do  hereby  certify  that  at  a 
meeting  hold  by  us  at  Salem,  the  seat  of  government  in  and  for  the  State  of  Oregon, 
on  Wednesday,  the  6th  day  of  December,  A.  D.  1876,  for  the  purpose  of  casting 
our  votes  for  President  and  Vice-President  of  the  United  States — 

A  vote  was  duly  taken,  by  ballot,  for  President  of  the  United  States,  in  distinct 
ballots  for  President  only,  with  the  following  result : 

The  whole  number  of  votes  cast  for  President  of  the  United  States  was  three  (3) 
votes. 

That  the  only  person  voted  for  for  President  of  the  United  States  was  Ruther 
ford  B.  Hayes,  of  Ohio. 

That  for 'President  of  the  United  States  Rutherford  B.  Hayes,  of  Ohio,  received 
three  (3)  votes. 

In  testimony  whereof  we  have  hereunto  set  our  hands  on  the  first  Wednesday  of 
December,  in  the  year  of  our  Lord  ono  thousand  eight  hundred  and  seventy -six. 

W.  H.  ODELL. 
J.  C.  CARTWRIGHT. 
J.  W.  WATTS. 
UNITED  STATES  OF  AMERICA, 

State  of  Oregon,  County  of  Marion,  ss  : 

We,  W.  II.  Odell,  J.  C.  Cartwright,  and  J.  W.  Watts,  electors  of  President  and 
Vice-President  of  the  United  States  for  the  State  of  Oregon,  duly  elected  and  ap 
pointed,  in  the  year  A.  D.  1876,  pursuant  to  the  laws  of  the  United  States  and  in 
the  manner  directed  by  the  laws  of  the  State  of  Oregon,  do  hereby  certify  that  at  a 
meeting  held  by  us  at  Salem,  the  seat  of  government  in  and  for  the  State  of  Oregon, 
on  Wednesday,  the  6th  day  of  December,  A.  D.  1876,  for  the  purpose  of  casting' our 
votes  for  President  and  Vice-President  of  the  United  States — 

A  vote  was  duly  taken,  by  ballot,  for  Vice-President  of  the  United  States,  in 
distinct  ballots  for  Vice-President  only,  with  the  following  result : 

The  whole  number  of  votes  cast  for  Vice-Presideut  of  the  United  States  was  three 
(3)  votes. 

That  the  only  person  voted  for  for  Vice-President  of  the  United  States  was  Will 
iam  A.  Wheeler,  of  New  York. 

That  for  Vice-President  of  the  United  States  William  A.  Wheeler,  of  New  York, 
received  three  (3)  votes. 

In  testimony  whereof  we  have  hereunto  sot  our  hands  on  the  first  Wednesday  of 
December,  in  the  year  of  our  Lord  one  thousand  eight  hundred  and  seventy-six. 

W.  H.  ODELL. 
J.  C.  CARTAVRIGHT. 
J.  W.  WATTS. 

SALEM,  OREGON,  December  6,  1876—12  o'clock  m. 

This  being  the  day  and  hour  fixed  by  the  statutes  of  the  United  States  and  of 
the  State  of  Oregon  for  the  meeting  of  the  electors  of  President  and  Vice-President 
of  the  United  States  for  the  State  of  Oregon,  the  electors  for  President  and  Vice- 
President  of  the  United  States  for  the  State  of  Oregon  met  at  Salem,  the  seat  of 
government  of  said  State  of  Oregon,  at  twelve  o'clock  noon  of  the  fltk  day  of  De 
cember,  A.  D.  1876,  said  day  being  the  first  Wednesday  in  December. 

Present,  W.  H.  Odell  and  J.  C.  Cartwright. 

The  meeting  was  duly  organized  by  electing  W.  H.  Odell  chairman  and  J.  C. 
Cartwi  ight  secretary. 

The  resignation  of  J.  W.  Watts,  who  was  on  November  7,  A.  D.  1876,  duly  elected 
an  elector  of  President  and  Vice-President  of  the  United  States  for  the  State  of 
Oregon,  was  presented  by  W.  H.  Odell,  and,  after  being  duly  read,  was  unanimously 
accepted. 

There  being  but  two  electors  present,  to  wit,  W.  H.  Odell  and  J.  C.  Cartwright. 
and  the  State  of  Oregon  being  entitled  to  three  electors,  the  electors  present  pro 
ceeded  to  and  did  declare  that  a  vacancy  existed  in  the  electoral  college,  and  then 


ELECTORAL   COMMISSION. 


and  t'.iero,  under  and  by  virtue  of  tho  provisions  of  section  fifty-nine,  (59,)  title 
nine,  (9,)  chapter  fourteen,  (14,)  of  tho  General  Lawsof  Oregon.  (Deady  and  Lane's 
Compilation,)  the  sa'd  electors,  W.  H.  Oilcll  and  J.  0.  Cartwright.,  immediately,  by 
viea  VOCK  vote,  proceeded  to  (ill  said  vacancy  in  tho  electoral  college. 

J.  W.  Watts  received  the  unanimous  vote  of  all  tho  electors  present,  and  was 
thereupon  declared  duly  elected  to  the  office  of  elector  of  President  and  Vice- 
President  of  the  United  States  for  the  State  of  Oregon. 

Whereupon  tho  said  electors,  on  motion,  proceeded  to  vote  by  ballot  for  President 
of  the  United  States. 

The  whole  number  of  votes  cast  for  President  of  the  United  States  was  throe  (3) 
votes. 

The  only  person  voted  for  for  President  of  the  United  States  was  Kuthcrford  B. 
Hayes,  of  Ohio. 

For  President  of  tho  United  States,  Rutherford  B.  Hayes,  of  Ohio,  received  three 

The  said  electors  then,  on  motion,  proceeded  to  vote  by  ballot  for  Vice-President 
of  the  United  States. 

Tho  whole  number  of  votes  cast  for  Vice-Presidont  of  the  United  States  was 
three  (3)  votes. 

The  only  person  voted  for  for  Vice-President  of  tho  United  States  was  William 
A.  Wheeler,  of  New  York. 

For  Vice-President  of  the  United  States,  William  A.  Wheeler,  of  New  York, 
received  three  (3)  votes. 

i'ho  electors,  on  motion,  then  unanimously,  by  writing  under  their  hands,  ap- 
l''':ntrd  W.  11.  Odell  to  take  charge  of  and  deliver  to  the  President  of  tho  Senate, 
al  the  seat  of  Government,  Washington,  D.  C.-,  one  of  the  certificates  containing 
tho  lists  of  the  votes  of  said  electors  for  President  and  Vice-President. 

On  motion,  it  was  ordered  that  one  of  tho  certified  copes  of  the  abstract  and  can 
vass  of  the  entire  vote  of  tho  State  of  Oregon,  cast  at  the  presidential  election  held 
November  7,  A.  D.  1876,  for  electors  of  President  and  Vice-Presideut  of  the  United 
States  for  Oregon,  as  certified  and  delivered  to  the  electors  by  S.  F.  Chadwick,  sec 
retary  of  state  of  the  State  of  Oregon,  bo  attached  to  each  certificate  and  return  of 
the  list  of  persons  voted  for  by  the  electors  here  present  for  President  and  Vice- 
President  of  tho  United  States. 

The  electors  then  adjourned. 

W.  H.  ODELL, 

Chairman. 

JOHN  C.  CARTWRIGHT, 
Secretary. 

"Wo  hereby  certify  that  the  within  and  foregoing  is  a  true,  full,  and  correct  state 
ment  of  all  the  acts  and  proceedings  of  the  electors  of  President  and  Vice-President 
for  the  State  of  Oregon  at  swineeting  of  said  electors  held  at  Salem,  in  the  State  of 
Oregon,  on  t'.ie  Cth  day  of  December,  A.  D.  1876,  at  12  o'clock  noon  of  said  day. 

W.  H.  ODELL,  Elector. 
JOHN  W.  WATTS,  Elector. 
JOHN  C.  CARTWRIGHT,  Elector. 
SALEM,  OREGON,  December  6,  1876. 

We,  the  duly  appointed  and  elected  electors  of  President  and  Vice-President  of 
the  United  States  for  the  State  of  Oregon,  do  hereby  designate  and  appoint  W.  II. 
Odell  to  take  charge  of  and  deliver  to  the  President  of  the  Senate  of  tbo  United 
State,  at  the  seat  of  Government,  to  wit,  at  Washington,  District  of  Columbia,  be 
fore  the  first  Wednesday  in  January,  A.  D.  1877,  tho  certificates  and  papers  relat 
ing  to  the  vote  for  President  and  Vice-President  of  the  United  States,  cast  by  us  at 
Salom,  in  the  State  of  Oregon,  on  the  6th  day  of  December,  A.  D.  1876, 

W.  H.  ODELL. 
J.  C.  CART  WRIGHT. 
J.  W.  WATTS. 
Ballots. 
For  President  of  the  United  States;  Rutherford  B.  Hayes,  of  Ohio. 

(Indorsed)  W.  H.  ODELL 

For  Pre  ident  of  tho  United  States,  Rutherford  B.  Hayes,  of  Ohio. 

(Indorsed)  JNO.  C.  CARTWRIGHT. 

For  President  of  the  United  States,  Rutherford  B.  Hayes,  of  Ohio. 

(Indorsed)  J.  W.  WATTS. 

For  Vice-President  of  the  United  States,  William  A.  Wheeler,  of  New  York. 

(Indorsed)  W-  H.  ODELL. 

For  Vice-President  of  the  United  States,  William  A.  Wheeler,  of  New  York. 

(Indorsed)  JOHN  C.  CARTWRIGHT. 

For  Vice-President  of  the  United  States,  William  A.  Wheeler,  of  New  York. 

(Indorsed)  J.  W.  WATTS. 

To  the  honorable  electoral  college  in  and  for  the  State  of  Orego  for  President  and 

Vice-President  of  the  United  States : 
Whereas  I,  J.  W.  Watts,  did  receive  a  majority  of  the  legal  votes  cast  for  presi 
dential  electors  at  an  election  held  for  President  and  Vice-President  of  the  United 
States  on  the  7th  day  of  November,  A.  D.  187G,  as  appears  from  the  official  returns 
on  file  in  the  secretary  of  state's  office  in  and  for  said  State ;  and  whereas  there  has 
arisen  some  doubts  touching  my  eligibility  at  tho  time  of  such  election:  Therefore, 
I  hereby  tender  my  resignation  of  the  office  of  presidential  elector. 
Very  respectfully, 

J.  W.  WATTS. 
SALEM,  OK.,  December  6,  1876. 

CERTIFICATE  No.  2. 

STATE  OF  OUEGON,  EXECUTIVE  OFFICE, 

Salem,  December  6th,  1876. 

I,  L.  F.  Grover,  governor  of  the  State  of  Oregon,  do  hereby  certify  that,  at  a  gen 
eral  election  held  in  said  State  on  the  7th  day  of  November,  A.  D.  1876,  William 
H.  Odell  received  15,206  votes,  JohnC.  Cartwright  received  15,214  votes,  E.  A.  Cronin 
received  14,157  votes  for  electors  for  President  and  Vice-President  of  the  United 


electors  as  aforesaid  for  the  State  of  Oregon. 

In  testimony  whereof  I  have  hereunto  set  my  hand  and  caused  tho  seal  of  the 
State  of  Oregon  to  be  affixed  this  tho  day  and  year  first  above  written. 
[SEAL.]  LA  FAYETTE  GROVER, 

Gov.  of  Oregon. 
Attest: 

S.  F.  ClIADWICK, 

Secretary  of  State  of  Oregon. 

This  is  to  certify  that  on  tho  Cth  day  of  December,  A.  D.  1876,  E.  A.  Cronin,  one 
of  the  undersigned,  and  John  C.  Cartwright  and  William  H.  Odell,  electors,  duly 
appointed  on  the  7th  day  of  November,  A.  D.  1876,  as  appears  by  the  annexed  cer- 
t  ficate,  to  cast  the  vote  of  the  State  of  Oregon  for  President  and  Vice-President  of 
the  United  States,  convened  at  the  seat  of  government  of  said  State,  and  for  the 
purpose  of  discharging  their  duties  as  such  electors  ;  that  thereupon  said  John  C. 
Cartwright  and  William  H.  Odell  refused  to  act  as  such  electors ;  that  upon  such 
refusal  the  undersigned,  J.  N.  T.  Miller  and  John  Parker,  were  duly  appointed 
electors,  as  by  tho  laws  of  Oregon  in  such  cases  made  and  provided,  to  tin  the  va 


cancies  caused  by  the  said  refusal;  that  thereupon  tho  said  electors,  E.  A.  Cronin, 
J.  N.  T.  Miller,  and  John  Parker,  proceeded  to  vote  by  ballot,  as  by  law  provided,  for 
President  and  Vice-President  of  the  United  States,  they  being  duly  qualified  to  act 
as  such  electors,  and  the  electoral  college  of  said  State  having  been  duly  organized  ; 
that  upon  tho  ballots  so  taken  Rutherford  B.  Hayes,  of  the  State  of  Ohio,  received 
two  (2)  votes  for  President,  and  Samuel  J.  Tilden,  of  the  State  of  Now  York,  re 
ceived  one  (1)  vote  for  President,  and  that  William  A.  Whoe'er,  of  the  State  of 
New  York,  received  two  (2)  votes  for  Vice-President.  and  Thomas  A.  Ilendrieks, 
of  tho  State  of  Indiana,  received  one  ( 1 )  vote  for  Vice-Prosident ;  that  t  he  said  votes 
were  all  the  votes  cast  and  the  said  persons  were  all  the  persons  voted  for.  And 
wo  further  certify  that  tho  lists  hereto  attached  are  true  and  correct  lists  of  all  tho 
votes  given  for  each  of  the  persons  so  voted  for  for  President  and  Vice-President 
of  the  United  States. 

Done  at  the  city  of  Salem,  county  of  Marion,  and  State  of  Oregon,  this  6th  day  of 
December.  A.  D.  1876. 

E.  A.  CRONIN, 
J.  N.  T.  MILLER, 
JOHN  PARKER, 
Electors  for  the  State  of  Oregon,  to  cant  the  vote  of  said  State 

for  President  and  Vice-President  of  the  United  States. 

List  of  all  tho  persons  voted  for  by  the  electoral  college  of  the  State  of  Oregon, 
and  of  the  number  of  votes  cast  for  each  person ,  at  tho  city  of  Salem,  tho  seat  of 
government  of  said  State,  on  Wednesday ,  the  6th  day  of  December,  A.  D.  1876,  as 
provided  by  law,  for  President  of  the  United  States  : 

Rutherford  B.  Hayes,  of  Ohio,  received  two  (2)  votes 2 

Samuel  J.  Tilden,'  of  New  York,  received  one  (1)  vote 1 

Attest : 

E    A.  CRONIN, 
J.  N.  T.  MILLER, 
JOHN  PARKER, 

Electors. 

List  of  all  tho  persons  voted  for  by  the  electoral  college  of  the  State  of  Oregon, 
and  of  the  number  of  votes  cast  for  each  person  at  the  city  of  Salem,  the  seat  of 
government  of  said  State,  on  Wednesday,  the  Cth  day  of  December,  A.  D.  1876,  as 
provided  by  law,  for  Vice-President  of  the  United  States : 

William  A'  Wheeler,  of  New  York,  received  two  (2)  votes 2 

Thomas  A.  Hendricks,  of  Indiana,  received  one  (1)  vote 1 

Attest : 

E.  A.  CRONIN, 
J.  N.  T.  MILLER, 
JOHN  PARKER, 

Electors. 

We,  the  undersigned,  duly  appointed  electors  to  cast  the  votes  of  the  State  of 
Oregon  for  Presidential  and  Vice-President  of  tho  United  States,  hereby  certify  that 
the  lists  of  all  the  electoral  votes  of  the  said  State  of  Oregon  given  for  President  of 
the  United  States  and  of  all  the  votes  given  for  Vice-President  of  the  United  States 
are  contained  herein. 

E.  A.  CRONIN, 
J.  N.  T.  MILLER, 
JOHN  PARKER, 

Electors. 

The  undersigned,  Senators  and  members  of  the  House  of  Representatives  of  the 
United  States,  object  to  the  lists  of  tho  names  of  the  electors  E.  A.  Cronin,  J.  N.  T. 
Miller,  and  John  Parker,  one  of  whom,  E.  A.  Cronin,  is  included  in  tho  certificate 
of  La  Fayetto  Grover,  governor  of  Oregon,  and  to  tho  electoral  votes  of  said  State, 
signed  by  E.  A .  Cronin,  J.  N.  T.  Miller,  and  John  Parker,  being  the  certificate  sec 
ond  presented  by  the  President  of  the  Senate  to  the  two  Houses  of  Congress  in  joint 
convention,  for  the  reasons  following  : 

1.  Because  neither  of  said  persons,  E.  A.  Cronin,  J.  N.  T.  Miller,  nor  John  Parker, 
was  ever  appointed  elector  of  President  and  Vice-President  by  the  State  of  Oregon, 
either  in  the  manner  directed  by  the  Legislature  of  such  State  or  in  any  other  man 
ner  whatsoever. 

2.  Because  it  appears  from  the  records  and  papers  contained  in  and  attached  to 
the  certificate  of  W.  H.  Odell,  John  C.  Cartwright,  and  John  W.  Watts,  as  pre 
sented  by  the  President  of  the  Senate  to  tho  two  Houses  of  Congress  in  joint  con 
vention,  "that  said  W.  H.  Odell,  John  C.  Cartwrisrht,  and  John  W.  Watts  were  duly 
and  legally  appointed  electors  for  President  and  Vice-President  by  tho  State  of 
Oregon  in  the  manlier  directed  by  the  Legislature  thereof,  and  duly  cast  their  votes 
as  such. 

3.  Because  it  does  not  appear  from  the  face  of  the  certificate  of  La  Fayette  Grover, 
governor  of  the  State  of  Oregon,  attached  to  and  part  of  the  returns  of  the  votes  cast 
by  E.  A.  Cronin,  J.  N.  T.  Miller,  and  John  Parker,  that  such  certificate  was  issued 
by  the  governor  to  tho  three  persons  having  the  highest  number  of  votes  for  electors 
for  tho  State  of  Oregon,  and  were  duly  chosen  and  appointed  by  said  State,  accord 
ing  to  the  laws  thereof ;  but  was  issued  by  him  to  the  persons  whom  he  deemed  to 
bo  eligible  to  said  appointment,  although  one  of  such  persons,  E.  A.  Cronin,  was  not 
appointed  thereto  according  to  the  laws  of  said  State. 

4.  Because  it  appears  from  tho  certificate  of  S.  F.  Chadwick,  secretary  of  state, 
under  the  seal  of  tho  State  attached  to  and  made  a  part  of  the  returns,  and  certifi 
cate  of  W.  H.  Odell,  John  C.  Cartwright,  and  John  W.  Watts,  that  said  persons, 
W.  H.  Odell,  John  C.  Cartwright,  and  John  W.  Watts,  received  the  highest  num 
ber  of  votes  at  the  election  on  the  7th  day  of  November,  1876,  for  the  office  of  elect 
ors  of  President  and  Vico-President ;  and  that  the  secretary  of  state  on  tho  4th 
day  of  December,  following,  officially  declared  in  pursuance  of  law  that  they, 
Odell,  Cartwright,  and  Watts,  had  received  the  highest  number  of  votes;  and  that 
therefore  the  certificate  of  tho  governor  in  so  far  as  it  omitted  to  certify  the  name 
of  John  W.  Watts  as  one  of  tho  electors  appointed,  and  in  so  far  as  such  certifi 
cate  contained  the  name  of  E.  A.  Cronin  as  one  of  tho  electors  appointed,  fails  to 
conform  to  the  act  of  Congress  in  such  case  made  and  provided,  and  tho  laws  ot 
Oregon  in  that  behalf,  and  that  such  certificate  is,  as  to  said  Cronin,  without  author 
ity  and  of  no  effect. 

5.  Because  it  appears  from  both  certificates  that  W.  H.  Odell  and  John  C.  Cart 
wright,  a  majority  of  the  electoral  college,  were  duly  appointed  electors  by  tho  State 
of  Oregon  in  the  manner  directed  by  tho  Legislature  thereof ;  that  their  record  pre 
sented  to  the  President  of  the  Senate,  and  by  him  to  the  two  Houses  of  Congress, 
shows  that  a  vacancy  in  tho  office  of  elector  existed  on  tho  day  fixed  by  law  for  the 
meeting  of  tho  electors,  and  that  such  vacancy  was  filled  by  the  appointment  ot 
John  W.  Watta.  JQ^  H  MITCnELL, 

A.  A.  SARGENT, 

United  States  Senators. 
WILLIAM  LAWRENCE, 
HORATIO  C.  BURCHAIiD, 
JAMES  W.  McDILL, 
Members  House  of  Representatives. 

In  the  matter  of  the  electoral  vote  of  tho  State  of  Oregon  for  President  and  Vico- 
President  of  the  United  States : 
The  undersigned  United  States  Senators  and  members  of  tho  House  of  Rcpre- 


ELECTORAL  COMMISSION. 


Rontatives  make  the  following  objections  to  the  papers  purporting  to  be  the 'Cer 
tificates  of  the  electoral  votes  of  the  State  of  Oregon  signed  by  John  C.  Cartwright, 
William  H.  Odell,  and  John  W.  Watts : 

The  said  papers  have  not  annexed  to  them  a  certificate  of  the  governor  of  Oregon 
as  required  to  bo  made  aud  annexed  by  sections  136  aud  138  of  the  Revised  Statutes 
of  the  United  States. 

II. 

The  said  papers  Iiave  not  annexed  to  them  a  list  of  the  names  of  the  said  Cart- 
wright,  Odell,  and  Watts  as  electors,  to  which  the  seal  of  the  State  of  Oregon  was 
affixed  by  the  secretary  of  state,  and  signed  by  the  governor  and  secretary  as  re 
quired  by  section  CO  of  chapter  14,  title  9,  of  the  general  laws  of  Oregon. 

m. 

Thosaid  John  W.  Watts  therein  claimed  to  be  one  of  the  said  electors  was,  in  the 
month  of  February,  1873,  appointed  a  postmaster  at  La  Fayette,  in  the  Stateof  Ore 
gon,  and  was  duly  commissioned  and  qualified  an  such  postmaster,  that  being  an 
olh'co  of  trust  and  profit  under  the  laws  of  the  United  States,  and  continued  to  be 
and  act  as  such  postmaster  from  February,  1873,  until  after  the  13tli  day  of  Novem 
ber,  1876,  and  was  acting  as  such  postmaster  on  the  7th  day  of  November,  1876, 
when  presidential  electors  were  appointed  by  the  State  of  Oregon ;  and  that  he,  the 
eaid  John  W.  Watts,  was  ineligible  to  be  appointed  as  one  of  the  said  presidential 
electors. 

rv. 

When  the  governor  of  Oregon  caused  the  lists  of  the  names  of  the  electors  of  said 
State  to  be  made  and  certified,  such  lists  did  not  contain  the  name  of  said  John  W. 
Watts,  but  did  contain  the  names  of  John  C.  Cartwright,  William  H.  Odell,  and 
E.  A.  Cronin,  who  were  duly  appointed  electors  of  President  and  Viee-Presideut 
of  the  United  States  in  the  State  of  Oregon  on  the  7th  day  of  November,  1876. 

V. 

It  was  the  right  and  duty  of  the  governor  of  Oregon,  under  the  laws  of  that  State, 
to  give  a  certificate  of  election,  or  appointment  as  electors,  to  John  C.  Cartwright, 
William  n.  Odell,  and  E.  A.  Cronin,  they  being  the  three  persons  capable  of  being 
appointed  presidential  electors  who  received  the  highest  number  of  votes  at  the 
election  held  in  Oregon  on  the  7th  day  of  November,  187C. 

VI. 

The  said  John  C.  Cartwright  and  William  H.  Odell  had  no  right  or  authority  in 
law  to  appoint  the  said  Johu  W.  Watts  to  be  an  elector  on  the  Cth  day  of  Decem 
ber,  1876,  as  there  was  no  vacancy  in  the  office  of  presidential  elector  on  that  day. 

VI  I. 

The  said  John  C.  Cartwright  and  William  H.  Odell  had  no  right  or  authority  in 
law  to  appoint  the  said  John  W.  Watts  to  be  an  elector  on  the  6th  day  of  Decem 
ber,  1876,  inasmuch  as  they  did  not  on  that  day  compose  or  form  any  part  of  the 
electoral  college  of  the  State  of  Oregon  as  by  law  constituted. 

VIII. 

The  said  John  C.  Cartwright  and  William  H.  Odell  had  no  authority  to  appoint 
the  said  John  W.  Watts  to  be  an  elector  on  the  6th  day  of  December  1876,  because 
the  said  Watts  was  still  on  that  day  the  postmaster  at  La  Fayette,  in  the  State  of 
Oregon,  and  was  still  oil  that  day  holding  the  said  office  of  profit  and  trust. 
JAMES  K.  KELLY,  of  Oregon, 
HENRY  COOPER,  of  Tennessee, 
LEWIS  V.  BOGY,  of  Missouri, 
J.  E.  MCDONALD,  of  Indiana, 
J.  W.  STEVENSON,  of  Kentucky, 

Senators. 

,  DAVID  DUDLEY  FIELD,  of  New  York, 

J.  R.  TUCKER,  of  Virginia, 
LAFAYETTE  LANE,  of  Oregon, 
G.  A.  JENKS,  of  Pennsylvania, 
ANSEL  T.  WALLING>f  Ohio, 
HIESTER  CLYMER,  of  Pennsylvania, 
P.  D.  WIGGINTON,  of  California, 
E.  F.  POPPLETON,  of  Ohio, 
JNO.  L.  VANCE,  of  Ohio, 
FRANK  H.  KURD,  of  Ohio, 
J.  K.  LUTTRELL,  of  California, 

Representatives. 

/The  undersigned,  Senators  and  members  of  tho  House  of  Representatives  of  the 
United  States,  object  to  the  certificates  and  papers  purporting  to  bo  certificates  of 
the  electoral  votes  of  the  State  of  Oregon,  cast  by  E.  A.  Cronin,  J.  N.  T.  Miller, 
and  John  Parker,  and  by  each  of  them,  and  to  the  list  of  votes  by  them  and  each  of 
them  signed  and  certified  as  given  for  President  of  the  United  States  and  for  Vice- 
Presidout  of  the  United  States,  for  tho  following  reasons  : 

1.  Tho  said  E.  A.  Cronin,  J.  N.  T.  Miller,  and  John  Parker  were  not,  nor  was 
either  of  them,  appointed  an  elector  of  President  and  Vice-President  of  tho  United 
States  for  tho  State  of  Oregon. 

2.  For  that  W.  H.  Odell,  J.  C.  Cartwright,  and  J.  W.  Watts  were  duly  appointed 
electors  of  President  and  Vice-Presidcnt  of  the  United  States  for  the  State  of  Ore 
gon,  and  as  such  electors,  at  the  time  and  place  prescribed  by  law,  cast  their  votes 
for  Rutherford  B.  Hayes  for  President  of  the  United  States  and  for  William  A. 
Wheeler  for  Vice-President  of  the  United  States,  and  tho  lists  of  votes  signed,  cer- 
tified,  and  transmitted  by  such  electors  to  tho  President  of  the  Senate  arc  the  only 
true  and  lawful  lists  of  votes  for  President  and  Vice-President  of  tho  United 
States. 

3.  That  tho  snid  W.  H.  Odell,  J.  C.  Cartwright,  and  J.  W.  Watts  received  tho  high 
est  number  of  all  tho  votes  cast  for  electors  of  President  and  Vice-President  of  the 
United  States  by  the  qualified  voters  of  the  State  of  Oregon  at  the  election  held  in 
said  State  on  the  7th  day  of  November,  A.  D.  1876,  and'  tho  secretary  of  state  of 
the  State  of  Oregon  duly  canvassed  said  votes,  and  made  and  certified  under  his 
hand  and  the  great  seal  of  the  State  of  Oregon  and  delivered  to  said  W.  H.  Odell 
J.  C.  Cartwright,  and  J.  W.  Watts  two  lists  of  the  electors  of  President  aud  Vico- 
I  resident  of  the  United  States  elected  by  tho  qualified  voters  of  said  State  at  said 
election,  and  showing  that  said  W.  H.  Odell,  J.  C.  Cartwri«:ht,  and  J.  W.  Watts 
were  the  persons  having  tho  highest  number  of  votes  of  said  qualified  voters  at 
such  election  ami  were  elected,  which  certificate  is  dated  the  6th  day  of  December, 
A.  D.  1870,  and  which  lias  been  read  before  the  two  Houses  of  Congress-  by  reason 
ot  all  which  sn,id  Odell,  Cartwright,  and  Watts  wore  tho  lawful  electors  (if  Presi 
dent,  and  Vico-President  of  tho  United  States  for  the  State  of  Oregon. 

JOHN  H.  MITCHELL, 
A.  A.  SARGENT, 

Senators. 

WILLIAM  LAWRENCE 
EUGENE  HALE, 
GEO.  W.  McCRARY, 
N.  P.  BANKS. 
Members  of  the,  House  of  Representatives. 


Tho  PRESIDENT.  Two  objectors  to  certificate  No.  1  are  entitled 
to  be  heard.  Who  represent  tho  objectors? 

Mr.  Senator  KELLY.  Mr.  President  and  gentlemen  of  tho  Com 
mission,  I  will  open  the  case  on  the  part  of  the  objectors  to  the  first 
certificate.  I  should  like,  however,  a  few  minutes. 

Mr.  Commissioner  EDMUNDS.  What  other  objector  appears  to 
certificate  No.  1  ? 

Mr.  Senator  KELLY.    Mr.  Jcnks,  of  the  House  of  Represent;) fives. 

The  PRESIDENT.  Who  appears  for  the  objectors  to  certificate 
No.  2? 

Mr.  Senator  SARGENT.  Senator  Mitchell  of  Oregon,  and  Mr. 
Lawrence  of  Ohio  of  tho  House  of  Representatives. 

Mr.  Representative  JENKS.  Mr.Jr'resident  and  gentlemen,  before 
proceeding  with  the  hearing  of  the  cause  it  may  bo  necessary  tohnvo 
certain  testimony  obtained— the  certificate  of  appointment  and  com 
mission  of  J.  W.  Watts  as  postmaster  from  the  Post-Office  Depart 
ment,  and  also  the  certificate  of  appointment  and  commission  of  his 
successor.  I  applied  personally  to  that  Department  for  those  papers, 
and  they  declined  to  give  them  unless  ordered  by  the  Commission. 
We  would  ask  that  an  order  be  made  that  they  may  be  produced. 
We  also  desire  a  subpceua  for  two  witnesses,  Mr.  Watts  and  Senator 
Mitchell.  Senator  Mitchell,  however,  is  here,  and  I  suppose  will 
readily  respond. 

Mr.  Commissioner  HOAR.  Mr.  Jenks,  is  it  not  possible  for  you  to 
agree  with  the  other  side  as  to  tho  facts  ? 

The  PRESIDENT.  Please  wait  a  moment,  Mr.  HOAR.  Let  me 
suggest  that  the  application  had  better  be  made  by  counsel. 

Mr.  Representative  JENKS.  I  apprehend  that  it  is  not  important 
from  whom  the  application  comes.  Those  who  make  the  objection 
have  a  right  to  be  heard  personally.  It  is  only  to  save  time  that  wo 
make  the  application  now,  so  that  tho  witnesses  may  be  here  when 
wanted. 

Mr.  MERRICK.     It  is  done  at  the  suggestion  of  counsel. 

The  PRESIDENT.  The  request  is  before  the  Commission.  What 
order  shall  be  taken  ? 

Mr.  Commissioner  EDMUNDS.  I  move  that  tho  Commission  issue 
the  subpoena  as  requested  and  ask  for  certified  copies  of  the  papers 
wanted  to  be  furnished  by  the  Post-Office  Department.  Whether 
tho  evidence  will  be  competent  is  another  question. 

Tho  PRESIDENT.  Mr.  Commissioner  EDMUNDS  moves  that  tho 
Commission  grant  subpoenas  for  the  witnesses  named  and  also  an 
order  for  the  papers  called  for  from  the  Post-Office  Department. 

Mr.  Commissioner  EDMUNDS.    Are  the  witnesses  within  reach  ? 

Mr.  Senator  MITCHELL.  I  will  say  in  reference  to  the  witnesses 
that  Mr.  Jeuks  desires  that  they  are  here  in  tho  court-room  and 
will  respond  at  any  time,  whenever  the  Commission  determines  that 
it  is  proper  that  they  should  be  called. 

The  PRESIDENT.  Tho  question  is  on  the  motion  of  Mr.  Commis 
sioner  EDMUNDS. 

The  motion  was  agreed  to. 

Mr.  Senator  KELLY.  I  should  like  a  few  minutes'  time  to  gather 
together  some  books  before  proceeding. 

The  PRESIDENT.     How  much  timfi  do  you  wish  ? 

Mr.  Senator  KELLY.  Half  an  hour  or  any  time  that  will  suit  the 
Commission. 

Mr.  Commissioner  EDMUNDS.  Mr.  President,  I  move  that  the  Com 
mission  take  a  recess  for  half  an  hour. 

The  motion  was  agreed  to ;  and  (at  one  o'clock  and  forty  minutes 
p.  m.)  tho  Commission  took  a  recess  for  half  an  hour. 


opposition  to  Certificate  No.  1. 


At  two  o'clock  and  ten  minutes  p.  m.  the  Commission  re-assembled, 
all  the  members  being  present. 

The  objectors  were  also  present,  and  the  following  counsel : 
Richard  T.  Merrick,  csq.,  ~) 

George  Hoadly,  esq.,  (  T 

Ashbel  Green,  esq., 
Alexander  Porter  Morse,  esq.,   J 
Hon.  William  M.  Evarts,  \ 

Hon.  E.  W.  Stoughton,  ... 

Hon.  Stanley  Matthews,  f Iu  opposition  to  Certificate  No.  2. 

Hon.  Samuel  Shellabarger,         J 

The  PRESIDENT.  The  objectors  to  certificate  No.  1  may  proceed 
uuder  Rule  4,  two  hours  to  a  side. 

Mr.  Senator  MITCHELL.  I  desire  to  know  whether  the  objectors 
on  that  side  both  proceed  before  the  objectors  on  the  other  side? 

The  PRESIDENT.  They  may  both  speak  first.  Counsel  alternate, 
but  objectors  do  not  in  this  proceeding. 

Mr.  Senator  KELLY.  Mr.  President  and  gentlemen  of  the  Com 
mission,  the  first  objection  to  certificate  No.  1  on  which  I  shall  dwell 
is  this : 

The  said  J.  W.  Watts  therein  claimed  to  bo  ono  of  tho  said  electors  was,  in  tho 
month  of  February,  1873,  appointed  a  postmaster  at  La  Fayette,  in  tho  Stateof 
Oregon,  and  was  duly  commissioned  and  qualified  as  such  postmaster,  that  being 
an  otlico  of  trust  and  profit  under  the  laws  of  the  United  States,  and  continued  to 
bo  aud  act  as  such  postmaster  from  February,  1873,  until  after  tlio  13th  day  of  No 
vember.  ly~(i,  and  was  acting  as  such  postmaster  on  the  7th  day  of  November,  1876, 
when  presidential  electors  wove  appointed  by  tho  State  of  Oregon,  and  that  he,  tho 
said  John  W.  Watts,  was  ineligible  to  be  appointed  as  one  of  the  said  presidential 
electors. 

There  will  be  no  dispute,  I  presume,  of  the  facts  averred  here.  It 
is  true  beyond  doubt  that  this  Mr.  Wat  is  was  a  postmaster,  aud  I  do 


ELECTORAL  COMMISSION. 


123 


not  think  it  is  necessary  for  us  under  the  circumstances  to  offer  any 
proof  of  that,  because  the  view  we  take  of  it  is  that  that  matter  was 
found  by  the  returning  board,  and  the  returning  board  really  decided 
that  he  had  no  part  in  that  election.  I  think,  therefore,  it  will  be 
unnecessary  for  us  to  produce  proof  of  that  fact.  But  be  that  as  it 
may,  if  it  become  necessary  we  shall  establish  the  point. 

Now  what  is  the  result  of  those  facts  ?  I  refer  to  the  Constitution  of 
the  United  States : 

Each  State  shall  appoint,  in  such  manner  as  tho  Legislature  thereof  may  direct,  a 
number  of  electors,  equal  to  tho  whole  number  of  Senators  ami  Representative!  to 
which  the  State  may  bo  entitled  in  tho  Congress  :  but  no  Senator  or  Representa 
tive,  or  per.son  holding  an  office  of  trust  or  profit  under  the  United  States,  shall  bo 
appointed  an  elector. 

The  question  occurs,  is  this  an  office  of  profit  or  trust  ?  If  so,  the 
constitutional  inhibition  is  as  clear  as  the  English  language  can 
iM-ike  it.  No  person  shall  be  appointed  an  elector  who  holds  an  office 
of  trust  or  profit.  On  the  first  point  whether  it  is  an  office  of  trust  or 
profit,  I  will  refer  in  the  first  place  to  the  fifteenth  volume  of  Califor- 
i.i.i  Reports,  tho  case  of  Searcy  vs.  Grow,  reported  on  pages  120  and 
I'il.  I  will  read  only  so  far  as  may  be  necessary  and  no  further,  be- 
:  ;iiise  I  do  not  wish  my  time  to  be  consumed  in  reading  unnecessary 
matter: 

This  case  was  before  us  at  the  last  term,  and  was  decided  upon  a  point  not  now 
presented.  The  proceeding  is  a  contest  for  the  office  of  sheriff  of  Siskiyou  County. 
Oiow,  tho  appellant,  was  returned  as  elected  to  the  office  at  the  September  elec 
tion.  1859.  Tho  ground  of  contest  is  that,  at  the  time  of  the  election,  ho  was  post 
master  in  tho  town  of  Yreka,  and  that  tho  compensation  of  the  office  exceeded 
§500  per  annum.  Tho  court  below  found  for  the  contestant,  and  Grow  appeals. 

I  call  attention  to  this  : 

The  court  below  found  for  the  contestant. 

That  is,  for  the  person  next  highest.  I  shall  dwell  upon  that  in  an 
after-portion  of  the  argument,  to  show  that  the  person  next  highest 
to  the  ineligible  candidate  received  the  office. 

The  constitution,  in  the  twenty-first  section  of  tho  fourth  article,  provides :  "  No 
person  holding  any  lucrative  office  under  tho  United  States,  or  any  other  power, 
whall  be  eligible  to  any  civil  office  of  profit  under  this  State  :  Provided,  That  offices 
in  the  militia  to  which  there  is  attached  no  annual  salary,  or  local  officers  and  post 
masters  whose  compensation  does  not  exceed  £500  per  annum,  shall  not  be  deemed 
lucrative."  The  act  of  tho  Legislature,  prescribing  the  mode  of  contesting  elections 
and  the  grounds  of  contest,  makes  the  fact  that  the  returned  candidate  wa.s  inoli  - 
gible  at  the  time  of  the  election,  ono  of  those  grounds.  Grow  was  postmaster  at 
the  time  of  the  election,  but  had  resigned  at  the  time  of  his  qualification.  It  is  in 
proof,  and  so  found,  that  tho  income  of  the  office  of  postmaster  was  sonie?l,400,  but 
thr.t  the  expenses  of  assistant,  rent,  &c.>  were  some  81,000  per  annum,  so  that  the 
net  sum  received  or  enjoyed  by  Grow  was  less  than  §500. 

The  counsel  for  the  appellant  contends  that  the  true  meaning  of  the  Constitu 
tion  is  that  the  person  holding  the  Federal  office  described  in  the  twenty -first  sec 
tion  is  forbidden  to  take  a  civil  State  office  while  so  holding  the  other  ;  but  that  he 
is  capable  of  receiving  votes  cast  for  him,  so  as  to  give  him  a  right  to  take  the 
State  office  upon  or  after  resigning  the  Federal  office.  But  we  think  the  plain 
meaning  of  the  words  quoted  is  the  opposite  of  this  construction.  The  language  is 
not  that  the  Federal  officer  shall  hold  a  State  office  while  ho  is  such  Federal 
officer,  but  that  he  shall  not  while  in  such  Federal  office  bo  eligible  to  the  State 
office.  We  understand  the  word  eligible  to  mean  capable  of  being  chosen,  the 
subject  of  selection  or  choice.  The  people  in  this  case  were  clothed  with  this 
power  of  choice ;  their  selection  of  the  candidate  gave  him  all  the  claim  to  tho 
office  which  he  has  ;  his  title  to  the  office  conies  from  their  designation  of  him  as 
sheriff.  But  thoy  could  not  designate  or  choose  a  man  not  eligible ;  i.  e.,  not 
capable  of  being  selected.  They  might  select  any  man  they  chos^,  subject  only  to 
this  exception,  that  the  man  they  selected  was  capable  ot  takiog  what  they  had 
the  power  to  give. 

we  do  not  see  how  the  fact  that  ho  became  capable  of  taking  office  after  they  had 
exhausted  their  power  can  avail  the  appellant.  If  he  was  not  eligible  at  the  time 
the  votes  were  cast  for  him,  the  election  failed.  "We  do  not  see  how  it  can  bo 
argued  that,  by  the  act  of  the  candidate,  the  votes  which,  when  cast,  were  ineffect 
ual,  because  not  given  for  a  qualified  candidate,  became  effectual  to  elect  him  to 
office. 

Can  it  be  contended  that,  if  Grow  had  not  been  a  citizen  of  tho  county  or  of  the 
State  at  the  time  of  the  election,  or  had  been  an  alien  at  that  time,  the  bare 
fact  that  he  did  so  become  a  citizen  at  the  time  he  qualified  would  entitle  him  to 
the  office?  Or  suppose  a  man,  when  elected,  under  sentence  and  conviction  for 
crime — if  such  a  case  can  be  supposed — would  a  pardon  before  qualification  give 
him  a  right  to  hold  the  office  1 

When  tho  words  of  the  Constitution  are  plain,  we  cannot  go  into  curious  specu 
lation  of  the  policy  thoy  were  meant  to  declare.  It  may,  however,  have  been  a 
part  of  the  policy  of  the  provision  quoted  to  prevent  the  employment  of  Federal 
patronage  in  a  State  election. 

I  refer  to  that  case  as  conclusive  if  the  law  stated  be  sound  ;  and 
here  I  may  just  as  well  as  at  any  other  time  call  attention  to  the 
marked  distinction  that  exists  between  a  person  who  is  ineligible  or 
incapable  of  being  appointed  and  one  who  may  hold  the  office.  If  a 
person  may  hold  the  office,  ho  may  bo  elected  while  he  is  under  dis 
qualifications,  and  if  he  becomes  qualified  at  the  time  of  holding  it 
is  sufficient.  For  instance  lot  us  refer  to  the  provisions  of  the  Con 
stitution  of  the  United  States  as  to  the  election  of  Senators  and 
Members  of  the  House  of  Representatives : 

No  person  shall  be  a  Senator  who  shall  not  have  attained  to  the  ago  of  thirty 
years. 

No  person  shall  be  a  Representative  who  shall  not  have  attained  a 
certain  number  of  years  and  have  certain  other  qualifications.  "No 
person  shall  be  a  Senator;"  that  is,  while  he  may  be  disqualified  be 
fore,  yet  if  the  disqualification  is  removed  when  he  becomes  a  Sena 
tor  or  Representative,  he  can  hold  the  office.  For  instance,  a  man  is 
holding  the  office  of  governor  this  day,  a  State  office  ;  ho  has  been 
elected  Senator  while  so  holding  the  office.  It  is  no  bar  to  him  tak 
ing  his  seat  on  the  4th  of  March  next  if  on  that  day  he  does  not  hold 
the  office  of  governor.  That,  however,  is  a  very  different  case  from 
this  which  strikes  at  the  beginning  of  the  matter;  that  is,  where  the 
prohibition  is  to  tho  election,  or,  in  this  instance,  to  the  appointment. 


Now,  when  does  the  appointment  begin  ?  What  is  tho  day  of  ap 
pointment?  It  is  contended  or  at  least  was  by  other  gentlemen  in 
Oregon,  it  was  contended  by  Mr.  Watts  that  he  could  hold  the  office 
of  elector  if  he  was  eligible  at  the  time  the  vote  was  cast;  that  tho 
appointment  was  not  complete  until  the  certificate  was  given,  and  I 
here  say,  if  it  was  not  complete  until  the  certificate  was  given,  it  WHS 
never  completed  at  all,  because  he  never  got  one.  But  he  contends 
that  the  appointment  was  not  perfect  by  the  election  of  the  7th  of 
November,  but  was  perfected  when  the  canvass  of  votes  was  made. 
That  is  a  fallacious  position.  It  cannot  be  maintained  because  the 
returns  of  a  canvass  are  merely  evidence  of  appointment,  they  are 
not  the  appointment  itself.  The  Constitution  gives  the  right  to  Con 
gress  to  appoint  the  time  of  holding  the  election  ;  and  section  i:'l  of 
the  Revised  Statutes  provides  : 

The  electors  of  President  and  Vice-President  shall  bo  appointed,  in  each  State, 
on  the  Tuesday  next  after  the  first  Monday  in  November,  in  every  fourth  year  suc 
ceeding  every  election  of  a  President  and  Vice-President. 

They  must  be  appointed  on  that  day ;  if  they  are  not  appointed  on 
that  day  they  are  not  appointed  at  all.  I  contend,  therefore,  that  tho 
appointment  of  Mr.  Watts,  if  it  was  not  made  on  the  7th  day  of  Novem 
ber,  could  not  be  made  at  any  other  time  by  a  canvass  of  the  votes. 
The  mere  evidence  of  a  fact  is  not  the  fact  itself.  That  I  am  correct 
in  that  position  I  think  there  can  be  no  doubt.  So  it  was  held  by 
the  court  in  California. 

I  refer  now  to  another  matter,  to  the  election  in  the  State  of  Ver 
mont.  Of  course  I  do  not  know  all  the  facts  attending  it  except 
those  which  were  current  at  the  time  or  shortly  after  tho  election  ; 
but  as  nearly  as  I  can  recollect  them  they  are  these  :  A  man  by  tho 
name  of  Sollace  was  a  postmaster  at  the  time  of  the  election  on  the 
7th  of  November  ;  he  resigned  a  few  days  afterward ;  he  was  a  can 
didate  for  elector.  The  Legislature  of  Vermont  convened,  I  do  not 
know  whether  by  proclamation,  but  I  think  the  honorable  Senator 
from  Vermont  [Mr.  EDMUNDS]  stated  some  time  ago  that  it  was  by 
virtue  of  some  law  in  that  State,  without  proclamation  of  the  gov 
ernor.  At  all  events  the  Legislature  of  that  State  convened.  They 
took  this  matter  into  consideration  ;  they  declared  virtually,  I  do  not 
know  whether  by  resolution  or  otherwise,  that  Sollace  was  not  ap 
pointed  on  that  day,  and  proceeded  by  legislative  enactment,  as 
prescribed  by  the  constitution,  to  fill  that  vacancy  occasioned  by  a 
failure  to  elect.  It  was  under  this  section  of  the  Revised  Statutes,  I 
presume : 

SEC.  134.  Whenever  any  State  has  held  an  election  for  tho  purpose  of  choosing 
electors,  and  has  failed  to  make  a  choice  on  the  day  prescribed  by  law,  the  electors 
may  bo  appointed  on  a  subsequent  day,  in  such  a  manner  as  the  Legislature  of 
such  State  may  direct. 

So  the  State  of  Vermont  in  its  sovereign  capacity  declared  that  a 
postmaster  was  an  officer  holding  an  office  of  trust  and  profit  under 
the  United  States,  and  that  there  was  a  failure  to  elect,  and  they  pro 
ceeded  to  provide  for  the  case.  So  in  Rhode  Island  :  Mr.  Corliss  was 
a  centennial  commissioner  under  the  United  States.  Under  the  pe 
culiar  provisions  of  many  of  tho  New  England  States  the  governor 
has  the  right  to  submit  questions  of  law  tothecourts.  The  governor 
of  Rhode  Island  did  submit  the  question  to  the  supreme  court  of 
Rhode  Island.  There  was  one  dissenting  voice  as  to  whether  the 
position  of  centennial  commissioner  was  an  office  of  trust  or  profit. 
The  majority  of  the  court  held  that  it  was,  and  the  unanimous  voice 
of  the  court  was  that,  if  it  was  an  office  of  trust  or  profit,  the  person 
who  had.  been  voted  for  was' not  elected,  and  that,  not  being  elected, 
there  was  a  failure  to  elect,  and  the  Legislature  proceeded  to  provide 
for  the  case. 

There  are  two  Legislatures  who  have  established  this  fact  clearly 
beyond  doubt  that  a  person  holding  an  office  of  profit  or  trust  under 
the  United  States  could  not  be  an  elector,  and  that  a  resignation  of 
the  office  after  the  election  did  not  make  him  qualified. 

In  addition  to  that,  let  me  refer  to.  what  was  said  by  a  committee 
appointed  by  the  Senate  and  House  of  Representatives  in  1837  of 
which  Mr.  Grundy  was  chairman.  It  was  composed  on  the  part  of 
the  Senate  of  Felix  Grundy,  Henry  Clay,  and  Silas  Wright,  certainly 
three  persons  who  ought  to  carry  weight.  Wherever  they  signed 
their  names  to  any  document  of  a  political  character  it  ought  to  carry 
conclusive  weight  as  to  its  integrity  and  its  worth.  I  do  not  care 
about  reading  it  all,  but  I  will  read  a  portion  of  it.  Certain  post 
masters  had  been  elected  electors  in  North  Carolina,  Connecticut,  and 
New  Hampshire  ;  but  it  made  no  difference  at  that  time  whether  their 
votes  were  disallowed  or  not,  as  it  would  not  change  tho  result  of  tho 
election,  so  there  was  nothing  done  in  the  matter,  but  the  committee 
gave  this  opinion  in  their  report. 

The  committee  are  of  opinion  that  the  first  section  of  the  second  article  of  tho 
Constitution,  which  declares  that  "  no  Senator  or  Representative,  or  person  liold- 


ging  their  official  po^s 
the  elections  of  President  and  Vico-President  of  the  United  States.  This  provis 
ion  of  the  Constitution,  it  is  believed,  excludes  and  disqualifies  deputy  postmasters 
from  the  appointment  of  electors  ;  and  the  disqualification  relates  to  the  time  of 
the  appointments,  and  that  a  resignation  of  tho  office  of  deputy  postmaster  after 
his  appointment  as  elector  would  not  entitle  him  to  vote  as  elector  under  tho  Con 
stitution. 

In  the  debate  ensuing  in  the  House  of  Representatives  upon  the 
report  of  this  joint  committee  Mr.  Francis  Thomas,  chairman  of  the 
House  committee,  said  that — 


134 


ELECTORAL  COMMISSION. 


Tho  committee  came  unanimously  to  the  conclusion  that  thoy  (the  postmasters  in 
question)  were  not  eligible  at  the  time  thoy  were  elected,  and  therefore  the  whole 
proceeding  was  vitiated  ab  initio. 

Mr.  Commissioner  HUNTON.  Can  you  furnish  me  with  a  copy 
of  that  brief  ? 

Mr.  Senator  KELLY.     I  will. 

Mr.  Representative  LAWRENCE.    Those  postmasters  voted. 

Mr.  MERRICK.  Tho  briefs  have  been  sent  for  and  will  bo  here  in 
a  few  minutes. 

Mr.  Senator  KELLY.  I  suppose  they  did  vote,  but  I  do  not  know ; 
their  votes,  however,  made  no  difference  in  the  result.  Hero  I  will 
call  attention  to  this  fact— it  is  a  little  out  of  the  way,  but  it  is  an 
answer  to  a  suggestion — I  contend  that  a  State  has  the  power  to  en 
force  the  Constitution  if  the  Federal  Government  does  not.  I  contend 
that  every  State  has  a  right  to  exclude  Federal  officers.  Here  the 
mandate  of  the  Constitution  is  clear.  If  other  States  have  permitted 
it  to  be  violated,  the  State  of  Oregon  has  not.  If  other  States  have 
failed  to  take  advantage  of  the  provisions,  the  State  of  Oregon  has 
decided  that  the  Constitution  shall  be  obeyed ;  and  I  contend  that 
whatever  may  have  been  done  in  1837  has  no  application  now.  The 
mandate  is  clear  that  these  persons  shall  not  be  appointed  electors, 
and  each  State  has  a  right  to  appoint  presidential  electors  in  its  own 
way,  and  if  the  law  of  the  State  excludes  these  men  from  that  office, 
the  State  has  a  perfect  right  to  exclude  them,  and  the  decision  in 
this  case  baa  done  it.  1  do  not  see  how  anything  can  be  plainer  than 
this,  and  as  I  have  dwelt  long  enough  on  the  point  I  will  leave  it. 

The  next  question  presented  is,  if  Mr.  Watts  was  not  eligible,  then 
was  Mr.  Cronin,  who  received  the  next  highest  number  of  votes, 
elected  ?  It  is  impossible  for  me  to  refer  to  all  the  decisions  in  the 
brief  space  of  one  hour ;  I  must  necessarily  be  hurried ;  and  I  will, 
therefore,  only  cite  a  few  to  show  this  fact,  that  where  a  person  who 
is  ineligible  has  received  the  highest  number  of  votes,  the  next  high 
est  takes  the  election.  It  has  been  so  decided  in  Indiana,  in  Mary 
land,  and  in  Maine,  and  it  was  confirmed  by  legislative  enactment 
in  the  latter  State,  and  I  contend  that  in  California  this  is  the  rule. 
I  shall  refer  to  the  decisions  in  support  of  that  position.  On  account 
of  the  rapidity  with  which  my  time  is  going,  I  will  refer  to  the  brief 
more  than  I  will  to  the  law-books.  Here  is  what  is  said  in  Gulick  vs. 
Now,  14  Indiana  Reports,  page  93: 

The  governor  may  determine,  ovon  against  the  decision  of  a  board  of  canvass 
ers,  whether  an  applicant  is  entitled  to  receive  a  commission  or  not,  where  the  ob 
jection  to  his  right  to  receive  it  rests  upon  the  ground  that  the  constitutional  pro 
hibition  is  interposed.  If  the  governor  should  ascertain  that  he  has  commissioned 
a  person  who  is  ineligible  to  the  oflice  he  may  issue  another  commission  to  the  per 
son  legally  entitled  thereto.  Where  a  majority  of  the  ballots  at  an  election  were 
for  a  person  not  eligible  to  the  office  under  1  ho  Constitution  it  was  held  that  the 
ballots  cast  for  such  ineligible  person  were  ineffectual,  and  that  the  person  receiv 
ing  the  greatest  number  of  legal  votes,  though  not  a  majority  of  the  ballots,  was 
duly  elected  and  entitled  to  the  office.  Tho  mayor  of  a  city,  under  the  general  law, 
has  jurisdiction  as  a  judicial  officer  throughout  the  country,  and  the  voters  of  the 
country  are  therefore  chargeable  with  notice  of  his  iueligibility  under  the  Consti 
tution  to  any  office  other  than  a  judicial  one  during  the  term  for  which  ho  was 
elected. 

To  the  same  effect  are  the  cases  in  41  Indiana,  572,  and  15  In 
diana,  327.  As  I  said  before,  it  is  the  doctrine  in  Maine,  so  adjudged 
by  the  supreme  court  upon  a  question  submitted  by  the  Legislature  to 
the  court,  and  so  held.  I  have  referred  already  to  the  case  of  Searcy 
vs.  Grow,  in  15  California.  In  that  case — 

The  ground  of  contest  is  that  at  the  time  of  the  election  he  was  postmaster  in 
the  town  of  Yreka,  and  that  the  compensation  of  tho  office  exceeded  $500  per  an 
num.  The  court  below  found  for  the  contestant,  and  Grow  appeals. 

Grow  was  the  postmaster.  The  office  was  adjudged  to  tho  contest 
ant  in  that  case. 

Now,  there  are  facts  that  we  cannot  produce  here,  I  suppose,  though 
taken  before  a  committee  of  the  Senate,  showing  that  notice  of  the 
disqualification  was  given  to  a  great  mauy  voters  in  this  case  ;  that 
Mr.  Watts  had  proclaimed  at  a  meeting  in  Portland,  one  of  the  largest 
meetings  held  there,  that  ho  was  postmaster ;  the  fact  that  he  was 
postmaster  was  declared  at  Oregon  City;  it  was  published  in  a  news 
paper  published  in  his  own  town,  and  also  in  a  paper  published  in  Port- 
laud;  but  these  facts  I  cannot,  I  suppose,  bring  before  this  tribunal. 
I  contend,  however,  as  matter  of  law  and  upon  principle,  that  in  Ore 
gon  the  next  highest  person  to  an  ineligible  candidate  takes  tho 
place.  Wo  have  in  our  constitution  this  clause  : 


or  persons 
ectod. 


In  all  elections  held  by  the  people  under  this  constitution  tho  person 
•who  shall  receive  the  highest  number  of  votes  shall  be  declared  duly  el 

There  are  certain  prohibitions  in  our  constitution,  among  others 
that  a  person  who  is  a  defaulter  shall  not  be  elected  ;  a  person  who 
has  sent  a  challenge  to  fight  a  duel  shall  not  be  elected;  a  man  who 
has  been  convicted  of  an  infamous  crime  shall  not  be  elected.  Now, 
can  it  be  contended,  taking  these  clauses  together,  that  when  the 
constitution  says  the  person  who  receives  the  highest  number  of  votes 
shall  bo  declared  duly  elected  the  people  can  elect  a  person  who  has 
been  convicted  of  felony,  a  defaulter,  one  who  has  fought  a  duel  or 
sent  a  challenge  ?  No,  sir,  they  must  bo  construed  together ;  and 
thoy  mean  this,  that  tho  person  who  is  qualified  to  receive  tho  votes 
shall  be  elected  if  he  receives  the  highest  number  of  votes,  and  if  the 
person  having  the  most  votes  is  ineligible,  tho  qualified  persou  re 
ceiving  the  next  highest  number  shall  be  declared  elected. 

Again,  the  Constitution  of  tho  United  States  says  that  persons  shall 


be  elected  electors  on  the  day  prescribed  by  Congress ;  Congress  has 
fixed  the  day;  and  tho  law  of  Oregon  provides : 

On  tho  Tuesday  next  after  tho  first  Monday  in  November,  1864,  and  every  four 
years  there  if  tor  there  shall  be  elected  by  the  qualified  electors  of  this  State,  as 
many  electors  of  President  and  Vicc-Presidcnt  aa  this  State  may  bo  entitled  to  elect 
of  Senators  and  Ileprosoutatives  in  Congress. 

There  is  a  positive  injunction  that  they  shall  be  elected  on  that 
day;  there  is  no  authority  to  hold  an  election  after  that  time  ;  and  I 
contend  according  to  principle  that  the  first  election  should  decide  the 
whole  matter  because  it  is  impossible  to  convene  the  electors  at  a 
subsequent  time  and  hold  a  now  election  to  supply  a  vacancy.  In  all 
those  cases  whore  it  is  held  that  the  next  highest  to  tho  ineligible 
candidate  is  not  elected,  it  is  because  it  may  be  referred  to  the  people 
to  vote  again  upon  the  question;  but  here  they  cannot  do  that.  Tho 
power  of  the  people  having  been  exhausted,  they  cannot  vote  a  sec 
ond  time.  They  have  not  time  to  do  it,  because  the  presidential 
electors  vote  within  thirty  days  after  the  State  election,  so  that  it  is 
impossible  to  hold  a  second  election,  and  necessarily  the  first  one 
must  decide  the  matter.  The  three  highest  eligible  candidates  must 
be  chosen  then  or  tho  State  will  have  no  representation;  there  will 
be  a  failure  to  elect  one  person,  and  the  State  will  lose  its  rights. 
Tho  position  I  take  hero  is  that  there  is  a  positive  injunction  that  the 
State  must  do  that.  Tho  law  is  mandatory.  It  says  the  election  must 
take  place  on  that  day ;  three  electors  must  be  chosen  on  that  day. 

A  State  cannot  elect  a  man  that  the  Constitution  says  cannot  bo 
elected  ;  and  therefore  if  three  must  be  on  that  day,  it  must  be  the 
three  highest  qualified  persons.  It  is  different,  I  contend,  from  or 
dinary  cases  of  office  where  a  majority  not  being  had  the  matter  is 
referred  back  to  the  people.  A  plurality  elects  in  tho  State  of  Oregon. 
And  I  may  as  well  here  state  the  difference  between  the  case  of  Ab 
bott,  which  was  before  the  Senate  of  the  United  States  a  few  years 
ago,  and  this  case.  Mr.  Abbott  claimed  that  he  was  elected  Senator 
from  North  Carolina  because  Mr.  Vance,  his  competitor,  was  ineligi 
ble.  Ho  received  but  a  few  votes.  The  Senate  rejected  him  and  for 
a  very  good  reason  ;  not  because  Mr.  Vance  was  not  ineligible,  but  be 
cause  the  law  regulating  tho  election  of  Senators  says  that  tho  person 
receiving  the  highest  number  of  votes,  provided  it  shall  boa  majority 
of  all  the  senators  and  representatives  of  the  Legislature  present,  shall 
be  elected,  and  he  must  have  that  majority.  No  person  contended 
that  Abbott  had  such  a  majority.  In  this  case  it  is  not  required  that 
a  man  shall  have  a  majority,  but  a  plurality  or  tho  highest  number 
of  votes  ;  that  is,  as  I  contend,  tho  highest  number  of  votes  if  he  bo 
eligible  to  bo  elected. 

The  next  point  which  I  shall  discuss  is  the  one  which  will  probably 
be  most  strenuously  contested,  and  therefore  I  shall  refer  to  it  at 
greater  length.  It  is  said  that  the  governor  had  no  right  to  decide 
this  matter,  that  it  was  a  judicial  question  and  not  a  question  for  tho 
executive.  There  is  nothing  more  fallacious.  In  every  department 
of  the  Government  of  the  United  States,  as  well  as  in  the  government 
of  the  States,  every  officer,  whether  legislative,  executive,  or  judicial, 
is  compelled  to  exercise  judgment  in  certain  cases.  Take  for  instance 
the  Executive  of  the  United  States.  When  the  disposition  of  land 
has  to  bo  made  between  two  persons,  rival  claimants,  is  it  referred  to 
the  courts  to  settle  that  matter  ?  Not  at  all.  The  Land  Office  adjudi 
cates  these  matters.  Thoy  settle  the  case  whore  two  rival  claimants, 
two  settlers  holding  adversely  to  each  other,  presented  themselves  bo- 
fore  the  Laud  Office.  Tho  Land  Department  decides  the  case  pre 
liminary  to  a  final  adjudication  according  to  law  in  the  courts.  It  is 
a  preliminary  decision  that  must  be  made.  So  there  must  be  a  pre 
liminary  decision  made  in  regard  to  many  other  matters  that  it  is 
needless  for  mo  to  call  to  your  attention.  So  it  is  in  tho  State  govern 
ments.  The  executive  is  called  upon  to  exercise  certain  duties  and 
rights.  He  must  decide.  For  instance,  an  office-holder  has  ceased  to 
bo  a  resident  of  the  State  ;  or  ho  has  died.  The  executive  must  take 
cognizance  of  the  fact  of  the  death  of  an  incumbent  without  having  a 
court  decide  that  fact.  He  takes  cognizance  of  an  abandonment  where 
a  person  leaves  the  State,  and  makes  an  appointment  to  fill  the  va 
cancy.  Here  let  me  refer  to  decisions  in  support  of  this  position  which 
I  take 

Mr.  Commissioner  GARFIELD.    Are  these  cases  cited  in  your  brief? 

Mr.  KELLY.  Yes,  sir.  I  will  only  read  the  syllabus  of  the  case  in 
1  Arkansas  Reports,  page  21 : 

The  Supremo  Court  has  the  power  to  issue  writs  of  mandamus.  The  party  ap 
plying  frtr  this  writ  must  show  that  ho  has  a  specific  legal  right,  and  no  other  ade 
quate  specific  legal  remedy. 

A  collector  or  holder  of  'public  moneys  who  was  in  default  for  moneys  collected 
at  tho  time  of  the  adoption  of  the  Constitution,  at  the  time  of  his  election  to  an 
other  or  the  same  office,  and  at  tho  tiuio  of  his  application  for  his  commission,  ia 
not  entitled  to  his  commission. 

I  will  now  read  a  part  of  tho  opinion  of  the  court : 

Ho  is,  then,  clearly  within  the  meaning  of  tho  Constitution,  and  consequently  in 
eligible  to  any  office  of  profit  or  trust.  So  far  as  the  rights  and  interest  of  tho 
present  applicant  are  coucerned,  tho  Executive  has  done  nothing  that  tho  law  for 
bids;  and  whether  his  subsequent  acts  in  relation  to  the  samo  matter  are  incon 
sistent  with  his  constitutional  obligations  to  tho  country,  or  in  violation  of  privato 
rights,  this  court  will  not  take  upon  themselves  to  determine ;  for  that  question  is 
not  properly  before  them.  Tho  Executive,  in  common  with  every  other 'officer,  is 
bound  by  oath  to  support  tho  Constitution,  and  whenever  an  effort  is  made  to  evade 
or  violate  it,  it  is  not  only  his  privilege  but  his  duty  to  interpose  and  prevent  it. 

So  in  14  Indiana  Reports,  Gulick  vs.  New.     This  was  a  case  of  man- 


ELECTORAL   COMMISSION. 


125 


damus  to  compel  the  governor  to  issue  a  commission.  The  court 
say: 

The  governor  may  determine  even  against  the  decision  of  a  board  of  canvassers 
whether  an  applicant  is  entitled  to  receive  a  commission  ornpt,  where  the  objection 
to  his  right  to  receive  it  rests  upon  the  ground  that  the  constitutional  prohibition  is 
interposed. 

If  the  governor  should  ascertain  that  ho  lias  commissioned  a  person  who  is  ineli 
gible  to  the  office,  he  may  issue  another  commission  to  the  person  legally  entitled 
thereto. 

So  in  39  Missouri  Reports,  a  mandamus  was  asked  against  the 
governor  to  compel  him  to  give  a  certificate  to  a  person  who  was  in 
eligible.  The  court  took  this  position  : 

The  governor  is  bouud  to  see  that  the  laws  are  faithfully  executed,  and  he  has 
taken  aii  oath  to  support  the  constitution.  In  the  correct  and  legitimate  perform 
ance  of  his  duty,  he  must  inevitably  have  a  discretion  in  regard  to  granting  commis 
sions  ;  for,  should  a  person  be  elected  or  appointed  who  was  constitutionally  ineli 
gible  to  hold  any  office  of  profit  or  trust,  would  the  executive  be  bound  to  commis 
sion  him  wheu  his  inoligibility  was  clearly  and  positively  proven  ?  If  he  is  denied 
the  exercise  of  any  discfetion'in  such  case,  he  is  made  the  violator  of  the  consti 
tution,  not  its  guardian.  Of  what  avail,  then,  is  his  oath  of  office  ?  Or,  if  he  has 
positive  and  satisfactory  evidence  that  no.election  has  been  held  in  a  county,  shall 
he  be  required  to  violate  the  law  and  issue  a  commission  to  a  person  not  elected  be 
cause  a  clerk  has  certified  to  the  election  ?  In  granting  a  commission,  the  governor 
may  go  behind  the  certificate  to  determine  whether  an  applicant  is  entitled  to  re 
ceive  a  commission  or  not,  where  the  objection  to  the  right  of  the  applicant  to  re 
ceive  it  rests  upon  the  ground  that  a  constitutional  prohibition  is  interposed — (Gu 
lick  vs.  Now,  14  Indiana  93.)  The  issuing  of  a  commission  is  an  act  by  the  execu 
tive  in  his  political  capacity. 

Not  his  judicial — 

The  issuing  of  a  commission  is  an  act  by  the  executive  in  his  political  capacity, 
and  is  one  of  the  means  employed  to  enable  him  to  execute  the  laws  and  carry  on 
the  appropriate  functions  or  the  State ;  and  for  the  manner  in  which  ho  executes 
this  duty  he  is  in  no  wise  amenable  to  the  judiciary.  The  court  can  no  more  inter 
fere  with,  executive  discretion  than  the  legislature  or  executive  can  with  judicial 
discretion.  The  granting  of  a  commission  by  the  executive  is  not  a  mere  minis 
terial  duty,  but  an  official  act  imposed  by  the  constitution,  and  is  an  investiture  of 
authority'in  the  person  receiving  it.  Wo  are  of  the  opinion  therefore  that  manda 
mus  will  not  lie  against  the  governor  in  a  case  like  this. 

I  will  now  turn  to  1  Arkansas,  page  5U5 : 

In  all  of  these  cases  he  certainly  possesses  a  political  discretion,  for  the  use  of 
which  ho  is  alone  answerable  to  his  country.  Why,  then,  is  his  discretion  taken 
away  or  destroyed  when  his  duty  concerns  the  issuing  of  a  commission  ?  It  certainly 
is  not.  His  duty  is  as  clearly  political  in  that  case  as  in  any  of  the  other  enumera 
tions,  and  if  the' court  have  jurisdiction  in  that  instance  to  prescribe  the  rule  of  his 
conduct,  by  a  parity  of  reasoning,  they  certainly  possess  it  in  regard  to  all  the 
other  cases.  This  would  make  the  judges  the  interpreters  not  only  of  the  will  of 
the  executive  but  of  his  conscience  and  reason,  and  his  oath  of  office,  upon  such  a 
supposition,  would  then  be  both  a  mockery  and  a  delusion. 

Again  the  executive  is  bound  to  see  that  the  laws  are  faithfully  executed,  and 
he  has  taken  an  oath  of  office  to  support  the  constitution.  How  can  he  perform 
this  duty  if  he  has  no  discretion  le  t  him  in  regard  to  granting  commissions?  For 
should  the  Legislature  appoint  a  person  constitutionally  ineligible  to  hold  any  office 
of  profit  or  trust,  would  the  executive  bo  bound  to  commission  him  ?  and  that,  too, 
when  his  ineligibility  was  clearlyand  positively  proven  ?  In  such  a  case,  the  exer 
cise  of  his  discretion  must  be  admitted,  or  you  make  him  not  the  guardian  but  the 
violator  of  the  constitution.  What,  then,  becomes  of  his  oath  of  office  ? 

Not  only  that,  but  the  State  of  Oregon  itself  has  decided  this  mat 
ter.  I  will  call  the  attention  of  the  Commission  now  to  not  a  reported 
case,  but  to  a  matter  familiar  to  my  colleague  and  to  myself.  In  the 
electionof  187:<JEx-Governor  Gibbs  was  elected  district  attorney  for  the 
State,  prosecuting  attorney,  as  we  call  it  there.  Shortly  after  enter 
ing  upon  the  discharge  of  the  duties,  in  March,  he  received  from  the 
President  of  the  United  States  an  appointment  to  the  office  of  United 
States  district  attorney,  and  he  was  holding  both  offices  at  the  same 
time.  The  governor  knowing  that  fact,  knowing  too  that  the  con 
stitution  of  the  State  of  Oregon  prohibited  any  person  who  was  hold 
ing  an  office  under  the  Federal  Government  to  hold  a  State  office, 
this  very  Governor  Grover  appointed  C.  B.  Bellinger  prosecuting  at 
torney  for  the  State.  Ex-Governor  Gibbs  refused  to  recognize  that 
appointment ;  he  claimed  the  right  to  prosecute  the  criminals  in  the 
State  courts  and  in  the  Federal  courts.  Mr.  Bellinger  presented 
his  certificate  of  appointment  from  the  governor  to  Judge  Upton, 
chief  justice  then  of  the  State,  who  refused  to  recognize  him  because 
he  said  the  governor  had  no  right  to  ascertain  that  matter  ;  it  was  a 
question  for  the  judiciary  to  ascertain.  On  the  othe/  hand,  Mr. 
Bellinger,  believing  himself  right,  brought  a  writ  of  quo  warranto  to 
ascertain  that  fact,  whether  he  was  not  entitled  to  hold  the  office. 
He  brought  it  in  the  court  where  Judge  Upton  presided,  who  was 
chief  justice  of  the  State.  He  decided  adversely  to  him  on  the  same 
ground,  that  it  was  a  matter  of  judicial  inquiry  and  the  governor  had 
no  right  to  act.  An  appeal  was  taken  to  the  supreme  court,  and  by 
a  unanimous  court  it  was  decided  that  the  governor  had  that  right. 
The  case  is  not  yet  reported,  for  reasons  which  are  given  by  the 
present  chief  justice  of  Oregon  in  this  letter  to  the  governor : 

SUPHEME  COURT  ROOM, 
Salem,  Oregon,  December  20,  1876. 

SIR  :  Tour  communication  of  the  18th  instant  was  duly  received,  and,  in  reply 
thereto,  I  beg  leave  to  submit  the  following  : 

The  case  of  the  State  of  Oregon  exrel.  C.  B.  Bellinger,  appellant,  vs.  A.  C.  Gibbs, 
respondent,  was  heard  and  determined  at  the  January  term,  1873,  of  the  supreme 
court.  The  action  was  instituted  in  the  circuit  court  of  the  State  of  Oregon,  for  the 
county  of  Multnomah,  and  was  determined  at  the  March  term,  1872,  ot  said  court. 
The  complaint  alleged  in  effect  that  the  respondent  had  been  elected  to  the  office 
of  prosecuting  attorney  in  the  fourth  judicial  district  in  June,  1870,  for  the  term  of 
two  years ;  that  ho  entered  upon,  held,  and  exercised  the  office  ;  that  thereafter, 
and  while  so  holding,  he  was  appointed  to  the  office  of  United  States  district  attor 
ney  for  the  district  of  Oregon,  and  that  he  qualified  and  entered  upon  said  office 
on  March  2,  1872.  Allegations  showing  that  both  offices  were  lucrative  were  duly 
made,  and  it  was  further  alleged  that  on  March  6,  1872,  the  governor  of  Oregon 
duly  appointed  the  relator  to  the  office  of  prosecuting  attorney  for  the  said  fourth 


judicial  district,  and  that  said  relator  duly  qualified  on  March  8,  1872,  and  there 
upon  made  demand  upon  the  respondent  for  the  office,  which  demand  was  refused. 

Respondent  demurred  to  the  complaint  iu  the  court  below  upon  the  ground, 
among  others,  that  the  complaint  did  not  state  facts  sufficient  to  constitute  a  cause 
of  action. 

The  court  below  (Upton,  J.)  sustained  the  demurrer  and  entered  a  judgment 
against  the  relator  for  costs,  &.O. 

An  appeal  was  thereupon  taken  to  the  supreme  court  at  the  term  mentioned. 
Upon  the  argument  in  the  supreme  court  the  respondent,  in  support  of  his  de 
murrer,  contended  "that  the  governor  could  not  determine  for  himself  that  a  va 
cancy  existed  in  the  oflioeof  prosecuting  attorney  in  the  fourth  judicial  district  so 
as  to  authorize  the  appointment  of  the  relator,  for  the  reason  that  the  determina 
tion  of  that  fact  involved  the  exercise  of  judicial  functions  by  the  executive." 

This  was  the  principal  legal  question  in  the  case,  and  the  court  unanimously  de 
clared  that  the  governor  was  invested  with  authority,  in  cases  of  the  kind,  to  look 
into  the  facts  and  pass  upon  the  same  without  awaiting  the  action  of  the  courts. 

The  justices  of  the  supreme  court  were,  at  the  time,  Hon.  W.  W.  Upton,  chief 
justice;  Hon.  A.  J.  Thayer,  P.  P. Prim,  B.  F.  Bonhatn,  and  L.  L.  McArthur,  asso 
ciate  justices.  As  the  case  was  from  the  fourth  district,  Upton,  chief  justice, 
did  not  participate  in  the  hearing  and  decision  in  the  supreme  court.  The  writing 
of  the  opinion  was  assigned  to  Hon.  A.  J.  Thayer,  who  died  shortly  after  the  ad 
journment  of  the  term,  leaving  the  duty  unperformed.  Ex-Chief  Justice  Bouhani 
and  Justice  Me  Arthur  authorize  me  to  say  that  their  recollection  of  the  case  and 
the  point  decided  comports  with  my  own. 

I  have  the  honor  to  be  your  excellency's  obedient  servant, 

P.  P.  PRIM, 
Chief  Justice  of  Oregon. 

His  Excellency  L.  F.  GROVER, 

Governor  of  Oregon. 

There  is  the  very  point  decided  that  the  governor  has  a  right  to 
inquire  into  these  facts;  has  a  right  to  inquire  into  iueligibility  and  to 
issue  a  commission  when  there  is  any  infraction  of  the  constitution. 
In  the  very  words  of  the  constitution  of  the  State  he  is  to  see  that 
the  laws  are  faithfully  executed,  and  ho  is  to  take  an  oath  prescribed 
there  that  he  will  support  the  Constitution  of  the  United  States  and 
of  the  State.  Shall  it  be  held  that  the  governor  of  the  State  of  Ore 
gon  is  all-powerless  when  the  Constitution  of  the  United  States  is  to 
be  invaded  and  he  is  to  certify  that  a  man  has  been  elected  who  can 
not  be  elected  without  a  violation  of  that  Constitution  ?  Is  he  to  sit 
quietly  by  when  the  fact  is  presented  to  him,  as  it  was  by  affidavits 
at  the'  time  of  the  canvass  of  these  votes,  that  this  man  was  a  post 
master,  that  he  was  holding  an  office  of  profit  and  trust  under  the 
United  States.  And  I  again  ask,  in  the  language  of  the  courts  of  Mis 
souri  and  other  States,  is  he,  when  he  has  sworn  to  support  the  Con 
stitution  of  the  United  States  and  of  the  State  of  Oregon,  to  see  both 
trampled  under  foot  by  giving  a  certificate  to  a  man  who  is  ineli 
gible  ?  No,  it  is  not  so.  They  say,  Why  not  go  to  the  courts  I  The 
executive  has  the  right,  as  I  have  sho\vn  you,  to  decide  questions  of 
this  kind. 

It  is  impossible  for  me  to  elaborate  on  these  points  in  the  limited 
time  allowed  me;  but  I  call  attention  to  this  law  of  Oregon : 

The  votes  for  electors  shall  be  given,  received,  returned,  and  canvassed  as  the 
same  are  given,  returned,  and  canvassed  for  members  of  Congress. 

Another  duty,  in  addition  to  that,  is  imposed  upon  the  secretary  of 
state: 

The  secretary  of  state  shall  prepare  two  lists  of  the  names  of  the  electors 
elected,  and  affix  the  seal  of  the  State  to  the  same.  Such  lists  shall  be  signed  by 
the  governor  and  secretary,  and  by  the  latter  delivered  to  the  college  of  electors 
at  the  hour  of  their  meeting. 

This  is  the  evidence  of  their  appointment ;  this  is  their  right  to 
act,  from  what  has  appeared  from  the  reading  of  the  certificates. 
There  is  no  canvass  mentioned ;  there  ia  simply  a  list  of  the  votes 
given.  I  contend  that  the  governor  of  Oregon  and  the  secretary  of 
state  are  the  persons  to  canvass  these  votes.  There  is  no  evidence 
that  there  was  any  canvass  by  any  other  person.  They  must  decide 
upon  that  question ;  it  is  for  them  and  them  only,  and  they  have 
decided,  and  they  have  given  their  certificates  that  these  three  gentle 
men  are  eligible,  including  Mr.  Cronin.  It  matters  not  how  they 
came  to  that  conclusion ;  the  presumption  of  law  will  always  be  that 
it  was  upon  sufficient  evidence.  They  had  evidence  of  the  iueligi 
bility  of  one  of  the  candidates,  and  they  decided  upon  that  point. 
They  decided  that  that  was  sufficient  to  exclude  him,  and  therefore 
a  certificate  was  given  in  the  language  that  was  read  here,  that  the 
highest  eligible  candidates  were  Cartwright,  Odell,  and  Cronin. 

Mr.  Senator  MITCHELL.    Mr.  President 

Mr.  Senator  KELLY.  I  cannot  yield  any  part  of  my  time,  it  is  so 
short. 

Mr.  Senator  MITCHELL.  I  simply  want  to  say,  if  my  colleague 
will  permit  me 

Mr.  Senator  KELLY.  You  can  answer  me  in  your  own  time, 
say  it  is  clear  that  these  two  officers  had  the  right  to  decide  and  did 
decide  that  matter.  They  are  the  only  medium  of  communication 
between  the  State  and  the  Federal  Government.  What  authority  had 
Cartwright,  Odell,  and  Watts  by  going  to  the  secretary  of  state  and 
getting  a  list  of  the  votes  of  the  people  ?  What  right  have  they  to 
say  that  they  are  electors  simply  by  getting  that  ?  Any  person  can 
go  and  get  that  certificate  by  paying  the  fees.  Suppose  three  or  four 
persons  who  did  not  care  anything  about  their  obligations  as  good 
citizens  of  the  United  States  had  gone  and  got  a  certificate  of  the 
same  kind,  as  they  could  get  it  from  the  secretary  of  state  by  paying 
for  it,  and  signed  the  names  of  Watts,  Odell,  and  Cartwright,  and 
given  their  votes  for  Tilden,  how  would  you  know  the  difference? 
You  cannot  tell  by  it ;  you  cannot  tell  whether  their  signatures  are 
genuine  or  not,  excepting  from  the  fact  that  they  have  the  certificate 
of  the  governor,  which  attests  them  and  which  is  required  by  the  law 


126 


ELECTORAL  COMMISSION. 


of  the  United  States.  I  contend  that  the  United  States  have  the  right 
to  prescribe  how  those  votes  shall  be  certified.  The  Legislatures  of  the 
States  have  the  right  to  regulate  the  manner  of  election,  the  exclusive 
right.  That  I  admit ;  but  when  the  election  was  completed,  when 
the  electors  were  chosen,  and  the  votes  were  to  be  certified  from  the 
State  to  the  President  of  the  Senate,  it  must  be  done  under  United 
States  laws.  They  regulate  that  in  the  State  itself,  and  the  State  laws 
of  Oregon  demand  that  this  certificate  shall  be  signed  by  the  governor 
and  attested  by  the  secretary  of  state. 

Mr.  Commissioner  THURMAN.  Mr.  Kelly,  I  should  like  to  ask  one 
question.  Does  the  law  of  Oregon  require  the  secretary  of  state  to 
give  any  decision  at  all  or  does  it  require  the  governor  to  give  the 
evidence  of  the  decision  ? 

Mr.  Senator  KELLY.     I  will  read  the  law  : 

The  votes  for  electors  shall  be  given,  received,  returned,  and  canvassed  as  the 
same  are  given,  returned,  and  canvassed  for  members  of  Congress. 

That  is,  so  far  as  the  mere  counting  and  tabulation  go.  It  is  given 
to  the  secretary,  the  governor  being  present.  Then  in  addition  : 

The  secretary  of  state  shall  prepare  two  lists  of  the  names  of  the  electors  elected — 
So  that  they  have  a  right  to  judge  of  the  qualifications — 
The  secretary  of  state  shall  prepare  two  lists  of  the  names  of  the  electors  elected, 
and  aflix  the  seal  of  the  State  to  the  same.    Such  lists  shall  be  signed  by  the  gov 
ernor  and  secretary,  and  by  the  latter  delivered  to  the  college  of  electors  at  the 
hour  of  their  meet  ing  on  such  first  Wednesday  in  December. 

Mr.  Commissioner  THURMAN.  Now  I  want  to  ask  a  question  of 
fact ;  did  the  secretary  of  state  make  out  that  list  including  the  name 
of  Watts  ? 

Mr.  Senator  KELLY.  No,  sir;  he  did  not  include  the  name  of 
Watts.  Upon  the  facts  and  upon  the  law — the  interposition  of  a  pro 
test  by  a  number  of  gentlemen  to  the  counting  of  the  vote  of  Watts, 
an  affidavit  being  made  that  the  identical  man  was  a  postmaster — the 
governor  undertook  to  decide  that  matter,  as  he  had  a  right  to  decide 
it  under  the  decisions  I  have  cited,  and  under  the  laws  of  Oregon. 
He  did  so  in  pursuance  of  his  right  as  chief  executive  of  the  State 
and  by  authority  of  law,  and  the  secretary  of  state  attested  his  act ; 
and  that  decision  is  in  evidence  here,  and  is  the  only  evidence  of  who 
has  a  right  to  cast  the  electoral  votes,  and  that  was  given  to  Mr.  Cro- 
nin  as  well  as  the  other  two. 

Mr.  Senator  MITCHELL.  Will  my  colleague  allow  me  to  interrupt 
him  a  moment  ? 

Mr.  Senator  KELLY.  I  will  not  allow  you  a  moment ;  you  have  an 
hour. 

The  PRESIDENT.    The  speaker  has  the  floor  unless  he  yields. 

Mr.  Senator  MITCHELL.  Certainly ;  I  understand  that,  Mr.  Presi 
dent. 

Mr.  Senator  KELLY.     Mr.  President 

Mr.  Commissioner  MILLER.  Perhaps  you  will  answer  me  a  ques 
tion. 

Mr.  Senator  KELLY.     Certainly. 

Mr.  Commissioner  MILLER.  "  The  votes  for  electors  shall  bo  given, 
received,  returned,  and  canvassed  as  the  same  are  given,  returned, 
and  canvassed  for  members  of  Congress."  How  do  we  find  out  how 
that  is  done  ? 

Mr.  Commissioner  EDMUNDS.  Section  37  of  the  general  laws  seems 
to  provide  for  it. 

Mr.  Senator  MITCHELL.    Found  at  page  139  of  your  compilation. 

Mr.  Commissioner  ABBOTT.  I  wish  to  ask  a  single  question  of 
fact,  whether  this  certificate  which  we  have  here  is  not  in  exact  ac 
cordance  with  that  provision  of  the  law  of  Oregon  which  you  have 
read;  that  is,  that  a  certificate  should  be  given  signed  by  the  secre 
tary  of  state  and  the  governor  ? 

Mr.  Senator  KELLY.  It  is  in  exact  accordance  with  the  require 
ments  of  the  law  of  Oregon  and  the  law  of  the  United  States. 

Mr.  Commissioner  ABBOTT.  Have  you  any  other  board  in  Oregon 
to  certify  to  the  election  of  the  electors  but  that  board? 

Mr.  Senator  KELLY.    None. 

Mr.  Commissioner  ABBOTT.    That  is  what  I  wanted  to  get  at. 

Mr.  Senator  KELLY.  I  find  I  have  but  five  minutes  left,  and  I  will 
give  that  to  my  associate  objector. 

Mr.  Representative  JENKS.  Mr.  President  and  gentlemen  of  the 
Commission,  we  propose  to  plead  the  cause  of  truth  and  justice,  the 
cause  of  thirty-fire  millions  out  of  forty  of  the  free  people  of  the 
United  States;  a  cause  whose  justice  is  attested  by  a  clear  majority 
of  250,000  of  the  popular  vote;  a  cause  whose  justice  is  corroborated 
by  a  clear  majority  of  25  in  the  electoral  college  of  the  United  States. 
With  these  facts  behind  us,  and  with  the  questions  of  law  and  fact 
involved  in  this  case,  we  shall  ask  at  your  hands  that  it  shall  be  de 
cided  according  to  them.  Wo  ask  no  technical  advantage,  but  recog 
nizing  that  the  law  of  the  land  is  truth  in  law  as  facts  may  be  true 
in  fact,  we  ask  that  you  shall  give  them  their  true  weight ;  and  re 
garding  the  Constitution  of  the  United  States  as  the  primordial  law, 
the  all-controlling  fact  in  this  case,  we  ask,  all  having  sworn  to  its 
support,  that  that  support,  without  abatement,  shall  be  fully  accorded 
to  it. 

The  first  question  necessarily  is  a  question  of  evidence.  What  evi 
dence  is  there  before  this  tribunal  or  what  evidence  can  or  will  be  re 
ceived  by  it,  arc  the  first  questions;  and  in  answer  to  them,  if  wo  are 
to  judge  by  the  precedents  established  by  this  tribunal  in  the  past, 
we  would  infer  that  there  is  to  be  no  evidence  except  those  papers 


which  come  with  the  several  returns  from  the  President  of  the  Senate. 
That  would  narrow  the  inquiry  to  a  very  small  space,  and  that  space 
first  we  propose  to  discuss ;  not  that  we  say  differently  from  what 
we  said  before  that  wo  would  ask  you  finally  to  a  frugal  feast ;  we 
would  invite  you,  as  before,  to  go  down  to  tile  bottom  facts,  for  if  our 
case  be  not  founded  upon  the  merits  of  truth  and  justice  I  would  not 
have  it. 

But  inquiring  in  the  light  in  which  this  tribunal  must  first  inquire, 
we  will  consider  it  on  the  narrow  ground  of  the  papers  submitted  by 
the  President  of  the  Senate.  With  reference  to  these  the  inquiry 
would  arise,  which  of  these,  if  any,  is  legal  evidence?  If  either  one 
be  legal  evidence  and  the  other  be  not,  if  you  are  guided  by  the  law 
of  the  land,  you  must  find  in  accordance  with  the  legal  evidence. 
The  evidence,  as  offered  with  the  returns  by  the  President  of  the 
Senate,  is,  first,  the  certificate  of  the  governor  of  Oregon,  in  the  fol 
lowing  words,  also  attested  by  the  secretary  of  state,  under  the 
great  seal  thereof : 

STATE  OF  OUEGON.  EXECUTIVE  OFFICE, 
Salem,  December  C,  l«7fi. 


the  Uni  red  States.   Being  the  highest  number  of  votes  cast  at  said  election  for  per 
sons  eligible,  under  the  Constitution  of  the  United  States,  to  be  appointed  electors 


of  President  and  Vice-President  of  the  United  States,  they  are  hereby  declared 
duly  elected  electors  as  aforesaid  for  the  State  of  Oregon. 

And  there  is  the  usual  clause  of  attestation,  with  the  seal  of  the 
State,  the  signature  of  the  governor,  and  the  countersigning  of  the 
secretary  of  state.  That  is  the  evidence  on  the  part  of  certificate  No. 
2.  The  evidence  on  the  part  of  certificate  No.  1  consists  of  an  affida 
vit  of  three  persons  whom  we  know  not,  because  there  is  no  evidence 
to  identify  them  as  having  been  any  of  the  persons  voted  for  at  that 
election,  swearing  that  they  had  gone  to  the  governor  and  asked  for 
a  certificate.  Is  it  not  his  duty  to  judge  to  whom  he  will  deliver 
certificates  ?  May  there  not  be  two  John  Smiths  in  this  world  ?  And 
what  right  have  these  men  to  come  in  and  by  their  oath  attempt  to 
supply  that  which  is  fixed  by  statute  as  the  only  legal  evidence  of  a 
given  transaction  ? 

There,  then,  is  the  oath  of  three  men,  whom  you  know  not  and  who 
have  no  identification  before  this  tribunal  of  any  character  recog 
nized  by  the  law,  that  they  have  gone  and  asked  for  a  certificate,  and 
that  the  governor  would  not  give  it  to  them.  That  is  the  first  paper; 
and  if  that  be  legal  evidence  before  this  tribunal,  what  would  not 
be?  The  affidavit  of  any  other  three  men  in  the  United  States  would 
be  received  with  the  same  weight  as  theirs :  and  if  this  tribunal  acts 
on  the  same  theory  it  has  heretofore  promulgated,  that  is  a  simple 
nullity. 

Then  the  next  evidence  of  authentication  which  they  attempt  to 
originate  is  a  statement  of  votes  in  that  State,  with  the  certificate 
of  the  secretary  of  state  that  it  is  a  true  statement  of  the  votes  as 
cast,  with  the  electoral  vote  of  the  persons  therein  claiming  to  bo 
electors  thereto  attached. 

Now,  we  stand  on  the  legal  proposition  that  where  there  is  a  stat 
utory  mode  of  authentication,  no  other  mode  of  authentication  can 
be  received  as  legal  evidence  in  a  court  of  justice.  Then  the  inquiry 
would  be,  what  is  the  statutory  authentication  required  by  the  law? 
In  support  of  this  proposition  we  will  give  your  honors  an  authority. 
We  will  cite  you  to  the  case  of  Bleecker  Vs.  Bond,  3  Washington's 
Circuit  Court  Reports,  page  531.  There  the  offer  made  before  Judge 
Washington  was : 

The  certificate  of  Joseph  jSTonrse,  the  Register  of  the  Treasury  Department, 
under  his  hand,  that  certain  receipts,  of  which  copies  are  annexea,  are  on  file  in 
his  office,  with  a  certificate  of  the  Secretary  of  the  Treasury,  under  the  seal  of  the 
Department  that  Joseph  bourse  is  Register,  was  offered  in  evidence,  and  ob 
jected  to. 

The  court  overruled  the  evidence  upon  the  ground  that  it  is  7iot  sufficient; 
that  the  officer  who  gives  this  certificate  has  the  custody  of  the  papers,  unless  it 
also  appeared  that  he  is  authorized  by  law  to  certify  such  papers ;  which  this  of 
ficer  is  not.  A  sworn  copy  ought  to  have  boon  produced. 

Then  as  a  scqultnr  from  that  we  would  cite  your  honors  to  the  case 
of  Pendleton  vs.  The  United  States,  2  Brockenborough's  Reports,  page 
75,  in  which  the  principle  announced  is  that  "  the  certificate  must  be 
in  the  form  prescribed  by  law." 

Then  if  the  officer  has  not  power  to  certify  or  if  the  certificate  be 
not  in  the  form  prescribed  by  law,  it  is  not  evidence  before  any  trib 
unal.  Now  is  there  a  form  prescribed  by  law  that  this  certificate 
shall  have  ;  and  if  there  is,  will  you  in  the  face  of  clearly  established 
law  rule  that  this  is  any  evidence  for  any  purpose  whatever,  as 
against  a  certificate  that  fully,  in  all  particulars,  conforms  to  the  law 
of  the  land  ?  What  is  the  law  of  the  land  iu  reference  to  that  ? 
First,  with  reference  to  the  law  of  Oregon,  what  does  it  require  ?  It 
says : 

The  secretary  of  state  shall  prepare  two  lists  of  the  names  of  the  electors  elected, 
and  affix  the  seal  of  the  State  to  the  same.  Such  lists  shall  be  signed  by  the  gov 
ernor  and  secretary,  and  by  the  latter  delivered  to  the  college  of  electors  at  the 
hour  of  their  meeting  on  such  first  Wednesday  of  December. 

Then,  by  the  law  of  Oregon,  it  is  necessary  that  the  certificate 
shall  have,  first,  the  attestation  of  the  secretary  of  state;  second,  it 
shall  have  the  signature  of  the  governor.  Our  certificate  has  this  ; 
the  other  has  not.  If  the  law  of  Oregon,  then,  is  to  be  your  rule  as 
to  evidence,  no  other  can  be  received  in  the  face  of  that  statute. 


ELECTORAL  COMMISSION. 


127 


But  is  there  any  othei'  law  beside  that  of  Oregon  that  could  be  used 
as  a  guide  in  this  tribunal  ?  We  -will  give  you  the  law  of  the  United 
States,  in  which  it  is  provided  that. — 

It  shall  be  the  duty  of  the  executive  of  each  State  to  cause  three  lists  of  the 
names  of  the  electors  of  such  State  to  be  made  and  certified,  and  to  bo  delivered  to 
the  electors  on  or  before  the  day  on  which  they  are  required  by  the  preceding  sec 
tion  to  meet. — Section  136,  Revised  Statutes  United  States. 

Here,  then,  is  the  statute  of  Oregon  and  hero  is  the  statute  of  the 
United  States,  each  of  which  prescribes  the  mode  of  testifying  to  a 
given  fact.  There  is  a  conformity  to  that,  in  all  particulars,  in  the 
one  and  there  is  not  even  the  semblance  of  a  conformauce  in  the 
other ;  and  which  shall  be  received  ? 

We  say,  then,  that  this  evidence,  in  the  absence  of  fraud,  inten 
tional  fraud,  should  be  received  and  held  conclusive.  If  the  allega 
tion  were,  and  it  were  proven,  that  the  governor  fraudulently  re 
fused  to  do  a  duty,  it  would  be  your  duty,  I  should  say,  to  inquire 
concerning  that,  and  never  give  vitality  to  infamy;  but,  in  the  ab 
sence  of  the  allegation  of  fraud,  the  certiticate  of  the  governor  and 
the  secretary  of  state  must  be  taken  as  complete  and  conclusive  evi 
dence  of  the  fact  therein  contained  ;  and  that  fact  is  that  this  man 
Crouin,  with  two  others,  was  elected. 

Then  as  to  the  question  of  evidence ;  one  side  offers  yon  the  evi 
dence  required  by  law;  the  other  gives  you  no  evidence  authorized 
by  law.  This  certificate,  and  its  delivery  by  the  governor  and  the 
secretary  of  state,  are  not  altogether  purposeless  either.  The  object 
of  that  and  the  requirement  of  the  statute  of  the  United  States, 
which  says  that  it  shall  accompany  their  votes,  is  to  identify  the  per 
sons  who  do  the  voting  with  the  persons  who  were  voted  for.  If  a 
man  came  without  a  certificate  how  do  you  know,  in  a  large  State  like 
New  York,  that  there  might  not  be  a  dozen  men  of  identically  the 
same  name  as  his  who  recorded  the  vote  ?  Hence,  the  statute  of  the 
United  States  has  wisely  said,  in  order  that  we  may  judge  as  to 
whether  the  person  who  has  cast  the  vote  is  the  identical  person  voted 
for  and  commissioned,  that  the  presence  of  the  certificate  is  required 
with  the  vote,  and  it  must  attend  it.  So  this  is  not  to  be  neglected, 
either. 

But  the  question  of  evidence  being  the  narrow  plank  of  this  plat 
form,  let  us  go  beyond  it.  The  next  question  is,  what  would  be  the 
effect  of  that  evidence  even  in  the  case  of  error  or  mistake  f  If  that 
error  were  willful  and  fraudulent  we  assert  now,  as  we  have  ever 
asserted,  that  fraud  vitiates  all  things  into  which  it  enters  as  a  con 
stituent  element ;  but  if  it  were  merely  a  mistake  or  error  in  the 
integrity  of  the  person  whose  duty  it  was  to  give  it,  it  must  be  re 
ceived  as  a  verity ;  and  to  sustain  this  we  first  assert  the  proposition 
that  granting  the  commission  is  a  political  act,  and  as  such  cannot, 
except  for  willful  fraud,  be  inquired  into  by  any  other  tribunal  than 
that  whose  duty  it  is  to  exercise  the  political  function.  In  support 
of  that  we  would  call  your  honors'  attention  to  Gulick  vs.  New,  14 
Indiana  Reports,  page  96 : 

As  to  the  second  branch  of  the  objection.  It  is  made  the  duty  of  the  governor 
to  issue  commissions  in  certain  cases  and  to  certain  officers.  The  sheriff  is  one  of 
the  officers  that  thus  receives  a  commission  upon  his  election ;  and  wo  have  no 
doubt  that  if  the  governor  should  ascertain  that  he  had,  through  mistake  or  other 
wise,  improperly  issued  a  commission  to  one  person  to  fill  that  office,  when  in  truth 
it  ought  to  have  been  issued  to  another,  ho  may  correct  the  error  by  issuing  one  to 
the  person  legally  entitled  thereto. 

Again,  I  cite  High  on  Extraordinary  Legal  Remedies,  page  98, 
speaking  of  political  duties : 

The  doctrine  as  thus  stated  has  been  most  frequently  applied  in.cases  where  it 
has  been  sought  by  mandamus  to  compel  the  governor  of  a  state  to  issue  commis 
sions  to  persons  claiming  to  be  rightfully  elected  to  public  offices.  And  the  courts 
have  held  the  duty  of  issuing  such  commissions  to  bo  of  a  political  nature,  requir 
ing  the  exercise  of  the  political  powers  of  tho  governor,  and  none  the  less  an  execu 
tive  act  because  it  is  positively  required  of  the  governor  by  law.  The  mere  fact 
that  no  discretion  is  left  with  the  executive  as  to  tho  manner  of  its  pei-formance, 
does  not  render  it  a  ministerial  duty  in  the  sense  that  mandamus  will  lie  to  compel 
its  performance,  and  whatever  constitutional  powers  are  conferred  upon  the  exec 
utive  are  regarded  as  political  powers,  and  all  duties  enjoined  upon  him  as  political 
duties. 

Then  if  the  governor  issues  this,  even  to  the  wrong  person,  it  is  a 
political  duty  imposed  upon  him  by  the  law  of  the  laud  and  by  the 
constitution  of  the  State,  and  when  he  is  acting  under  the  obligation 
of  his  oath  to  support  the  Constitution  of  the  United  States  his  act, 
if  exercised  lona  fide,  could  not  be  inquired  into  elsewhere,  and  in  the 
absence  of  the  allegation  of  fraud  that  certificate,  no  matter  how 
groundless  it  might  be,  is  entirely  conclusive  on  this  tribunal  and 
every  other. 

But  the  evidence  is  attested,  as  I  might  have  stated  before,  by  the 
very  canvassing  board  itself.  The  secretary  of  state  and  the  gover 
nor,  the  canvassing  board,  declare  that  as  the  result  of  the  election ; 
and  the  governor  in  pursuance  thereof  having  exercised  a  political 
function,  you  have  no  legal  right  to  go  back  of  that  in  the  absence 
of  the  allegation  of  fraud  and  inquire  into  its  issues. 

But  having  considered  it  in  the  light  of  an  evidential  question,  we 
do  not  propose  to  limit  ourselves  to  that  narrow  sphere,  for  a  Presi 
dent  of  the  United  States  ought  not  to  be  elected  upon  a  mere  tech 
nicality.  The  ruler  of  a  great  people  needs  some  title  broader  than 
a  hair-splitting  distinction  on  which  to  rest  his  title,  and  we  ask  to 
go  to  the  merits  and  the  truth  of  the  case.  Assuming  now  for  the 
sake  of  the  argument  that  Mr.  Watts  received  a  greater  number  of 
votes  than  Mr.  Cronin,  and  that  he  was  a  postmaster  of  the  United 
States  at  the  time  those  votes  were  cast,  was  he  elected  ?  We  pro 


pose  to  demonstrate  that  he  was  not  elected,  even  if  ho  received  a 
majority  of  the  votes  cast;  and  in  support  of  that,  of  course,  the  fun 
damental  proposition  would  be  the  Constitution  of  the  United  States, 
and  I  will  refer  to  it  in  order  to  call  your  honors'  attention  to  a  dis 
tinction  which  exists  between  cases  which  must  be  distinguished  or 
cause  utter  confusion  in  the  law  as  administered  and  announced  in 
the  different  States.  On  this  subject  the  Constitution  of  the  United 
States  says : 

No  person  holding  an  office  of  trust  or  profit  under  the  United  States  shall  bo 
appointed  an  elector. 

It  does  not  say  no  person  holding  an  office  of  trust  or  profit  shall 
hold  the  privilege  of  an  elector;  nor  does  it  say  ho  shall  not  bo  an 
elector;  but  it  says  he  shall  not  be  "appointed  an  elector."  The 
time  of  appointment  is  the  all-important  time  with  reference  to  this. 
The  very  object  in  putting  this  provision  in  the  Constitution  doubt 
less  was  that  the  Federal  Government  should  never  exercise  its  influ 
ence  in  the  election  of  electors  to  perpetuate  itself  in  power.  The 
influence  in  the  election  was  what  was  wished  to  be  excluded,  and 
hence  the  appointment  was  the  vital  moment  intended  to  be  taken 
into  consideration.  You  will  notice  the  language  is,  that  they  shall 
not  be  "  appointed."  It  is  not  that  they  shall  not  hold,  or,  that  they 
shall  not  exercise  the  functions ;  or,  that  they  shall  be  incompatible, 
as  many  of  the  statutes  of  the  States  are ;  but,  he  shall  not  be  ap 
pointed  at  all. 

While  noticing  that  distinction,  allow  me  to  call  tho  attention  of 
the  Commission  to  what  will  explain  consistently  all  the  decisions 
throughout  the  United  States.  We  find  in  one  of  the  Pennsylvania 
reports  an  opinion  delivered  by  his  honor  Mr.  Justice  Strong,  in 
Commonwealth  vs.  Cluley,  56  Pennsylvania  State  Reports,  in  which 
the  expression  is  made  that  lie  knows  no  judicial  authority  to  sup 
port  the  proposition  that  a  man  who  does  not  receive  a  majority  of 
votes  can  be  elected,  and  he  cites  congressional  authority  against  it, 
ruling  on  what  has  been  done  in  Congress  and  in  the  Senate  of  the 
United  States  in  reference  to  determining  the  law  as  to  contested  ap 
pointments.  In  reference  to  Representatives  of  the  United  States, 
the  language  is : 

No  person  shall  be  a  Representative  who  shall  not  have  attained  to  the  age  off 
twenty-five  years  and  been  seven  years  a  citizen  of  the  United  States. 

It  does  not  say  no  person  shall  be  elected  to  Congress  or  nobody 
shall  be  appointed  a  Congressman,  but  it  says  he  shall  not  bo  a  Con-* 
gressman.  The  same  language  holds  with  reference  to  the  Senate : 

No  person  shall  bo  a  Senator  who  shall  not  have  attained  to  the  age  of  thirty 
years. 

Showing  that  the  time  of  holding  there  is  what  is  referred  to  in 
these  several  sections.  This  is  also  corroborated  by  tho  next  clause : 

No  person  shall  be  a  Representative  who  shall  not  have  attained  to  the  age  of 
twenty -five  years  and  been  seven  years  a  citizen  of  tho  United  States,  and  who 
shall  not,  when  elected,  be  an  inhabitant  of  that  State  in  which  he  shall  be  chosen. 

There  are  three  qualifications  :  he  shall  not  be  a  Representative  un 
less  he  is  twenty-five  years  of  age ;  he  shall  not  be  a  Representative 
unless  he  shall  have  been  seven  years  a  citizen  of  the  United  States, 
and  then  there  is  another  qualification  of  a  different  class,  the  dis 
tinction  being  made  in  tho  same  section,  "  and  who  shall  not,  when 
elected" — going  back  from  the  time  of  holding  to  another  perio 
"  be  an  inhabitant  of  that  State  in  which  he  shall  be  chosen."  He 
must  at  the  time  of  the  election  bo  an  inhabitant  of  the  State  in  which 
he  is  chosen  ;  but  at  the  time  of  being  a  Representative  he  must  be 
seven  years  a  citizen  of  the  United  States  and  he  must  be  twenty- 
five  years  of  age.  The  same  distinction  is  made  between  the  time  of 
election  and  the  time  of  holding  with  reference  to  Senators,  because — 

And  who  shall  not,  when  elected,  be  an  inhabitant  of  that  State  for  which  he 
shall  be  chosen. 

Making  the  very  distinction  that  is  necessary  to  render  consistent 
with  each  other  ail  the  well-considered  authorities  on  that  subject. 
The  time  of  the  appointment  is  what  is  here  spoken  of  by  the  Consti 
tution  of  the  United  States  as  to  electors.  When  it  says  no  person 
shall  be  appointed  an  elector  it  is  an  utter  denial  of  power  in  the  voter 
to  vote  for  him.  The  citizen  is  just  as  much  bound  by  the  Constitu 
tion  as  is  the  officer.  He  has  taken  the  oath  either  directly  himself 
or  inherited  it,  and  when  he  swears  "  I  will  not  appoint  one  who  is 
holding  an  office  of  trust  or  profit  under  the  United  States,"  and  he 
violates  that  oath,  are  you  entitled  to  give  validity  to  that  violation 
or  are  you  to  consider  it  as  a  nullity  ?  It  is  to  be  treated  as  though 
it  was  not  done. 

It  is  true  that,  on  the  theory  announced  by  learned  counsel  (Mr. 
Evarts)  in  a  former  case,  that  may  be  gotten  over.  It  is  not  utterly 
conclusive,  provided  you  resort  to  the  grounds  taken  by  the  learned 
counsel  in  a  former  case,  who  said  this : 

They  are  elected ;  they  are  acting ;  they  are  certifying ;  for  there  is  nothing  in 
that  idea  of  the  subject 'at  all  that  a  man  made  ineligible  cannot  be  elected.  Y.OU 
might  as  well  say  that  the  forbidden  fruit  could  not  be  eaten  because  It  was  for 
bidden. 

That  is  true  ;  yon  can  violate  and  defy  law.  The  forbidden  fruit 
could  be  eaten  notwithstanding  it  was  forbidden,  but  it  could  be 
eaten  in  defiance  of  the  laws  of  God,  and  that  defiance  brought  upon 
the  world  "  death  and  all  our  woe." 

And  will  you  adopt  the  same  theory  that  a  man  can  do  that  which 
is  forbidden  and  sustain  argument  upon  it ;  that  when  it  is  forbidden 
he  may  do  it  and  you  will  approve  and  give  validity  and  vitality  to 


128 


ELECTORAL  COMMISSION. 


that  act  ?  Can  you,  on  the  line  announced  by  tbo  learned  counsel  in 
ono  of  the  former  cases,  say  that  when  a  man  swears  he  will  not  do  a 
thing  he  may  do  it ;  when  he  swears  that  he  will  not  do  it  he  can  do 
it.  It  can  be  done  only  on  the  principle  that  the  Constitution  has 
become  obsolete  literature,  only  for  the  study  of  the  antiquary.  So 
we  say  there  can  bo  no  power  to  appoint  an  ineligible  person.  Bnt 
it  is  not  mere  reasoning  on  which  this  rests.  Wo  will  furnish  author 
ity  to  corroborate  it.  The  first  ease  that  we  call  your  attention  to  is 
the  case  of  Gulick  vs.  New,  (14  Indiana  Keports,  page  93,)  in  which 
the  following  language  occurs: 

True,  by  the  constitution  and  laws  of  this  State,  the  voice  of  a  majority  controls 
our  elections,  but  that  voice  must  be  constitutionally  and  legally  expressed.  Even 
a  majority  should  not  nullify  a  provision  of  the  constitution,  or  bo  permitted  at  will 
to  disregard  the  law.  In  this  is  the  strength  and  beauty  of  our  institutions.  *  * 
Suppose  that  eight  years  ago,  at  the  first  election  under  our  new  constitution,  when 
nearly  all  the  offices  in  the  State  were  to  be  filled,  a  majority  of  the  voters  in  the 
Statej  and  in  the  several  districts  and  counties,  had  voted  for  persons  wholly  ineli 
gible  to  till  the  several  offices,  would  those  offices  have  thereby  remained  vacant  ? 
Could  that  majority,  by  pursuing  in  that  course,  have  continued  the  anarchy  that 
might  have  resulted  from  such  action?  Or  rather  is  it  not  the  true  theory  that 
those  who  act  in  accordance  with  the  constitution  and  the  law  should  control  even 
a  majority  who  may  fail  so  to  act  ? 

Wo  also  find  that  principle  corroborated  in  41  Indiana  Keports,  577, 
Price  vs.  Baker,  in  which  the  following  language  is  held  : 

It  is  a  principle  of  law  well  settled  in  this  State,  that  where  a  majority  of  the 
ballots  at  an  election  are  given  to  a  candidate  who  is  not  eligible  to  the  office,  the 
ballots  so  cast  are  not  to  bo  counted  for  any  purpose.  They  cannot  be  counted  to 
elect  the  ineligible  candidate  or  to  defeat  the  election  of  an  opposing  candidate,  by 
showing  that  he  did  not  receive  a  majority  of  the  votes  cast  at  such  election.  They 
are  regarded  as  illegal,  and  as  having  no  effect  upon  the  election  for  any  purpose. 
As  a  consequence,  it  follows  that  the  candidate  who  is  eligible  having  the  highest 
number  of  legal  votes,  though  that  number  may  be  less  than  the  number  of  votes 
cast  for  the  ineligible  candidate,  and  less  than  a  majority  of  all  the  votes  cast  at 
such  election,  is  entitled  to  the  office. 

So  that  the  legal  votes  are  to  control  those  that  are  illegal. 

Mr.  Commissioner  EDMUNDS.  Does  that  case  put  the  question 
independently  of  the  knowledge  of  the  voter  ? 

Mr.  Representative  JENKS.  It  puts  it  independently  of  the  knowl 
edge  of  the  voter.  Wo  shall  consider  that  further  on. 

Mr.  Commissioner  EDMUNDS.  I  simply  wished  to  know  how  the 
court  held. 

Mr.  Senator  MITCHELL.  The  court  there  held  that  there  was  con 
structive  knowledge. 

Mr.  Representative  JENKS.  I  have  road  what  the  court  said.  The 
next  case  we  cite  is  on  the  same  subject,  the  case  of  Hutchinsou  vs. 
Tilden  and  Boardley,  4  Harris  and  McHenry,  page  280,  in  which  the 
following  occurs ;  this  is  a  Maryland  case : 

All  votes  given  for  a  candidate  not  having  such  qualification  are  to  be  thrown 
away  and  rejected  as  having  no  force  or  operation  in  law. 

The  same  as  if  not  cast  at  all.  We  may  also  say  that  Chief- Justice 
Thompson,  in  the  case  of  Commonwealth  vs.  Cluley,  asserts  the  same 
principle  in  Pennsylvania,  the  court  resting  its  decision  upon  the  de 
cisions  of  the  Houses  of  Congress.  I  will  read  from  that  case  in  56 
Pennsylvania  State  Reports,  page  273.  The  decision  of  the  court  was 
that  an  illegal  person  voted  for  was  not  elected  and  his  competitor 
was  not.  That  was  the  conclusion  of  the  court ;  but  that  was  founded 
on  the  false  hypothesis  that  the  decisions  of  legislative  assemblies 
settled  the  question,  by  acting  on  the  language  of  the  Constitution, 
which  spoke  of  a  person  not  being  a  Senator  or  a  Congressman,  iinder 
which  those  who  were  disqualified  at  the  time  of  the  election,  but 
became  qualified  before  the  time  of  their  admission,  were  admitted. 

Mr.  Commissioner  STRONG.     I  do  not  so  recollect  the  case. 

Mr.  Representative  JENKS.  I  will  read  to  your  honor,  and  then 
perhaps  it  will  call  back  your  honor's  recollection. 

Mr.  Commissioner  STRONG.  My  recollection  is  that  the  political 
cases  were  referred  to  as  a  mere  illustration,  not  as  the  basis  of  the 
decision. 

Mr.  Representative  JENKS.  Your  honor  there  said  that  in  this 
country  there  are  no  judicial  cases  on  record. 

Mr.  Commissioner  STRONG.     In  this  countiy. 

Mr.  Representative  JENKS.  After  announcing  that  the  person  who 
received  the  minority  vote  is  not  elected,  the  court,  through  his 
honor  Judge  STRONG,  says  in  that  case : 

We  are  not  informed  that  there  has  been  any  decision  strictly  judicial  upon  the 
subject ;  but  in  our  legislative  bodies  the  question  has  been  determined. 

We  think  we  have  shown  the  true  difference  between  those  two. 
In  the  present  case  it  would  be  baseless  founded  on  that  kind  of  de 
cision.  Then  his  honor  goes  further,  and  says: 

Besides,  a  man  who  votes  for  a  person  with  knowledge  that  the  person  is  in 
competent  to  hold  the  office,  and  that  his  vote  cannot  therefore  bo  effective,  that  it 
will  be  thrown  away,  ms>,y  very  properly  be  considered  as  intending  to  vote  a  blank, 
or  throw  away  his  vote. 

But  the  present  relator — 

Applying  it  to  the  facts  of  the  case- 
but  the  present  relator  suggests  no  such  case.    Ho  does  not  even  aver  that  if  the 
votes  given  for  Cluley  were  thrown  out.  ho  received  a  majority,  though,  doubtless, 
such  was  the  truth.    Ho  has,  therefore,  exhibited  no  such  interest  as  entitles  him 
to  be  heard. 

Now  I  refer  to  7  Maine  Reports,  pages  497  and  501,  which  to  me 
seem  to  be  very  pertinent  in  this  case.  That  arose  under  the  au 
thority  of  the  governor  and  council  to  submit  certain  propositions 
to  the  supreme  court  for  their  opinion,  and  their  opinion  rendered 
thereon 


The  PRESIDENT.    Was  it  in  regard  to  the  town  of  Livingtou  ? 

Mr.  Representative  JENKS.  It  does  not  name  any  town,  but  hero 
is  the  question  asked  by  the  governor  and  council : 

Can  ballots  having  the  names  of  persons  on  them  who  do  not  possess  the  con 
stitutional  qualifications  of  a  Representative  be  counted  as  vot«js  under  the  fifth 
section  of  fourth  article,  part  first,  of  the  constitution  of  Maine,  so  as  to  prevent 
a  majority  of  the  votes  given  for  eligible  persons  constituting  a  choice  ? 

That  is  a  question  covering  this  whole  case.    The  answer  is: 

To  the  fourth  question  proposed,  without  a  particular  statement  of-  reasons, 
we  merely  answer  in  the  negative. 

This  occurred  in  1831.  In  1833  an  act  was  passed  in  Maine  con 
forming  to  the  theory  or  doctrine  laid  down  by  these  judges  in  this 
opinion,  so  that  it  has  been  authoritatively  announced  in  many  States. 
The  English  cases  assume  this  doctrine,  that  if  the  person  who  votes 
knows  that  the  person  for  whom  ho  votes  is  disqualified,  in  that 
event  his  vote  is  thrown  away.  If  that  were  the  doctrine  in  this  coun 
try,  where  the  people  are  principals  and  the  officers  their  agents,  still 
the  case  would  be  covered  by  the  fact.  Suppose  we  now  assume  that 
the  English  doctrine  is  the  true  doctrine,  that  the  voter  must  know 
that  a  disqualified  person  is  disqualified.  What  is  the  theory  of  our 
Government  ?  The  people  are  the  principals,  the  officers  are  their 
agents.  The  principal  knows  who  his  agents  are.  Hence  when  ho 
votes  for  a  public  officer  he  votes  knowing  that  he  is  voting  for 
his  own  agent.  He  cannot  have  an  agent,  is  not  to  be  presumed  to 
have  any  agent  that  he  does  not  know  of.  The  theory  would  not 
hold  good  in  the  British  government,  where  the  source  of  power  is  the 
Crown  and  the  people  are  not  constructively  notified  of  who  the  agent 
is;  but  hero  when  we  appoint  an  agent  ourselves  either  directly  or 
indirectly,  can  any  man  say  in  law  "I  did  not  know  who  he  was?" 
So,  in  consequence  of  the  construction  of  our  Government,  in  opposi 
tion  to  that  of  the  British  government,  constructive  notice  exists  to 
every  individual  of  every  officer  in  the  United  States,  and  the  doc 
trine  of  constructive  notice  that  the  principal  knows  who  his  agents 
are  would  bring  this  within  the  doctrine  of  the  judicial  decisions  that 
no  one  disputes,  either  English  or  American,  that  where  the  provision 
is  that  a  man  shall  not  be  voted  for,  a  vote  for  him,  so  far  as  the 
power  of  being  elected  is  concerned,  does  not  have  that  power.  So 
Watts  was  not  elected  even  if  he  received  a  majority  of  the  votes. 

Mr.  Commissioner  THURMAN.  Your  proposition  is  that  where  the 
man  cannot  be  voted  for,  then  knowledge  on  the  part  of  the  voter  is 
of  no  consequence. 

Mr.  Representative  JENKS.  It  is  of  no  consequence  at  all.  The 
English  authorities  do  not  pretend  to  allege  that  it  was  necessary  that 
the  voter  should  know  that  he  was  voting  for  a  disqualified  candidate. 
The  only  question  was  whether  the  result  was  to  elect  the  next  high 
est  where  this  knowledge  did  not  exist.  In  any  event  the  man  is  not 
elected  who  received  the  highest  number  of  votes,  but  the  question 
was  whether  the  other  was  elected  ;  but  I  say  under  the  theory  of  our 
Government  that  the  people  are  the  principals  and  the  officers  are  the 
agents  ;  there  is  notice  per  se  to  every  principal  of  every  agent  he  has 
got  constructively,  and  we  know  who  our  agents  are. 

We  first  will  assume,  then,  that  Watts  was  not  elected.  If  he  was 
not  elected,  the  next  question  would  be,  was  Cronin  elected  ?  We 
have  already  cited  authorities  on  that  point  sufficient  to  call  your 
attention  to  the  principle,  and  as  time  is  short,  I  will  pass  to  the  next 
point.  The  question  whether  Cronin  was  elected  or  not  will  be  elab 
orated  by  counsel. 

Then  the  next  question  that  would  arise  would  be,  if  Watts  was 
not  elected  and  Cronin  was  not  elected,  what  would  be  the  effect? 
Would  there  be  a  vacancy  ?  We  assume  there  would  not  bo  a  va 
cancy.  If  Watts  was  not  elected,  and  if  Cronin  was  not  elected  by 
the  smaller  number  of  votes,  then  there  was  no  vacancy. 

Before  entering  upon  the  discussion  of  this  on  principle  and  author 
ity,  it  may  be  well  to  respond  to  the  argument  made  by  the  very 
learned  counsel  on  the  part  of  the  opposite  party,  in  a  former  case, 
that  there  must  be  a  vacancy  where  there  is  not  an  incumbent.  The 
proposition  was  stated  something  like  this :  If  there  is  not  some  per 
son  in  possession,  there  must  be  no  person  in  possession ;  and  if  there 
is  no  person  in  possession,  there  must  bo  a  vacancy.  That  was  about 
the  form  of  the  syllogism.  Let  us  inquire  concerning  that.  We  start 
with  the  proposition,  which  seemed  to  be  conceded  by  the  same 
learned  counsel  the  other  day,  that  the  electors  for  President  of  the 
United  States  are  qualified  persons,  not  officers,  but  citizens  of  a 
given  qualification,  voters  for  President  of  the  United  States,  not 
having  a  public  employment  or  private  employment,  (whatever  is  the 
definition  of  office,)  but  the  privilegeof  performing  a  given  act.  Now, 
if  a  man  does  not  exercise  a  privilege,  does  it  necessarily  become 
vacant  at  all  ?  Take  the  common  case  of  the  elective  franchise. 
Suppose  there  be  a  township  with  a  hundred  voters,  and  one  of  them 
— a  privileged  voter — does  not  attend  the  election.  Does  that  make 
a  vacancy  or  does  it  not  ?  Is  there  a  ATacancy  in  that  election  ? 
Where  there  is  a  privilege  that  a  man  may  use  or  may  not,  and  he 
does  not  exercise  it,  that  failure  does  not  constitute  any  vacancy  what 
soever.  A  neighbor  may  grant  me  the  privilege  of  walking  in  his 
garden.  I  may  exercise  that  privilege  or  I  may  not,  depending  upon 
my  own  volition ;  but  whether  I  do  or  do  not,  there  is  no  vacancy 
either  in  the  privilege  or  the  right  to  it.  It  does  not  exist  at  all 
except  at  the  option  of  the  person  to  whom  that  privilege  belongs. 
Hence  it  is  not  a  seqmtur  at  all  that  if  a  man,  having  a  privilege,  does 
uot  exercise  it,  there  is  necessarily  a  vacancy  in  anything. 


ELECTORAL  COMMISSION. 


Then  starting  with  that  proposition  is  there  a  vacancy?  On  this 
Biibjfict  I  call  your  honors'  attention,  first,  to  a  very  recent  case  de 
cided  during  this  presidential  election,  that  of  George  II.  Corliss,  of 
Rhode  Island,  which  Hind  in  the  American  Law  Register  of  January, 
1877,  on  page  19.  The  inquiry  was  made  by  the  governor  of  Rhode 
Island,  as  in  the  case  iu  Maiuo  of  the  supremo  court  of  the  State. 
The  second  proposition  is  : 

Wo  thiiik  a  centennial  commissioner,  who  was  a  candidate  for  tho  office  of  elector 
and  received  a  plurality  of  the  votes,  does  not  by  declining  tho  ollice  create  such 
a  vacancy  as  is  provided  for  in  general  statutes. 

And  now  comes  the  quotation  from  the  statutes: 

If  any  electors,  chosen  as  aforesaid,  shall,  after  their  said  election,  decline  tho 
an  id  ofliec.  or  be  prevented  by  any  cause  from  serving  therein,  tho  other  electors, 
when  met  in  Bristol,  in  pursuance  of  this  chapter,  shall  fill  such  vacancies,  and 
shall  (ilea  certilicate  in  the  secretary's  oflice  of  tho  person  or  persons  by  them  ap 
pointed. 

When  they  decline  the  office  or  are  "prevented  by  any  cause,"  full 
and  comprehensive  words,  so  that  if  there  be  a  vacancy  it  can  be 
tilled.  Then  tho  court  proceed  : 

Before  any  person  can  decline  under  this  section  ho  must  first  bo  elected,  and  no 
person eaii be electedwhoisineligible.or,  in  other  words,  incapablcof  beiugclectcd. 
"  Resignation,  "  said  Lord  Cockburn,  C.  J.,  in  Tho  Queen  vs.  Blizzard,  Law  Keport 
2  Q.  B  ,  55,  "implies  that  the  person  icsigning  has  been  elected  unto  the  office  lie 
resigns.  A  man  cannot  resign  that  which  he  is  not  entitled  to  and  which  he  has  no 
right  to  occupy. 

Hence  there  is  no  vacancy  where  there  is  nothing  to  resign.  It  is 
a  privilege  in  the  first  instance;  and  this  man's  declining  would  not 
authorize  the  filling  of  tho  place  as  a  vacancy.  I  call  your  attention 
to  another  case  in  order  to  show  more  especially  the  comprehensive 
ness  of  the  language  of  the  statute  under  which  they  acted:  that  is 
the  Lanman  case  in  Connecticut,  which  is  found  in  Clarke  &  Hall's 
Contested  Elections,  page  872.  Lanman  had  been  a  Senator  up  to 
the  3d  of  March,  1825.  There  was  no  meeting  of  the  Legislature  of 
Connecticut  between  the  3d  of  March,  1825,  and  the  fall  of  tho  year. 
There  was  an  interim  there  when  the  State  had  no  Senator.  A  meet 
ing  of  the  senate  was  called.  The  governor  appointed  Lanman  to 
fill  the  vacancy  from  the  time  of  his  last  incumbency  up  to  the  meet 
ing  of  the  next  Legislature,  and  for  warrant  therefor  this  was  the 
statute  of  Connecticut: 

Whenever  any  vacancy  shall  happen  in  the  representation  of  this  State  in  the 
Senate  of  tho  United  States  by  the  expiration  of  the  term  of  service  of  a  Senator, 
or  hy  resignation  or  otherwise,  the  General  Assembly,  if  then  in  session,  shall,  by 
a  concurrent  vote  of  the  senate  and  house  of  representatives,  proceed  to  fill  said 
vacancy  by  a  new  election  ;  aud  in  case  such  vacancy  shall  happen  in  the  recess  of 
the  General  Assembly,  the  governor  shall  appoint  some  person  to  fill  tho  same 
until  the  next  meeting  of  the  General  Assembly. 

The  appointing  power  of  the  governor  was  co-extensive  as  to  va 
cancies  with  that  of  the  Legislature,  and  tho  language  in  reference  to 
the  Legislature  was  that  "  if  the  term  of  service  of  the  Senator  ex 
pired,  or  by  resignation  or  otherwise"  a  vacancy  happened.  The  de 
cision  then  was  that  there  was  no  vacancy  as  prescribed  by  that 
statute.  There  must  be  an  incumbent,  in  other  words,  to  constitute 
a  vacancy ;  there  must  be  some  person  in  the  enjoyment  to  constitute 
such  a  vacancy  as  came  within  the  terms  of  the  broadest  statute. 

I  cite  next  the  case  of  Broom  vs.  Hauley,  9  Pennsylvania  State 
Reports,  page  513,  which  decided  substantially — 

That  oven  death,  after  a  lawful  election  and  before  qualification,  does  not  create 
an  incumbent  of  tho  oflice  ;  nor  does  it  create  a  vacancy  which  can  be  filled  by  ap- 
poiutmcut,  where  the  law  authorizes  vacancies  to  bo  so  filled. 

In  corroboration  of  that  we  also  cite  the  cases  of  People  rs.  Tilton, 
37  Cal.,  614 ;  People  vs.  Parker,  37  Cal.,  039  ;  Stratton  rs.  Oulton,  28 
Cal.,  51;  People  vs.  Stratton,  28  Cal.,  382;  Battle  vs.  Mclver,  68  N. 
C.  R.,469;  Dodd  ex  parts,  6  Eug.,  Ark.,  152  ;  State  vs.  Jenkins,  43 
Mo.,  261. 

Then  let  us  look  to  the  statutes  of  Oregon  to  see  if  there  be  no  pro 
vision  to  fill  any  given  vacancy,  even  if  there  were  a  vacancy  to  be 
filled,  which  wo  deny,  because  an  incumbent  signifies  one  in  posses 
sion  of  an  office  ;  and  where  there  has  been  no  incumbent  it  has  been 
decided  all  the  time  that  there  is  no  vacancy,  and  if  there  is  no  va 
cancy  there  can  be  nothing  to  fill.  But  the  statutes  of  Oregon  have 
defined  what  shall  constitute  a  vacancy,  and  confined  it  to  an  oflice; 
and  this,  as  conceded  by  the  learned  counsel,  is  not  an  oflice.  That 
definition  is  as  follows  : 

SEC.  48.  Every  office  shall  become  vacant  on  tho  occurring  of  either  of  the  follow 
ing  events  before  the  expiration  of  tho  term  of  such  oflice : 

1.  The  death  of  tho  incumbent ; 

There  must  be  an  incumbent,  that  is,  one  in  possession. 

2.  His  resignation ; 

That  is,  the  resignation  of  an  incumbent. 

3.  His  removal ; 

The  removal  of  an  incumbent. 

4.  His  ceasing  to  be  an  inhabitant  of  tho  district,  county,  town,  or  village ; 
His  referring  to  the  incumbent's  ceasing,  &c. 

5.  His  conviction  of  an  infamous  crime ; 

Tho  incumbent's  conviction  of  an  infamous  crime. 

6.  His  refusal  or  neglect  to  take  his  oath  of  oflflco ; 

Tho  incumbent's  refusal. 

7.  Tho  decision  of  a  competent  tribunal,  declaring  void  his  election  or  appoint 
ment. 


The  only  instance  in  which  a  vacancy  can  occur  under  that  statute 
is  when  the  decision  of  a  competent  tribunal  declares  his  election  or 
appointment  void,  and  that  was  not  done  in  this  case. 

Mr.  Commissioner  EDMUNDS.  How  would  that  apply  to  this  action 
of  the  governor  in  declaring  the  election  void  ? 

Mr.  Representative  JENKS.  The  act  of  the  governor  was  an  act 
in  pursuance  of  a  duty  conferred  by  the  constitution  upon  that  gov 
ernor  on  which  he  was  to  exercise  that  discretion  with  which  God 
and  nature  had  endowed  him  ;  and  if  honestly  exercised,  that  was  con 
clusive,  because  it  was  a  political  duty.  Ho  having  sworn  that  ho 
would  not  commission  one  who  was  disqualified,  ho  could  not  com 
mission  one  who  was  disqualified,  and  he  had  a  right  to  decide  tho 
question  as  to  whether  there  wras  an  election  or  not. 

Mr.  Commissioner  EDMUNDS.  If  I  understand  you,  then,  had  this 
been  an  ordinary  State  office,  with  a  term  for  a  year,  for  instance,  and 
the  governor  had  done  exactly  the  same  thing,  it  would  not,  h:ivo 
been  competent  for  the  courts  to  have  reversed  the  judgment  aud  to 
have  d-ocided  the  other  way? 

Mr.  Representative  JENKS.  In  conformity  to  the  law  of  the  land 
it  would.  Without  that  conformity,  by  express  statutory  authority, 
it  would  not,  because  the  governor  is  limited  by  the  same  law  as  tho 
others  are  in  the  exercise  of  its  duties.  But  if,  in  the  first  instance, 
we  are  to  be  controlled  by  an  express  statutory  provision,  this  action 
of  his  would  bo  conclusive;  and  there  is  uo  statutory  provision  of 
that  kind,  as  I  understand. 

Mr.  Commissioner  MORTON.  I  should  like  to  ask  the  gentleman 
a  question.  I  ask  whether,  in  his  opinion,  it  is  competent  for  a  State, 
by  the  State  constitution,  in  any  way  to  regulate  the  appointment  of 
electors. 

Mr.  Representative  JENKS.  The  Constitution  of  the  United  States 
confers  that  power,  in  some  instances,  upon  the  Legislature  of  tho 
State. 

Mr.  Commissioner  MORTON.  You  spoke  about  the  governor  being 
empowered  by  the  Constitution  to  do  thus  and  so.  My  inquiry  is 
whether  it  is  competent  for  a  State,  by  its  constitution,  to  regulate 
in  any  way  the  appointment  of  electors. 

Mr.  Representative  LAWRENCE.  By  the  constitution  as  distin 
guished  from  the  Legislature  ? 

Mr.  Representative  JENKS.  By  the  Constitution  of  tho  United 
States,  which  becomes  a  part  of  and  incorporates  itself  into  that  of 
every  State,  the  two  constituting  one,  he  is  authorized  to  so  do.  Tho 
constitution  of  each  State  aud  the  United  States  Constitution  are 
equally  binding  upon  Legislature  and  governor.  At  least  this  posi 
tion  stands  always  the  same,  that  the  governor's  functions  iu  com 
missioning  are  political,  and  as  such,  when  not  in  contravention  of 
well-ascertained  law,  they  are  conclusive.  If  it  bo  a  discretion  which 
must  be  exercised  politically,  that  discretion,  unless  done  mala  Jidc, 
is  conclusive. 

Then  the  propositions  we  have  attempted  to  establish  arc  these : 

First.  That  with  reference  to  evidence,  the  only  evidence  before 
you  which  conforms  to  tho  law  of  tho  land  is  tho  evidence  as  required 
by  the  law  of  Oregon  and  tho  law  of  the  United  States,  being  that 
which  is  certified  to  by  the  governor  of  the  State  of  Oregon. 

Second,  that  the  act  of  that  governor,  if  discharged  in  good  faith, 
is  conclusive  upon  this  tribunal  in  this  inquiry. 

Third,  that  Watts  could  not  be  elected  even  if  he  had  a  majority 
of  the  votes. 

Fourth,  that  if  Cronin  was  the  next  highest,  and  those  votes  were 
cast  for  one  who  could  not  be  appointed,  tho  next  highest,  Cronin, 
was  elected. 

Fifth,  that  even  if  Cronin  was  not  elected  there  was  no  vacancy, 
and  being  no  vacancy,  there  could  be  no  filling  by  any  college  what 
ever. 

Then,  as  a  consequence,  how  does  the  case  stand  ?  Cronin  came 
up  and  voted ;  two  others  came  and  voted.  You  do  not  know  whether 
they  are  the  persons  voted  for  or  not,  because  they  do  not  come  iden 
tified  as  the  law  says  they  shall  come.  But,  assuming  that  they  Avero- 
the  same  persons  who  were  voted  for,  and  are  properly  identified, 
each  of  these  voters  being  one,  that  would  be  evidence  according  to 
the  law  of  the  land,  would  have  to  be  counted  as  the  true  vote.  Cro- 
uiu's  vote  must  bo  counted  as  cast,  the  other  two  as  they  are  cast. 
This  would  be  the  conclusion  I  would  come  to  from  these  several 
propositions.  We  believe  this  to  be  a  correct  exposition  of  the  law 
and  the  truth  of  the  case,  because  the  constitutional  language  of  this 
qualification  is  not  one  that  is  to  be  forgotten  or  repudiated.  It  is, 
perhaps,  too  common  now  to  regard  the  provisions  of  the  Constitu 
tion  as  directory,  to  be  obeyed  or  disobeyed  at  the  option  of  the  per 
son  who  may  have  tho  administering  thereof,  but  the  constitutional 
truth  remains  that  an  office-holder  should  not  be  appointed.  We  ask 
you  to  give  to  this  truth  its  proper  weight  in  this  decision,  and  giv 
ing  it  its  proper  weight,  the  result  would  be,  as  wo  maintain,  as 
stated  before. 

This  tribunal  is  such  a  one  as  tho  world  has  never  known  before. 
Questions  of  this  kind  have  heretofore  been  decided  on  the  field  of 
battle,  decided  amid  smoking  hamlets,  decided  amid  the  clash  of 
arms.  Successions  have  not  heretofore  been  settled  peaceably.  Stand 
ing,  then,  as  the  last  arbiter  instead  of  the  last  resort  to  arms,  I  would 
ask  that  you  do  your  duty  impartially  and  in  full  view  of  the  whole 
facts  and  truth  of  the  case- 
Then  further,  as  this  is  such  a  tribunal  as  was  never  constituted 


130 


ELECTORAL   COMMISSION. 


before,  and  tho  first  of  the  kind  known  on  earth,  it  can  cither  give 
character  or  discredit  to  its  kind.  If  this  tribunal  forgets  its  high 
obligal  ions  and  guides  itself  hy  aught  else  than  simple  truth  and  sim 
ple  justice,  it  will  again  throw  back  mankind  to  the  place  from  which 
they  started,  leaving  the  question  of  succession  to  be  decided  by  the 
-wilder  of  battle  as  lawsuits  often  were  in  barbarous  ages.  We  ask 


you  not  to  turn  back  this  hand  on  tho  dial  of  time.  Let  it  go  on. 
Let  pence  bo  tho  rule  and  not  war.  It  is  true  many  would  have  pre 
ferred  war.  Tho  corrupt,  tho  deformed  would  have  preferred  war, 
nst  as  when  the  mighty  deep  is  disturbed  from  its  slimy  abysses  the 
crude  monsters  come  to  the  surface  and  there  disport  themselves  ;  so 
in  the  ruin  of  a  country,  so  in  the  turmoils  of  internicine  war,  these 
crude  monsters  now  in  the  abyss  might  rise  to  tho  surface  and  once 
again  disport  themselves.  From  this  deliver  us.  Give  to  mankind 
confidence  in  their  fellow-men  that  they  can  bo  trusted  to  decide  im 
partially  according  to  tho  truth  and  verity  of  the  case. 

We  leave  this  in  your  hands,  asking  that  you  give  it  a  candid  con 
sideration,  deciding  upon  principles  of  right  and  truth,  bearing  in 
mind  that  in  the  case  of  Florida  a  certain  list  came  from  the  secre 
tary  of  state,  a  compilation  of  votes  canvassed  by  a  returning  board, 
came  from  tho  State,  and  this  was  overruled  by  the  governor's  certifi 
cate  ;  that  in  Louisiana  evidence  was  offered  you  to  show  what  was 
the  true  state  of  the  votes,  and  that  was  declined.  Now  wo  ask  that 
in  this  case  the  principles  of  Jaw  and  the  principles  of  truth  be  rec 
ognized  and  the  vote  be  cast  as  in  truth  and  justice  it  should. 

The  PRESIDENT.  We  will  now  hear  the  objectors  on  the  other 
side. 

Mr.  Senator  MITCHELL.  Mr.  President  and  gentlemen  of  tho  Com 
mission,  I  desire  the  words  I  shall  employ  in  this  important  cause  shall 
be  measured  and  the  principles  I  announce  and  upon  which  I  claim 
your  decision  shall  bo  well  considered.  The  limited  time  prescribed 
l>y  tho  rules  of  your  honorable  body  for  tho  presentation  of  cases  upon 
the  part  of  objectors  admonishes  me  that  I  must  advance  directly  and 
without  prefatory  remark  to  a  discussion  of  the  issues  involved'.  So 
momentous  are  these  in  tho  effect  of  their  decision,  though  not  in 
point  of  solution,  that  to  thoir  final  determination  by  this  high  tri 
bunal  tho  whole  people  of  this  nation,  and  may  I  not  say  of  all 
Christendom,  are  with  bated  breath  looking  forward  with  ever-in 
creasing  and  intense  anxiety.  Tho  hopes,  the  fears,  tho  aspirations 
of  two  great  political  parties,  each  struggling  for  the  control  of 
tho  administration  of  a  great  government,  have,  on  the  faith  of  the 
right,  tho  justice,  and  the  law  upon  which  each  bases  its  claim  to 
the  votes  of  certain  disputed  States,  by  common  consent,  by  solemn 
.legislative  enactment,  in  which  leading  members  of  both  political 
parties  have  voluntarily  and  earnestly  joined,  been  submitted  to  the 
arbitrament  of  this  dignified  and  honorable  Commission. 

.The  Constitution  of  the  United  States  declares  that  — 

The  President  of  the  Senate  shall,  in  tho  presence  of  tho  Senate  and  House  of 
Representatives,  open  all  the  certificates,  ana  tho  votes  shall  then  bo  counted. 

The  law  of  your  creation  provides  in  substance  and  effect  that  if 
moro  than  one  return,  or  paper  purporting  to  bo  a  return,  from  a 
State  shall  have  been  received  by  the  President  of  tho  Senate,  pur 
port  ing  to  ho  tho  certificate  of  electoral  votes  given  for  President  and 
Vice-president  in  such  State,  all  such  returns,  after  having  been 
opened  by  tho  President  of  tho  Senate  in  the  presence  of  tho  two 
Houses  and  read  hy  the  tellers,  shall  thereupon  bo  submitted  to  tho 
judgment  and  decision  of  your  honorable  Commission  as  to  which  is 
tho  tnie  and  lawful  electoral  vote  of  such  State. 

Tho  State  of  Oregon  sends  two  returns  ;  hence  your  jurisdiction 
under  tho  Constitution  and  the  law  to  determine  which  of  these  is 
tho  true  one  and  which  tho  false,  which  comes  from  the  electoral  col- 
lego  of  that  State,  which  of  the  six  persons  claiming  to  have  been 
appointed  electors  by  that  State  in  tho  manner  directed  by  the  Leg 
islature  thereof,  if  any,  were  so  appointed,  and  which  votes  cast  for 
President  and  Vice-President  by  tho  six  persons  claiming  to  have  been 
appointed  electors  should  of  right  be  counted.  A  perfect  understand 
ing  of  tho  facts  presented  by  tho  two  returns  is  important.  From 
these  taken  together  it  appears  Iliat,  at  the  recent  election  in  Oregon, 
the  three  republican  candidates,  W.  II.  Odell,  John  C.  Car!  wright,  and 
John  W.  Watts,  received  respectively  15,206,  15.214,  and  15,2()P>  votes. 

Tho  three  democratic  candidates,  E.  A.  Cronin,  Henry  Klippel,aud 
W.  13.  Laswell,  received  respectively  14,157,  14,136,  and  14,14'J  votes. 
That  John  W.  Watts,  who  received  the  lowest  republican  vote,  had 
a  majority  of  1,049  votes  over  E.  A.  Cronin,  who  received  the  highest 
democratic  vote.  That  on  the  4th  day  of  December,  1670,  that  being 
the  day  on  which  it  was  his  duty  under  tho  law  to  canvass  the  votes 
and  determine  who  had  received  the  highest  number,  tho  secretary 
of  state  did,  in  tho  presence  of  tho  governor,  canvass  the  votes,  and 
did  officially  declare  that  Odell,  Cartwright,  and  Watts  had  received 
Iho  highest  number  of  votes.  That  tho  governor,  notwithstanding 
this  official  declaration  of  tho  secretary  of  state,  issued  his  certificate 
not  to  Odell,  Cartwright,  and  Watts,  but  to  Odell,  Cartwright,  and 
Cronin.  That  these  three  persons,  so  certified  hy  the  governor,  did 
not,  in  the  organization  and  proceedings  of  tho  electoral  college,  act 
together;  but  that  Odell,  Cartwright,  and  Watts,  the  persons  whom 
the  State  had  appointed  at  the  election,  acted  together,  organized  as 
an  electoral  college,  and  east  three  votes  for  liutherford  1!.  Hayes,  of 
Ohio,  for  President,  and  three  votes  for  William  A.  Wheeler,  of  New 
York,  for  Vice-President.  That  Cronin,  acting  alone,  organi/fd  •»• 
attempted  to  organize  a  college  of  his  own  ;  declared  or  attempted  to 


declare  two  vacancies  ;  and  appointed  or  attempted  to  appoint,  to  fill 
such  alleged  vacancies,  J.  N.  T.  Miller  and  John  Parker,  neither  of 
whom  1iad  received  any  votes  from  tho  people.  That  these  tliren 
persons,  so  claiming  to  bo  an  electoral  college,  cast  2  votes  for 
Hayes  and  Wheeler  and  1  vote  forTildon  and  Hendricks.  That  tho 
return  of  Cronin,  Miller,  and  Parker  contains  the  certificate  of  tho 
governor  to  Crouin,  Odell,  and  Cartwright.  That  the  return  of  Odell, 
Cartwright,  and  Watts  has  no  certificate  of  the  governor  attached, 
but  has  the  certificate  of  tho  secretary  of  state  under  tho  great  seal 
thereof,  showing  that  these  three  persons  constituting  this  college 
received  the  highest  number  of  votes  at  the  election,  and  that  this 
was  so  officially  declared  by  tho  sole  canvassing  officer,  the  secretary 
of  state,  at  the  time  and  place  and  in  the  manner  designated  by  law. 
It  is  claimed  and  the  papers  show  that  Watts,  at  the  time  of  the 
election,  was  a  postmaster,  and  therefore  ineligilde,  as  it  is  claimed, 
to  be  appointed  an  elector.  The  evidence  establishes  the  facts  in 
reference  to  this  postmastership  to  be  these  :  Watts  at  the  time  of  the 
election  was  a  deputy  postmaster  at  the  town  of  La  Fayette,  Yam 
Hill  County.  His  compensation  was  about  $268  per  annum.  That, 
the  whole  number  of  votes  in  tho  county  of  Yam  Hill  was  1,484.  Of 
these,  810  were  cast  for  tho  republican  candidates  for  electors,  and 
()74  for  the  democratic  candidates ;  that  there  were  at  the  time  of  tho 
election  eleven  other  post-offices  in  that  county.  That  the  total  vote 
of  La  Fayette  precinct,  in  which  Watts  was  postmaster,  was  : 

For  ITayes  electors 10(5 

For  Tiluen  electors „ f'3 

Total  votes !.-!» 

That  this  precinct  includes  considerable  scope  of  territory  outside 
the  town  of  La  Fayette,  and  which  is  nearer  to  other  post-offices. 
That  not  more  than  one  hundred  voters  of  both  political  parties  re 
ceive  or  transmit  their  mail  through  the  La  Fayette  post-office.  It 
is  further  shown  that  the  fact  that  Watts  was  postmaster  was  not 
generally  or  publicly  known  throughout  tho  State  or  in  any  part  of 
the  State  prior  to  the  election  except  in  his  own  immediate  town. 
That  neither  the  democratic  or  republican  leaders,  nor  the  masses  of 
tho  voters  of  either  political  party  in  the  State,  or  any  considerable 
portion  of  them,  know  that;  he  was  postmaster  until  several  days  after 
the  election  ;  nor  was  the  fact  that  ho  was  postmaster  or  the  question 
of  his  ineligibility  publicly  discussed  during  the  campaign. 

It  is  insisted  that  these  facts  made  Watts  ineligible  to  appoint 
ment  as  an  elector;  that  the  governor  of  tho  State  for  this  reason 
had  the  jurisdiction,  and  rightfully  exercised  it,  to  refuse  to  issue  his 
certificate  to  Watts  and  to  issue  it  to  Cronin,  the  candidate  having 
the  next  highest  vote.  Had  Governor  Grover  tho  right  to  refuse 
Watts  a  certificate,  and  if  so  had  he  any  jurisdiction  to  issue  it  to 
Cronin,  and  what  effect  is  to  be  accorded  such  certificate  ?  I  contend 
with  perfect  confidence  in  the  integrity  of  our  position  that  tho  gov 
ernor  of  Oregon  had  no  jurisdiction  whatever  to  entertain  or  adjudi 
cate  upon  the  question  of  tho  alleged  ineligibity  of  Watts,  and  that 
all  his  proceedings  in  that  regard  were  ultra  vires,  void  ab  initio,  af 
fecting  no  interest,  attaching  to  no  subject-matter,  and  binding  no 
one.  If  Governor  Grover  possessed  any  such  power  ho  must  derive 
it  from  one  of  four  sources :  the  Constitution  of  tho  United  States,  I  ho 
laws  of  Congress,  the  constitution  of  Oregon,  or  the  statutes  of  that 
State.  So  far  as  the  Constitution  of  the  United  States  is  concerned 
it  confers  no  power  whatever  on  tho  governor  of  a  State  to  pass  upon 
the  eligibility  of  any  person  elected  to  office  under  either  national  or 
State  authority.  It  prescribes  qualifications  for  office  and  imposes 
disqualifications.  It  nowhere  vests  tho  appointment  to  any  office, 
Federal  or  State,  in  the  executive  of  a  State,  save  in  the  case  of  a 
vacancy  in  the  office  of  Senator  of  tho  United  States  when  the  Leg 
islature  is  not  in  session.  It  nowhere,  directly  or  by  implication,  con 
stitutes  him  a  tribunal  to  act  as  the  conservator  of  tho  constitution 
in  the  matter  of  the  eligibility  of  persons  elected  or  appointed  to  oilico. 
Were  the  appointment  of  electors  vested  by  the  Constitution  in  the  exec 
utive  of  a  State  instead  of  in  tho  State  itself,  then  there  might  attach  to 
him  by  reasonable  if  not  necessary  implication  tho  power  to  pass  upon 
tho  constitutional  qualifications  of  any  person  hy  him  appointed.  Or 
had  the  Legislature  of  the  State,  under  tho  clause  of  the  Constitution 
authorizing  tho  State  to  appoint  electors  in  such  manner  as  tho  Leg 
islature  thereof  may  direct,  provided  by  statute  that  such  electors 
should  be  appointed  not  hy  the  people  but  by  the  governor,  then  it 
might  with  some  propriety  and  claim  of  support  in  law  be  held  that 
he  could  pass  upon  the  question  of  the  constitutional  qualifications 
of  those  appointed.  The  Constitution  of  tho  United  States  in  one 
clause  says : 

No  Senator  or  Representative  or  person  holding  an  office  of  trust  or  profit  under 
the  United  States  shall  he  appointed  an  elector. 

And  in  another  clause  that — 

No  person  shall  be  a  Representative  who  shall  not  have  attained  to  the  ago  of 
twenty-five  years  and  been  seven  years  ,1  citizen  of  the  United  Slates,  and  who 
shall  not,  when  elected,  be  an  inhabitant  of  the  State  in  which  he  shall  bo  chosen. 

And  in  still  another  that — 

No  person  holding  any  oflico  under  tho  United  States  sluillbo  a  member  of  cither 
House  during  his  continuance  ill  otlico. 

Here,  then,  are  several  constitutional  disqualifications  in  reference 
to  members  of  Congress  and  presidential  electors.  If  it  is  the  duty  of 
I  lie  governor  to  pass  upon  the  question  of  ineligibility  of  an  elector 


ELECTORAL  COMMISSION. 


131 


before  issuing  his  certificate,  then  it  is  also  his  duty  to  pass  upon  the 
question  of  the  ineligibility  of  a  member  of  Congress  before  granting 
his  certificate,  as  kis~duty  in  reference  to  each  is  under  the  law  pre 
cisely  the  same,  namely,  that  he  shall  issue  his  certificate  to  the  per 
son  having  the  highest  number  of  votes  ;  and  if  he  can  pass  upon  the 
question  of  fact  as  to  whether  the  person  receiving  the  highest  num 
ber  of  votes  for  elector  was  at  the  time  of  the  election  a.  postmaster,  and 
also  upon  the  question  of  law  as  to  whether  such  fact  when  found 
disqualifies  him  from  being  appointed  as  an  elector,  and  in  such  event 
to  withhold  from  him  his  certificates,  then  he  also  has  the  power  to 
adjudicate  upon  the  question  in  the  case  of  a  person  elected  to  Con 
gress  as  to  whether  he  is  twenty-five  years  of  age,  has  been  seven 
years  a  citizen  of  the  United  States,  and  an  inhabitant  of  the  State  at 
the  time  of  his  election;  and  also  upon  the  further  question  as  to 
whether  any  person  elected  to  the  lower  House  of  Congress  is  hold 
ing  any  office  under  the  United  States.  The  extent  to  which  the  po 
sition  would  lead  shows  the  absurdity  of  the  position  assumed.  It 
will  not  do  for  my  friend,  Mr.  Jenks,  to  say  that  this  disability  in  the 
case  of  a  member  of  Congress  applies  only  to  his  acting  as  a  member 
of  Congress,  and  not  to  his  appointment ;  for,  as  I  maintain,  he  claims 
his  right  to  his  seat  in  Congress  by  virtue  of  the  commission  issued  by 
t  he  governor. 

Again,  if  the  governor  has  the  power  to  adjudicate  upon  the  ques 
tion  and  refuse  a  certificate  upon  a  conceded  state  of  facts  as  to  iuel- 
igibility,  then  he  also  has  the  right  to  determine  the  question  of 
both  fact  and  law  in  a  case  wherein  both  are  contested;  aud  this 
too  without  the  power  to  issue  process  for  or  to  compel  the  attend 
ance  of  a  solitary  witness,  and  barren  of  all  right  or  authority  to 
administer  an  oath  to  any  that  might  voluntarily  attend. 

In  a  case,  therefore,  wherein  the  facts  and  the  law  were  contro 
verted — for  instance,  as  to  whether  or  not  a  person  appointed  an 
elector  held  a  particular  Federal  office,  and,  if  so,  whether  such  office 
was  one  of  trust  or  profit  within  the  meaning  of  the  Constitution  of 
the  United  States — a  trial  before  the  executive  would  be  little  else 
than  a  farce.  That  the  framers  of  the  Constitution,  either  national 
or  Stale,  or  Congress,  or  the  Legislatures  of  States  ever  contemplated 
lodging  such  a  power  in  the  hands  of  the  governor  of  a  State  is  con- 
clusively  negatived  by  the  results  that  would  flow  from  its  assump 
tion  and  exercise. 

Mr.  Commissioner  HOAR.  I  should  like  to  ask  you,  for  my  own 
understanding  of  your  position,  who  you  understand  has  this  right 
to  adjudicate  under  the  laws  of  Oregon? 

Mr.  MITCHELL.  I  understand  that  it  is  the  duty  of  the  secretary 
o!'  state,  aud  him  alone,  under  the  laws  of  Oregon,  to  declare  who  is 
elected;  in  other  words,  to  declare  who  nas  received  the  highest 
number  of  votes;  and  when  that  declaration  is  made,  then  the  elect 
ors  are  appointed  by  the  State  in  the  manner  directed  by  the  Legis 
lature  thereof,  and  that  beyond  that  this  tribunal  cannot  go. 

But  it  is  said  the  clause  in  article  G  of  the  Constitution  of  the  United 
States  declares  that — 

All  executive  and  judicial  officers,  both  of  the  United  States  and  of  the  several 
States,  shall  bo  bound  by  oath  to  support  this  Constitution. 

And,  furthermore,  that  the  constitution  of  the  State  of  Oregon  re 
quires  the  governor  to  take  an  oath  to  support  the  Constitution  of 
tuo  United  States,  and,  inasmuch  as  the  Constitution  of  the  United 
States  provides  that  no  person  holding  an  office  of  trust  or  profit  under 
the  United  States  shall  be  appointed  an  elector,  that  therefore  the  gov 
ernor,  in  order  to  conform  to  the  letter  and  spirit  of  his  oath  of  office, 
WIM*/,  before  issuing  a  certificate  to  any  person  appointed  an  elector, 
determine  the  question  as  to  his  constitutional  eligibility,  and,  if  in 
his  judgment  such  person  is  laboring  under  such  constitutional  dis 
ability,  then  to  not  only  refuse  to  issue  to  him  his  certificate  but  to 
issue  it  to  somebody  else.  In  other  words,  that  by  virtue  of  these  pro 
visions  the  governor  becomes  the  conservator  of  the  constitution  and 
to  the  extent  that  authorizes  him  to  determine  grave  questions  of  law 
and  fact,  whether  controverted  or  conceded,  relating  to  the  eligibility 
of  persons  elected  to  office  ;  questions,  too,  that  in  many  instances 
not  only  touch  the  question  of  eligibility  to  office  but  affect  the  per 
son  concerned  criminally,  and  in  reference  to  which  such  person  has 
under  the  Constitution  of  the  United  States  the  right  of  trial  by  jury ; 
because  it  must  be  borne  in  mind  that  several  causes  of  ineligibility 
to  office  under  the  constitution  of  Oregon — and  I  contend  the  duties 
of  the  governor  are  the  same  in  either  case — are  by  the  laws  of  Oregon 
declared  to  be  felonies.  No  such  claim  can  be  successfully  maintained 
for  a  moment.  It  is  untenable,  illogical,  and  baseless  as  the  fabric  of 
a  dream.  It  is  unsupported  in  law  and  unaided  by  any  rule  of  ethics. 

The  Constitution  of  the  United  States  says  : 

~No  person  holding  an  office  of  trust  or  profit  under  the  United  States  shall  be 
appointed  an  elector. 

Does  the  governor  appoint  electors  ?  By  no  manner  of  means.  It  is 
the  State  that  appoints  electors  in  such  manner  as  its  Legislature  has 
directed.  It  has  directed  that  the  manner  in  which  they  shall  be  ap 
pointed  is  by  a  plurality  of  the  votes  of  the  people.  And  furthermore 
that  the  person  receiving  the  highest  number  of  votes  shall,  in  the  lan 
guage  of  the  statute,  be  deemed  elected.  The  governor  has  nothing 
whatever  to  do  with  the  appointment  of  electors  nor  yet  with  the  ques 
tion  of  determining  who  have  been  appointed.  The  appointment  is  Ity 
the  people — the  legal  voters.  The  question  as  to  whom  they  have  ap 
pointed  is,  under  the  law,  to  be  determined  by  the  secretary  of  state, 


and  in  that  determination  but  one  ingredient  can  enter,  and  that  is,  ir/io 
had  the  highest  number  of  voles  ?  and  then,  after  this  lias  all  been  done, 
after  the  people  have  appointed  and  the  secretary  of  state  has  deter 
mined  and  officially  declared  whom  they  have  appointed,  then,  and  not 
till  then,  has  the  governor  anything  to  do  in  connection  with  it.  Until 
all  this  has  taken  place  he  has  no  jurisdiction  whatever  to  do  any  act 
or  thing,  ministerially  or  otherwise,  save  and  except  to  be  present 
when  the  secretary  of  state  canvasses  the  votes.  And  even  after  all 
this  has  been  done,  his  only  authority  in  connection  with  the  whole 
matter  is,  if  he  follows  the  State  statute,  to  sign  the  certificates  made 
out  by  the  secretary  of  state  to  the  persons  heaving  the  highest  num 
ber  of  votes,  or,  if  the  act  of  Congress,  to  cause  three  lists  of  the  names 
of  the  electors  to  be  made  and  certified  and  to  be  delivered  to 
the  electors  on  or  before  the  day  of  meeting.  No  act  of  his  can  undo 
what  has  necessarily  been  done  by  the  State  and  passed  into  history 
before  his  right  to  act  at  all  could,  under  the  Constitution  or  the 
laws,  possibly  attach,  namely,  the  appointment  of  electors  and  the  de 
termination  by  the  secretary  of  state  as  to  the  persons  appointed. 
Cau  it  be  said  therefore  that  the  oath  of  the  governor  to  support  the 
Constitution  of  the  United  States  would  call  upon  him,  either  in  law 
or  morals,  much  less  empower  him  to  undo  not  only  the  appointment 
made  by  the  people  but  also  the  official  determination  of  the  secre 
tary  of  state  as  to  the  persons  appointed,  and  usurp  the  functions  of 
State,  people,  and  secretary  of  state,  and  make  an  appointment  him 
self,  and  that  too  of  a  person  rejected  by  the  people.  The  absurdity 
of  any  euch  claim  is  the  conclusive  answer  to  the  proposition. 

So  far  then  as  the  Constitution  of  the  United  States  is  concerned, 
the  governor  of  a  State  has  no  connection  whatever  with  electors  or 
the  electoral  college. 

Let  us  examine  then  as  to  his  power  and  duties  under  the  act  of 
Congress  under  which  he  claims  to  have  acted  in  issuing  his  certifi 
cate  ;  and  in  this  connection  I  desire  to  speak  also  as  to  the  effect 
of  a  certificate  issued  by  the  executive  of  a  State  in  pursuance  of 
the  act  of  Congress  of  1792.  The  third  section  of  the  act  of  Con 
gress  of  1792,  section  136  of  the  Revised  Statutes,  provides  that — 

It  shall  be  the  duty  of  the  executive  of  each  State  to  cause  three  lists  of  the  names 
of  the  electors  of  such  State  to  be  made  and  certified  aud  to  be  delivered  to  tho 
electors  on  or  before  the  day  on  which  they  are  required  by  the  preceding  sucliou 
to  meet. 

By  the  preceding  section  135  of  the  Revised  Statues,  1  he  electors 
are  to  meet  on  the  first  Wednesday  in  December  in  tho  year  in  which 
they  are  appointed. 

By  this  act  the  executive  authority  is  required  to  make  and  certify 
three  lists  of  the  names  of  tho  persons  who  have  been  appointed 
electors,  which  are  to  he  deliveredto  the  electors  on  or  before  the  first 
Wednesday  in  December.  These  lists  certified  by  tho  executive  au 
thority  are  simply  evidence  to  the  persons  that  they  have  been  ap 
pointed  electors.  The  governor's  certificate  is  no  part  of  the  appoint 
ment  of  an  elector.  The  appointment  is  to  be  made  by  the  State,  ami 
can  only  be  made  in  such  manner  as  the  Legislature  has  directed. 
The  manner  in  which  the  several  Legislatures  have  declared  these  ap 
pointments  shall  be  made  is  through  an  elect  ion  by  the  qualified  voters 
of  the  States  ;  and  the  governor's  certificate  is  intended  only  to  fur 
nish  evidence  of  the  result  of  the  election.  The  statute  in  regard  to 
tho  governor  is  merely  directory,  and  is  no  part  of  the  appointment  of 
an  elector,  which  is  left  exclusively  by  the  Constitution  to  the  several 
States.  Should  the  governor  of  a  State  choose  for  any  reason  to 
withhold  his  certificate,  he  could  not  thereby  defeat  the  appointment 
of  electors  by  the  State,  nor  could  he  do  so  by  giving  a  false  certifi 
cate  of  tho  appointment  of  persons  as  electors  who  were  not  ap 
pointed  ;  nor  by  giving  a  true  certificate  to  persons  who  are  not  elect 
ors  and  withholding  tho  same  from  the  persons  entitled.  In  any  of 
these  cases  the  title  of  the  electors  appointed  by  the  State  in  the 
manner  directed  by  tho  Legislature  thereof  would  not  bo  affected  ; 
but  such  electors  or  those  claiming  rights  under  and  by  virtue  of 
their  action  would  have  a  right  to  resort  to  the  next  best  evidence 
of  their  appointment,  which  would  in  the  case  of  Oregon  be  a  certifi 
cate  of  the  secretary  of  state,  (the  secretary  of  state  being  the  can 
vassing  board,)  under  the  seal  of  the  State,  showing  the  result  of  the 
election  and  who  had  been  appointed  electors  and  declared  such  by 
the  canvassing  officer.  The  part  to  be  performed  by  the  governor  is 
merely  ministerial  and  constitutes  simply  a  form  of  evidence  as  to 
who  have  been  appointed  electors.  Such  certificate  cannot  confer 
title,  neither  can  it  take  away  title.  It  is  no  part  of,  or  ingredient  in 
title;  it  is  merely  a  prescribed  form  of  evidence  of  title,  but  not  by 
any  means  a  conclusive  one.  It  cannot  be  converted  into  an  instru 
ment  of  fraud  or  made  the  means  of  defeating  the  vote  of  a  State, 
or  falsely  giving  the  election  of  President  or  Vice-Prcsident  to  per 
sons  who  were  not  appointed  by  the  State. 

If  the  governor's  certificate  be  any  part  of  the  manner  of  appoint 
ment  then  the  form  and  character  of'  tho  certificate  are  solely  a  matter 
within  the  power  of  the  State  Legislature,  and  in  such  event  sections 
136  and  138  of  the  Revised  Statutes  of  the  United  States  are  uncon 
stitutional  and  void,  for  it  must  be  conceded  that  the  Constitution  of 
the  United  States  grants  to  the  States  the  exclusive,  power  of  appoint 
ing  electors  in  such  manner  as  the  Legislatures  may  direct.  No  power 
on  earth  can  prescribe  the  manner  of  appointment  except  the  Legisla 
ture  of  the  State.  If,  therefore,  the  certificate  of  the  governor  is  a 
part,  one  ingredient  in  the  manner  of  appointment,  then  Congress  iu 
attempting  to  prescribe  the  form  and  character  of  the  certificate  has 


132 


ELECTORAL  COMMISSION. 


transcended  its  constitutional  limit  by  undertaking  to  regulate  the 
manner  of  appointment,  thus  encroaching  upon  a  jurisdiction  which 
uiider  the  Constitution  belongs  exclusively  to  the  Legislatures  of  the 
States.  But  the  certificate  of  the  governor,  as  prescribed  by  Congress, 
is  no  part  of  the  manner  of  appointment.  Congress  has  not  in  pre 
scribing  the  character  of  the  governor's  certificate  undertaken  to  in 
terfere  with  the  manner  of  appointment,  but  simply  to  prescribe  a 
convenient  form  of  evidence  of  the  appointment.  Any  certificate 
that  Congress  has  provided  for  or  could  prescribe  could  rightfully 
confer  no  power  upon  the  governor  to  do  anything  except  certify  the 
ultimate  result  of  the  vote  as  declared  by  the  canvassing  officers  of 
the  State.  He  must  take  what  the  State  has  done  in  the  manner  pre 
scribed  by  its  Legislature.  He  cannot  in  the  slightest  degree  inter 
fere  with  or  change  the  appointment  made  by  the  State. 

In  Oregon  there  was  no  law  authorizing  the  governor  to  certify  a 
minority  candidate  elected.  The  Legislature  of  Oregon  might  have 
provided  that  the  electors  should  be  appointed  by  the  governor,  the 
supreme  court,  or  the  secretary  of  state,  but  it  did  not ;  but  did  direct 
that  the  people,  the  qualified  electors,  shall  by  a  plurality  of  votes 
to  be  cast  in  the  different  precincts  choose  electors,  but  the  result 
of  this  vote  cannot  be  ascertained  unless  the  manner  prescribes  more. 
The  manner  of  appointment  necessarily  includes,  not  merely  the  way 
in  which  the  votes  shall  be  cast,  but  also  a  means  of  determining 
what  votes  were  cast,  and  the  result  of  such  vote ;  hence  the  Legis 
lature  of  the  State  has  provided,  as  a  part  of  the  means  necessary  to 
an  appointment,  the  mode  of  determining  and  declaring  the  result 
of  the  vote.  This  in  Oregon  prescribes  returns  from  precincts  to 
county  boards,  from  county  boards  to  the  secretary  of  state,  whose 
final  duty  it  is  to  canvass  the  votes  and  ascertain  who  has  the  great 
est  number  of  votes.  This  is  the  last  act  in  the  process  of  the  ap 
pointment  of  a  presidential  elector  by  the  State,  the  closing  scene 
in  the  manner  of  appointment.  This  done  and  officially  declared, 
and  the  electors  are  appointed.  What  follows  is  no  part  of  the  ap 
pointment,  but  simply  matter  of  evidence  of  the  fact.  All  that  pre 
cedes  enters  into  and  constitutes  a  part  of  the  manner  of  appointment. 

Governor  Grovcr  in  the  matter  of  issuing  his  certificates,  he  tells 
us,  ignored  the  State  statute  and  followed  that  of  Congress.  If 
Congress  had  the  power  to  prescribe  the  form  of  a  certificate,  and  I 
believe  it  had,  then  snch  certificate  is  no  part  of  the  manner  of  ap 
pointment,  and  in  issuing  it  the  governor  could  not  change  the  ap 
pointment  as  made  by  the  State  and  officially  determined  by  the  sec 
retary  of  state  as  tho  final  and  conclusive  act  in  the  process  of  appoint 
ment.  Behind  this  ultimate  determination  of  the  canvassing  board, 
neither  the  governor  of  the  State  nor  the  tribunal  whose  final  duty  it 
is  to  count  tho  votes  for  President  and  Vice- President,  whether  it  be 
the  President  of  the  Senate,  the  two  Houses  of  Congress,  or  the  elect 
oral  tribunal,  can  rightfully  go.  The  determination  of  the  canvass 
ing  board  is  final  and  conclusive  on  all  departments  and  on  all  per 
sons,  concluding  voter  and  candidate,  State  and  nation.  Not  so  how 
ever  with  the  certificate  of  the  governor,  which,  whether  issued  under 
the  State  statutes  or  the  Kovised  Statutes  of  the  United  States,  is  in 
no  respect  a  part  of  the  manner  of  appointment,  but  simply  a  species  of 
evidence  of  such  appointment,  which  if  false  or  fraudulent  or  issued 
through  mistake  is  not  conclusive  upon  the  tribunal  whose  duty  it  is 
to  cd*uutthe  votes  of  the  electors  appointed,  and  which  cannot  count 
tho  votes  of  persons  whom  the  State  never  appointed  but  who  through 
mistake,  fraud,  or  corruption  may  have  succeeded  in  obtaining  a  cer 
tificate  from  the  governor.  The  electoral  tribunal  can  question  this 
or  any  other  proceeding  down  to  the  boundary  line  where  they  touch 
the  manner  of  appointment ;  there  the  jurisdiction  ends — the  decision  of 
tho  State  through  its  canvassing  officer  being  final  and  conclusive. 

Mr.  Commissioner  GARF1ELD.  Allow  me  to  ask  whether  tho  lan 
guage  of  the  thirty-seventh  section  of  the  law  of  Oregon  that  re 
quires  the  governor  to  issue  a  proclamation  declaring  the  election  of 
the  officers  applies  to  the  election  of  electors  ? 

Mr.  MITCHELL.    It  does  not. 

Mr.  Commissioner  GAKFIELD.  And  whether  as  a  matter  of  fact 
the  governor  does  issue  a  proclamation  of  election  to  the  electors? 

Mr.  Senator  MITCHELL.  I  do  not  understand  that  tho  language 
applies.  My  own  opinion  is  that  it  does  not  apply. 

Mr.  Commissioner  GAKFIELD.  Does  he  issue' a  proclamation  to 
that  effect! 

Mr.  Senator  MITCHELL.  Not  as  a  matter  o''  fact.  It  does  not  ap 
ply  at  all,  I  claim. 

Mr.  Commissioner  ABBOTT.  Is  there  any  other  law  on  this  sub 
ject  of  canvassing  the  votes  except  the  thirty-seventh  section  ? 

Mr.  Senator  MITCHELL.  That  is  all ;  and  that  proscribes  that  it 
shall  be  done  in  the  manner  prescribed  in  reference  to  members  of 
Congress  and  set  out  in  tho  foregoing  section. 

Mr.  Commissioner  ABBOTT.  I  see  there  is  no  provision  that  the 
secretary  shall  certify  who  has  been  elected,  but  simply  that  he  shall 
canvass  the  votes  and  the  governor  give  the  certificate. 

Mr.  Senator  MITCHELL.  It  prescribes  that  the  secretary  of  state 
shall  canvass  the  votes  and  declare  who  has  received  the  highest 
number  of  votes,  and  that  he  shall  prepare  lists  to  that  effect,°that 
he  shall  sign  his  name  to  those  lists,  and  that  it  shall  be  the  duty  of 
the  governor  to  certify  to  those  lists. 

Mr.  Commissioner  A'BBOTT.  I  do  not  see  hero— will  yon  ploaso 
point  it  out  to  mo— where  tho  secretary  of  state  is  to  ascertain  that! 

The  PRESIDENT.     The  tloor  is  yours,  Mr.  MITCHELL. 


Mr.  Senator  MITCHELL.  I  have  no  objection  to  yielding,  but  I 
do  not  desire  that  it  shall  bo  taken  out  of  my  time. 

The  PRESIDENT.  The  Commissioners  would  object  if  I  did  not 
take  it  out  of  your  time.  I  therefore  admonished  you  that  you  have 
the  floor. 

Mr.  Senator  MITCHELL.  I  have  no  objection  to  yielding  except 
that  it  shall  not  be  taken  out  of  my  time. 

I  pass  now  to  consider  the  question  as  to  the  power  and  duty  of 
the  governor  in  this  regard  under  the  constitution  of  the  State  of  Ore 
gon. 

Should  it  be  held  that  the  determination  by  the  governor  of  a 
State  of  a  question  as  to  the  iueligibility  of  an  elector  is  the  exercise 
of  judicial  power,  then  clearly  neither  the  constitution  of  the  State 
nor  the  statutes  confer  such  power.  If,  upon  the  contrary,  it  is  tho 
exercise  of  administrative  or  political  power,  then  it  can  only  be  ex 
ercised  in  pursuance  of  some  warrant  contained  in  thestatutes  of  tho 
State.  Without  stopping  to  inquire  what  it  is,  I  will  proceed  to 
show  that  there  is  no  authority  for  the  one  or  the  other,  either  in  tho 
constitution  or  the  statutes. 

Tho  jurisdiction  of  the  different  departments  is  clearly  defined  in 
the  constitution  of  the  State  of  Oregon,  and  under  the  distribution 
of  powers  therein  contained  the  governor  can  exercise  no  judicial 
functions  whatever,  while  all  the  judicial  power  is  expressly  conferred 
upon  other  departments  and  officers.  Article  3  of  the  constitution 
of  the  State  provides  as  follows,  under  the  head  of — 

DISTRIBUTION  OF  POWERS. 

SECTION  1.  The  powers  of  the  government  shall  be  divided  into  three  separate  de 
partments,  the  legislative,  theexecutive,  (including  the  administrative,)  aud  tho  ju 
dicial  ;  and  no  person  charged  with  official  duties  under  ono  of  these  departments 
shall  exercise  any  of  tho  functions  of  another,  except  as  in  this  constitution  ex 
pressly  provided. 

Section  1  of  article  7  reads  as  follows  : 

The  judicial  power  of  the  State  shall  be  vested  in  a  supreme  court,  circuit  courts, 
and  county  courts,  which  shallbo  conrtsof  record  having  general  jurisdiction,  to  ho 
defined,  limited,  and  regulated  by  law  in  accordance  with  this  constitution.  Jus 
tices  of  tho  peace  may  also  bo  invested  with  limited  judicial  powers,  and  municipal  • 
courts  may  be  created  to  administer  the  regulations  of  incorporated  towns  and 
cities ; 

While  section  9  of  article  7  is  in  these  words  : 

All  judicial  power,  authority,  and  jurisdiction  not  vested  by  this  constitution  or 
by  laws  consistent  therewith  exclusively  in  some  other  courts ;  and  they  shall  havo 
appellate  jurisdiction  and  supervisory  control  over  the  county  courts,  and  all  other 
inferior  courts,  officers,  and  tribunals. 

From  these  several  provisions  it  is  clear  that  the  governor  of  Ore 
gon  cannot  rightfully  exercise  any  judicial  power ;  that  any  attempt 
to  do  so  is  a  usurpation  of  power,  and  his  action  would  be  not  merely 
voidable  but  absolutely  void  for  want  of  jurisdiction.  And  these  sev 
eral  provisions  of  the  constitution  are  in  full  consonance  with  the  well- 
recognized  division  of  the  powers  of  a  free  republican  government, 
as  stated  by  elementary  writers. 

Story  on  the  Constitution,  page  520,  in  speaking  on  the  subject 


In  the  establishment  of  a  free  government,  the  division  of  the  three  great  powers 
of  government  the  executive,  the  legislative,  and  tho  indicia!  among  different 
functionaries,  has  been  a  favorite  policy  with  patriots  aud  statesmen. 

It  has  by  many  been  deemed  a  maxim  of  vital  importance  that  these  powers 
should  forever  be  kept  separate  and  distinct.  And,  accordingly,  we  find  it  laid 
down  with  emphatic  care  in  the  bill  of  rights  of  several  of  tho  State  constitutions. 
In  the  constitution  of  Massachusetts,  for  example,  it  is  declared  that  "in  the  gov 
ernment  of  this  Commonweal Lh,  the  legislative  department  shall  never  exercise  the 
executive  and  judicial  powers,  or  either  of  them  ;  tho  executive  shall  never  cxor- 
ciae  the  legislative  or  judicial  powers,  or  either  of  them  ;  the  judicial  shall  never 
exercise  the  legislative  and  executive  powers,  or  either  of  them ;  to  the  end  it  may 
be  a  government  of  laws  and  not  of  men." 

Again,  a  writer  in  the  Federalist,  in  adverting  to  the  great  danger 
of  an  accumulation  of  legislative,  executive,  and  judicial  powers  in 
tho  same  hands,  and  of  tho  importance  of  keeping  them  separate,  says : 

The  accumulation  of  all  powers,  legislative,  executive,  and  judiciary,  in  the  same 
hands,  whether  of  ono,  a  few,  or  many,  and  whether  hereditary,  self-appointed,  or 
elective,  may  bo  justly  pronounced  the  very  definition  of  tyranny. 

We  inquire  further,  moreover,  as  to  the  startling  magnitude  of  the 
power  claimed  by  Governor  Grover  in  assuming  to  pass  upon  and  de 
termine  the  question  as  to  the  ineligibility  of  persons  elected  to  office 
under  the  constitution  and  laws  of  Oregon,  whether  it  be  called  ju 
dicial,  administrative,  or  political.  As  has  been  said,  if  he  has  the 
power  in  one  case  of  alleged  disability  he  has  it  in  all  cases,  and  it 
is  his  duty  to  exercise  it  iu  all  cases  coming  before  him.  The  statute 
of  Oregon  provides  that — 

The  votes  for  electors  shall  be  given,  received,  returned,  and  canvassed  as  the 
same  are  given,  received,  returned,  and  canvassed  for  members  of  Congress. 

On  a  reference  to  how  votes  for  members  of  Congress  are  given, 
received,  returned,  and  canvassed,  we  find  that  the  votes  for  secre 
tary  of  state,  State  treasurer,  State  printer,  justices  of  the  supreme 
court,  and  district  attorneys  are  given,  received,  returned,  and  can 
vassed  in  precisely  the  same  manner.  In  any  and  all  these  cases  the 
certificate  of  the  governor  is  to  bo  given  to  the  person  receiving  the 
highest  number  of  votes.  This  being  so,  we  turn  again  to  the  con 
stitution  of  the  State  of  Oregon  for  tho  purpose  of  inquiring  as  to 
the  constitutional  causes  of  ineligibility  of  persons  to  bo  elected  to 
any  of  those  offices  under  such  constitution,  and  to  the  character  of 
the  inquiry  the-  governor  would  necessarily  be  compelled  to  make  iu 
case  of  a  contest  in  determining  these  several  questions  of  iucligi- 


ELECTORAL  COMMISSION. 


133 


bility  ;  all  of  which  will  show  conclusively  that  to  act  on  any  such 
assumption  is  the  exercise  of  judicial  power  of  the  very  gravest  char 
acter.  For  instance,  section  7  of  article  2  of  the  constitution  of  the 
State  of  Oregon,  under  the  head  of  <l  suffrage  aud  elections,"  reads  as 
follows : 

Every  person  shall  bo  disqualified  from  holding  office  dnring  the  term  for  which 
ho  may  have  been  elected,  who  shall  have  given  or  offered  a  bribe,  threat,  or  re 
ward  to  procure  his  election. 

Here,  then,  is  a  constitutional  disqualification.  Under  the  position 
assumed  by  Governor  Grover,  if  it  is  suggested  to  him  by  some  ex 
parte  affidavit  or  otherwise  that  a  person  who  has  received  the  high 
est  number  of  votes  for  State  treasurer,  secretary  of  state,  State 
printer,  or  any  of  the  officers  named  had  given  or  offered  a  bribe, 
threat,  or  reward  to  procure  his  election,  and  the  person  accused  de 
nies  it,  he  must  enter  upon  an  investigation  of  the  charge,  which 
under  the  statutes  of  the  State  is  a  criminal  one,  and,  because  he  has 
taken  an  oath  to  support  the  Constitution  of  the  State  and  of  the 
United  States,  he  must  determine  this  question  as  to  the  eligibility 
of  the  person  elected.  And  so  in  reference  to  section  9  of  article  2, 
which  provides  that — 

Every  person  who  shall  give  or  accept  a  challenge  to  fight  a  duel,  or  shall  know 
ingly  carry  to  another  such  challenge,  or  who  shall  agree  to  go  out  of  the  State  to 
fight  a  duel,  shall  be  ineligible  to  any  ofiice  of  trust  or  profit. 

Section  10  of  the  same  article  reads  as  follows : 

No  person  holding  a  lucrative  office  or  appointment  under  the  United  States  or 
under  this  State  shall  be  eligible  to  a  seat  in  the  legislative  assembly;  nor  shall 
any  person  hold  more  than  one  lucrative  office  at  the  same,  time,  except  as  in  this 
constitution  expressly  permitted:  Provided,  That  offices  in  the  militia,  to  which 
there  is  attached  no  annual  salary,  and  the  office  of  the  postmaster,  where  the  com 
pensation  does  not  exceed  $100  per  annum,  shall  not  be  deemed  lucrative. 

And  section  11  reads  as  follows  : 

No  person  who  may  hereafter  be  a  collector  or  holder  of  public  money  shall  bo 
eligible  to  any  office  of  trust  or  profit  until  ho  shall  have  accounted  for  and  paid 
over,  according  to  law,  all  sums  for  which  he  may  be  liable. 

Passing  then  from  a  consideration  of  the  powers  of  the  executive 
of  Oregon  as  prescribed  by  the  provisions  of  the  constitution  of  the 
State,  we  next  inquire  what  are  his  powers  and  duties  as  prescribed 
in  the  statutes  of  the  State  in  so  far  as  they  relate  to  the  electoral 
college.  And  here  we  find  that  in  all  legislation  on  the  subject  the 
limitations  in  the  constitution  on  executive  power  have  been  care 
fully  borne  in  mind  and  jealously  guarded  by  the  law-making  power 
of  the  State,  the  duties  prescribed  for  and  imposed  upon  the  gov 
ernor  being  of  a  purely  ministerial  character.  Before  proceeding 
however,  to  introduce  the  statutes  of  the  State,  it  may  be  well  to  at 
tract  attention  to  section  16  of  article  2  of  the  constitution  of  the 
State,  for  the  purpose  of  showing  that  in  all  elections  by  the  people, 
which  of  course  includes  the  election  of  presidential  electors,  the  per 
son  or  persons  receiving  the  highest  number  of  votes  shall  be  declared 
duly  elected.  The  section  reads  as  follows: 

In  all  elections  held  by  the  people  under  this  constitution  the  person  or  persons 
who  shall  receive  the  highest  number  of  votes  shall  be  declared  duly  elected.— 
Section  1C,  article  2  of  State  constitution. 

Here  is  a  constitutional  mandamus  to  the  secretary  of  state  direct 
ing  him  to  declare  the  person  who  has  received  the  highest  number 
of  votes  duly  elected ;  and  neither  the  secretary  of  state  as  the  can 
vassing  officer,  nor  the  governor  as  the  ministerial  officer,  whose  sole 
duty  it  is  to  place  his  signature  to  the  lists  made  by  the  secretary  of 
state,  and  which  the  secretary  alone  has  the  power  to  make,  has  any 
power  whatever  to  adjudicate  the  question  as  to  whether  such  person 
so  receiving  the  highest  number  of  votes  was  ineligible  or  for  any 
other  cause  not  duly  elected.  That  belongs  to  another  department 
and  another  tribunal. 

I  now  pass  to  a  consideration  of  the  powers  and  duties  of  the  gov 
ernor  under  the  statutes  of  Oregon. 

Section  19  of  the  election  laws  of  Oregon  provides  that: 

The  county  clerk,  immediately  after  making  the  abstract  of  the  votes  given  in 
his  county,  shall  make  a  copy  of  each  of  said  abstracts  and  transmit  it  by  mail  to 
the  secretary  of  state  at  the"  seat  of  government,  and  it  shall  be  the  duty  of  the 
secretary  of  state,  in  the  presence  of  the  governor,  to  proceed  within  thirty  days 
after  the  election,  and  sooner  if  the  returns  be  all  received,  to  canvass  the  votes 
given  for  secretary  and  treasurer  of  state,  State  printer,  justices  of  the  supreme 
court,  member  of 'Congress,  and  district  attorneys ;  and  the  governor  shall  giant  a 
certificate  of  election  to  the  person  haying  the  highest  number  of  votes,  and  shall 
also  issue  a  proclamation  declaring  the  election  of  such  person.  In  case  there 
shall  be  no  choice,  by  reason  of  any  two  or  more  persons  having  an  equal  and  the 
highest  number  of  votes  for  either  of  such  offices,  the  governor  shall  by  procla 
mation  order  a  new  election  to  fill  said  offices. 

It  will  be  observed  that  the  secretary  of  state  is  made  the  canvass 
ing  or  returning  officer  of  the  State  to  count  the  votes  and  determine 
who  have  been  elected  to  the  offices  named  therein,  which  is  to  be 
done  in  the  presence  of  the  governor.  The  governor  takes  no  part 
in  the  canvass  or  determination  of  the  result,  but  is  simply  required 
to  be  present  as  a  witness,  and  then  he  is  required  to  grant  a  cer 
tificate  of  election  to  the  person  having  the  highest  number  of  votes, 
and  is  thus  precluded  by  express  provision  from  passing  upon  ques 
tions  as  to  the  eligibility  of  candidates,  his  duty  being  peremptorily 
prescribed  by  the  statute  to  grant  a  certificate  to  the  person  having 
the  highest  number  of  votes. 

Section  3  of  the  act  providing  for  the  election  of  presidential  elect 
ors  provides  that — 

The  votes  for  the  electors  shall  be  given,  received,  returned,  and  canrnssed  as 
the  same  are  given,  returned,  and  canvassed  for  members  of  Congress.  The  sec- 


rotary  of  state  shall  prepare  two  lists  of  the  names  of  tho  electors  elected,  nnd  affix 
the  seal  of  the  State  to  the  same.  Such  lists  shall  be  signed  by  the  governor  and 
secretary,  and  by  tho  latter  delivered  to  the  college  of  electors  at  the  hour  of  their 
meeting  on  such  first  Wednesday  of  December. 

By  the  section  of  the  statute  first  quoted,  it  is  made  the  absolute 
duty  of  the  governor  to  give  a  certificate  of  election  to  the  candidate 
for  Congress  having  the  highest  number  of  votes;  and  the  sect  ion 
relating  to  presidential  electors  provides  that  tho  votes  for  electors 
shall  be  given,  received,  returned,  and  canvassed  as  the  same  are  for 
members  of  Congress.  Thus  it  is  made  the  absolute  duty  of  the  gov 
ernor  to  give  a  certificate  to  the  candidate  for  elector  having  the 
highest  number  of  votes.  The  statute  leaves  him  uo  discretion  what 
ever.  The  secretary  of  state  is,  as  in  the  other  case,  made  the  re 
turning  officer,  and  he  is  to  prepare  the  lists  of  the  names  of  the  elect 
ors  elected,  and  affix  the  seal  of  the  State  to  the  same. 

The  secretary  of  state,  as  in  tho  case  of  members  of  Congress,  is  to 
certify  the  "  names  of  the  electors  elected,  and  affix  the  seal  of  the 
State  to  the  same."  The  list  thus  prepared  by  the  secretary  of  slate 
the  governor  is  required  to  sign,  and  by  the  secretary  of  state  they 
are  to  be  "delivered  to  the  college  of  electors  at  the  honr  of  their 
meeting  on  such  first  Wednesday  of  December."  It  is  made  the  per 
emptory  duty  of  the  governor  to  sign  the  list  as  prepared  by  the  sec 
retary  of  state.  The  secretary  of  state  is  positively  required  by  law 
to  give  the  certificate  to  the  person  having  the  highest  number  of 
votes.  For  the  governor  to  assume  to  exercise  the  judicial  or  discre 
tionary  power  in  regard  to  the  eligibility  of  candidates  for  Congress, 
supreme  judge,  treasurer  of  the  State,  secretary  of  state,  State  print 
er,  prosecuting  attorneys,  or  electors,  would  be  to  act  in  the  face  of  a 
direct  provision  of  the  statute  of  the  State. 

With  the  effect  of  a  certificate  the  governor  has  nothing  to  do.  His 
duties  are  purely  ministerial,  and  are  prescribed  in  plain,  direct  terms 
by  the  statute,  and  about  them  there  can  be  no  possible  room  for 
controversy. 

Governor  Grover  assumes  that  there  is  a  conflict  between  the  act  of 
Congress  of  1792  and  the  statutes  of  Oregon,  and  bases  his  justifica 
tion  for  a  violation  of  the  statute  of  Oregon  upon  his  duty  to  exe 
cute  the  act  of  Congress.  There  is  no  possible  conflict  between  the 
act  of  Congress  and  the  statute  of  Oregon,  except  in  the  one  imma 
terial  particular,  namely,  that  the  act  of  Congress  requires  three  lists 
of  the  names  of  electors  to  be  made  out,  while  the  statute  of  Oregon 
prescribes  only  tico.  The  third  section  of  the  act  of  Congress  touch 
ing  this  question  reads  thus  : 

That  tho  executive  authority  of  each  State  shall  cause  three  lists  of  the  names 
of  the  electors  of  such  State  to  be  made  and  certified,  to  be  delivered  to  the  elect 
ors  on  or  before  the  said  first  Wednesday  in  December,  and  tho  said  electors  shall 
annex  one  of  the  said  lists  to  each  of  the' lists  of  their  votes. 

The  governor  is  required  to  make  three  lists  or  certificates  of  tho 
electors  of  the  State.  How  is  he  to  know  that  they  are  electors? 
By  an  inquiry  inaugurated  on  his  own  account  upon  an  issue  raised 
by  ex  parte  petitions  or  affidavits  coming  from  unofficial  sources  or 
irresponsible  parties?  Certainly  not.  But  simply  because  they  have 
been  certified  to  him  as  having  been  appointed  electors  in  the  mode 
prescribed  by  the  Legislature  of  the  State,  the  Legislature  being  ex 
pressly  authorized  by  the  Constitution  of  the  United  States  to  pre 
scribe  the  mode  of  appointment.  Whoever,  then,  are  officially  de 
clared  or  certified  to  have  received  the  highest  number  of  votes  in  the 
mode  prescribed  by  the  Legislature  are  the  persons  to  whom  the  act  of 
Congress  requires  he  shall  give  the  lists  or  certificates.  With  the  ap 
pointment  of  these  electors  he  has  nothing  to  do  and  can  have  noth 
ing  to  do,  for  that  by  the  Constitution  is  expressly  left  to  the  State, 
to  be  done  in  the  manner  prescribed  by  its  Legislature,  and  when 
their  appointment  has  been  declared  by  the  officer  or  officers  of  tho 
State  appointed  by  the  laws  of  the  State  for  that  purpose,  which 
under  the  laws  of  Oregon  is  the  secretary  of  state,  and  him  alone, 
they  are  the  electors  to  whom  the  act  of  Congress  requires  that  ho 
shall  give  the  certificates.  The  assumption  upon  his  part  of  the 
right  to  decide  that  the  persons  who  have  been  appointed  electors  in 
the  method  prescribed  by  the  Legislature  are  ineligible  is  wholly 
without  warrant  in  law.  The  act  of  Congress  simply  provided  a 
form  of  evidence  as  to  who  had  been  appointed  electors  by  the  State, 
and  the  executive  authority  of  the  State  is  introduced  simply  for  the 
purpose  of  making  the  certificate  or  lists.  The  statute  of  the  State 
requires  the  secretary  of  state  to  canvass  and  return  the  votes  for 
electors  as  it  js  done  for  members  of  Congress ;  and  as  he  is  required 
in  the  case  of  members  of  Congress  to  certify  to  the  candidate  having 
the  highest  number  of  votes,  so  he  is  required  in  the  case  of  electors 
to  certify  to  the  candidate  having  the  highest  number  of  votes;  and 
as  the  governor  is  required  in  the  case  of  a  candidate  for  Congress  to 
give  a  certificate  to  the  person  having  the  highest  number  of  votes, 
so  he  is  required  in  the  case  of  an  elector  to  give  a  certificate  to  the 
person  having  the  highest  number  of  votes,  and  he  has  just  as  much 
right,  and  no  more,  no  less,  to  pass  upon  the  eligibility  or  qualifica 
tions  of  a  candidate  for  Congress  as  he  has  upon  that  for  a  candidate 
for  elector.  And  to  illustrate  the  absurdity  of  the  position  assumed 
by  the  governor,  he  in  his  evidence  before  the  committee  said  that 
he  considered  it  his  duty  to  pass  upon  the  qualifications  of  a  candi 
date  for  Congress  in  giving^his  certificate,  and  that  he  would  refuse 
a  certificate  to  a  candidate  whom  he  believed  to  be  ineligible.  The 
idea  that  the  governor  of  a  State  may  refuse  to  grant  a  certificate 
of  election  to  a  candidate  for  Congress  who  has  received  the  highest 
number  of  votes,  because  in  his  opinion  the  candidate  is  ineligible 


134 


ELECTORAL  COMMISSION. 


under  tlic  Constitution  or  law,  ami  that  ho  may  exercise  a  like  judi  - 
ciul  power  in  regard  to  candidates  for  electors,  seems  to  be  supremely 
ridiculous,  entirely  destitute  of  support  in  law,  and  at  irreconcila 
ble  variance  with  reason  and  common  sense. 

Mr.  Commissioner  FRELLNGHUYSEN.    May  I  ask  ono  question  ? 

Mr.  Senator  MITCHELL.     Certainly. 

Mr.  Commissioner  FRELINGHUYSEN.  Does  this  act  which  pro 
vides  for  canvassing  the  votes  for  electors  provide  for  any  declaration 
or  proclamation  being  made  by  the  governor? 

Mr.  Senator  MITCHELL.  It  does  not.  It  simply  provides  that 
Ilio  secretary  of  state  shall  canvass  the  votes  and  issue  the  certificate 
In  I  he,  person  having  the  highest  number  of  votes,  and  the  law  makes 
it  the  imperative  duty  of  the  executive  of  the  State  to  sign  that  list. 
No  power  whatever  is  given  him,  either  ministerially,  politically,  ju 
dicially,  or  any  other  wise,  to  pass  on  the  question  whether  the  per 
son  receiving  the  highest  number  of  votes  was  eligible  or  ineligible. 

I  now  pass  to  a  consideration  of  the  question,  could  Cronin,  being 
a  minority  candidate,  bo  elected  ? 

Admitting  for  the  sake  of  the  argument  that  the  governor  of  Ore 
gon  had. jurisdiction  to  pass  upon  the  question  of  the  ineligibilitj  of 
Watts,  an  assumption  I  have  tried  to  show  is  wholly  destitute  of 
support  in  law,  the  next  inquiry  is  as  to  whether  it  was  his  right 
under  the  law  to  issue  the  certificate  of  election  to  the  minority  can 
didate,  or,  in  other  words,  whether  aminority  candidate  was  elected 
it'  the  majority  candidate  were  ineligible  to  receive  the  office. 

It  may  be  stated  without  fear  of  successful  contradiction  that  no 
decision'  can  be  found  in  the  English  or  American  reports  which  would 
give  the  election  to  a  minority  candidate  under  the  circumstances  of 
this  case.  It  has  been  held  in  England  that  the  minority  candidate 
is  elected  where  the  electors  have  personal  •  and  direct  knowledge  of 
the  incligibility  of  the  majority  candidate.  It  is  believed  that  no 
case  can  bo  found  in  England  where  it  was  held  that  constructive 
knowledge  of  the  iueligibility  of  the  majority  candidate  would  besuf- 
licient  to  give  the  election  to  the  minority  candidate.  All  the  cases 
in  which  the  minority  candidates  have  been  hold  to  be  elected  were 
where  there  were  very  small  constituencies,  generally  corporations, 
and  where  the  knowledge  of  the  ineligibility  was  brought  homo  to 
every  voter.  More  than  that,  it  is  the  well-settled  law  in  England 
that  the  voter  is  not  in  such  a  case  presumed  or  required  to  know  the 
law,  and  that  it  is  not  to  be  presumed  that  he  knows  cither  what  the 
law  is  creating  the  ineligibility,  or  even  if  ho  knows  the  law  that  he 
knows  the  effect  of  it  to  be  such  as  to  make  the  candidate  ineligible. 
It  must,  therefore,  not  only  be  shown  that  he  knows  the  disqualifying 
provision  of  the  law  or  the  decision  of  the  court  which  in  fact  made 
the  candidate  ineligible,  but  that  he  also  knew  the  Icyal  effect  of  the 
law  or  of  the  decision,  and  that  it  had  the  effect  to  disqualify  the 
candidate  from  being  elected  to  the  office. 

The  doctrine  of  the  law  in  England  on  this  subject  cannot  be  bet 
ter,  more  ably,  or  clearly  stated  than  by  quoting  from  the  able  speech 
made  by  Senator  TIIURMAN,  of  Ohio,  in  the  United  States  Senate  in 
the  Forty-first  Congress  in  the  contested  case  of  Abbott  vs.  Vance. 

The  Senator  iu  that  case  used  the  following  language  : 

Again,  in  tho  English  cases  the  intention  of  the  voter  to  throw  away  his  vote 
might  well  enough  bo  imputed  to  him,  because,  as  I  said,  it  belonged  to  him ;  and  if 
he  knowingly  and  willfully  voted  for  a  nianwhom  ho  knew  would  never  bo  allowed 
to  hold  the  office,  the  natural  presumption  was  that  ho  intended  to  throw  away  his 
vote ;  and  it  is  upon  this  ground  that  ho  did  willfully  throw  away  his  vote,  that  his 
vote  is  rejected  from  the  count.  This  can  be  proved  in  a  sentence  almost.  If  tho 
English  voter  voted  for  a  disqualified  man,  not  kuowingof  thodisqualilication,  then 
tko  minority  man  is  not  elected.  \Vo  all  agree  to  that.  Every  case  says  that.  Tho 
bare  fact,  then,  of  disqualification  or  disability  on  the  part  (if  tho  man  receiving  a 
majority  does  not  elect  thomiuority  man.  It  isneeessary  not  only  that  the  majority 
man  shall  bo  disqualified,  but  that  tho  voters -shall  have  had  clear,  positive,  certain 
knowledge  of  this  disqualification,  and  yet  contumaciously,  willfully,  and  know 
ingly  cast  their  votes  for  him ;  and  wlieii  that  is  tho  case  they  may  well  enough  bo 
presumed  to  have  intended  tho  natural  result  of  their  act,  intended  to  throw  away 
their  votes. 

*  *  *  *  *  *  * 

I  proceed  to  show  further  differences  between  the  English  cases  and  the  case  be 
fore  us.  In  tho  English  cases  the  voter  knew  to  a  moral  certainly  that  tho  person 
for  whom  ho  voted  would  never  bo  permitted  to  hold  tho  office.  There  was  nothing 
in  the  liritish  constitution,  nothing  in  any  act  of  Parliament,  nothing  in  any  iu- 
dicial  oi'  parliamentary  decision  that  holdout  tho  least •  idea  or  hope  that  thorns- 
qualification  of  tho  person  voted  for  would  bo  removed,  and  he  permitted  to  take 
and  hold  theollice. 

Again,  in  England,  numerous  decisions  had  settled  tho  law.  Tho  Senator  from 
Wisconsin  said  it  bM  been  settled  for  three  hundred  years.  I  do  not  care  about 
going  into  tho  chronology  to  know  whether  that  settlement  was  perfectly  exactor 
not;  but  it  was  well  settled  in  England  that  in  elections  of  the  kind 'that  have 
boon  referred  to,  if  the  voter  knowingly  cast  his  vote  for  a,  disqualified  man  that 
vote  would  bo  rejected.  Every  voter,  therefore,  casting  his  vote  for  a  disqualified 
man,  knowing  him  to  bo  so,  knew  that  tho  minority  man  would  be  seated,  and 
therefore  ho  might  bo  held  to  have  assented  to  tho  seating  of  that  minority  man. 
But  no  such  thing  was  known  to  the  General  Assembly  of  North  Carolina.  They 
had  no  light  to  think  any  such  thing  :  for  from  the  very  foundation  of  this  Govern 
ment  down  to  this  day,  at  least  from  i7!Ci  dmon  to  this  day,  there  is  an  unbroken  chain 
of  cases  in  both  Homes  of  Congress  anainut  the  idea  of  Heating  a  minority  man,  while 
there,  is  not  one  single  instance  from  the  foundation  of  the  Government  to  this  day  in 
which  a  minority  man  has  been  seated  in  either  branch  of  Vonr/ress  on  the  ground 
that  the  man  who  received  a  majority  of  the  votes  was  a  disqualified  person. 

Again,  further  on  in  the  same  speech,  the  distinguished  Senator 
said : 

Again,  here  is  another  thing  that  the  Legislature  of  North  Carolina  had  a  right 
to  know,  and  that  distinguishes  this  case  from  the  English  cases,  and  that  is,  that 
the  weight  of  judicial  decision  in  the  United  States  is  decidedly  ar/ainst  the  claim  of 'a 
minoruu  man  to  an  election.  That  is  an  element  wholly  wanting  in  tho  English 
cases.  In  England  the  entire  current  of  decisions  was  that  the  minority  man  could 


IKIVC  the,  seat.  In  America  the  decided  weight  of  jutUc.i'il,  in  fact,  every  cane  Ira/  <•.  ir 
decided  by  a  supreme  court,  is  against  the  pretensions  vf  the  minority  candidate;  and 
that  tho  Legislature  of  North  Carolina  had  a  right  to  look  at  and  to  build  their  ex 
pectations  upon  when  they  voted  for  Mr.  Vance. 

Here,  then,  are  no  less  than  six  or  seven  important,  nay  almost  every  one  of  t  hem 
conclusive,  elements  in  this  case,  not  ono  of  which  was  in  the,  English  cases:  and 
yet  it  is  contended  that  the  Senate  of  the  United  States  is  to  disregard  the  first,  princi 
ples  of  republican  government  and  seat  a  man  who  did  not  receive  one-third  of  the, 
votes  of  the  Legislature  upon  the  doctrine  of  the,  Enfflish  cases,  when  those  cases,  and 
the  case  before  us  stand  on  wholly  different  foundations. 

The  Senator  in  tho  above  quotation  stated  the  case  broadly  and 
strongly  as  to  the  rule  in  England.  He  did  not,  however,  mention 
one  ingredient  of  importance  in  the  rule  as  laid  down  by  the  decision 
in  the  English  courts  and  in  Parliament,  namely,  that  this  knowledge 
upon  the  part  of  a  voter  referred  to  by  him  must  apply  as  well  to 
the  disqualifying  law  as  to  the  disqual ifying  fact.  And  under  the  En 
glish  law  a  knowledge  of  the  disqualifying  fact  alone  was  not  sufficient 
to  elect  tho  minority  candidate,  but  he  must  have  actual  knowledge 
of  the  disqualification  in  law  .arising  from  the  existence  of  such  fact. 
In  other  words,  tho  doctrine  that  all  men  are  presumed  to  know  tho 
law  does  not  apply  in  this  class  of  cases ;  that  while,  as  a  general  rule, 
ignorance  of  the  law  excuses  no  ono,  in  this  case  it  does.  He  must 
have  actual  knowledge  both  of  the  existence  of  the  disqualifying  fact 
and  the  disqualifying  law. 

In  the  case  of  The  Queen  vs.  The  Mayor,  Aldermen,  and  Burgesses  of 
Tcwksbury,  reported  in  English  Law  Reports  in  1868,  the  court  held 
"  that  the  mere  Knowledge  OH  the  part  of  the  electors  who  voted  for  I>.  tlmt 
he  was  mayor  and  returning  officer  did  not  amount  to  knoirlcdf/e  thai  lie  ira* 
disqualified  in  point  of  law  as  a  candidate;  and  therefore  their  rotes  were 
not  thrown  away  so  as  to  make  the  election,  fall  on  the  fifth  candidate." 

The  reason  of  the  rule  as  held  formerly  in  England  is  given  iu  a 
few  words  iu  Southwark  on  Elections,  page  251),  as  follows: 

That  it  is  willful  obstinacy  and  misconduct  in  a  voter  to  give  his  vote  for  a  person 
laboring  under  a  known  incompetency. 

Clarke  on  Election  Contests,  page  156,  in  referring  to  the  English 
rule,  says : 

Whenever  a  candidate  is  disqualified  from  sitting  in  Parliament,  and  notice 
thereof  is  publicly  given  to  the  electors,  all  votes  given  to  such  disqualified  candidate 
will  bo  considered  as  thrown  away» 

Iu  King  vs.  Hawkins,  10  East,  210,  Lord  Ellenborough  said  the 
election  of  a  person  ineligible  was  void  when  tho  votes  were  cast 
after  notice  of  ineligibility. 

Heywood  on  County  Elections  says,  page  535 : 

If  before  the  election  comes  on,  or  a  majority  has  polled,  sufficient  notice  has 
been  publicly  given  of  his  disability,  the  unsuccessful  candidate  next,  to  him  on  tho 
poll  must  ultimately  bo  tho  sitting  member. 

Male  on  Elections,  page  336,  states  the  English  rule  thus : 

If  an  election  is  made  of  a  person,  or  persons  ineligible,  such  election  is  void 
where  that  ineli(jibility  is  clear  and  pointed  out  to  the  electors  at  the  poll. 

The  English  rule,  as  above  stated,  is  the  one  laid  down  in  the  cel 
ebrated  case  of  Wilkes  vs.  Luttrell.  It  is  believed,  however,  that 
during  late  years  tho  rule  in  England,  as  above  stated,  has  under 
gone  a  change  in  the  direction  of  the  American  doctrine.  In  a  recent 
case  decided  in  England,  The.  Queen  rs.  Mayor,  3  Law  Reports, 
Queen's  Bench,  629,  the  rule  as  to  knowledge  of  the  disqualifying  law 
being  necessary  in  England  was  stated  strongly,  as  follows : 

After  holding  that  though  the  elector  had  actual  notice  of  tho  fact  which  had 
been  adjudged  by  the  courts  to  disqualify,  yet  knowledge  or  notice  in  tho  elector 
of  the  adjudication  could  not  be  presumed,' 

It  further  said : 

It  is  not  enough  to  show  that  the  voter  know  the  fact  only  ;  but  it  is  necessary 
to  show  sufficient  to  raise  a  reasonable  inference  that  ho  knew  that  the  fact 
amounted  to  a  disqualification. 

In  the  United  States  the  general  current  of  authorities  sustains  tho 
doctrine  that  the  ineligibility  of  the  majority  candidate  does  not  elect 
tho  minority  candidate,  and  this  without  reference  to  the  question  as 
to  whether  voters  knew  of  the  incligibilit.y  of  the  candidate  for  whom 
they  voted,  and  herein  is  the  distinction  between  the  English  and 
American  authorities.  In  England  actual  knowledge  of  the  existence 
of  a  fact  and  actual  knowledge  of  the  disqualifying  consequence  fol 
lowing  from  the  existence  of  such  fact,  it  has  been  held  in  certain 
cases,  elect  the  minority  candidate.  In  America  the  doctrine  is  that 
the  minority  candidate  is  not  elected  under  any  state  of  circumstances. 

This  doctrine  has  been  fully  declared  by  the  Senate  of  the  United 
States  in  several  adjudications  and  by  the  House  of  Eepreseiital  ives, 
as  well  as  by  the  decision  of  tho  supreme  courts  of  many  of  (lie 
States.  The  only  case  that  has  been  produced  which  would  give  even 
a  shadow  of  excuse  or  pretense  for  the  claims  of  Cronin, the  minority 
candidate  in  Oregon,  to  have  been  elected,  is  the  case  of  Guliek  **. 
New,  14  Indiana  Reports.  That  case  has  been  expressly  referral  to 
and  overruled  in  argument  in  the  Senate  and  House  of  Representa 
tives,  as  well  as  by  the  decisions  of  the  courts  of  some  of  the  States. 
By  tho  law  of  Indiana  the  mayor  of  the  city  of  Indianapolis  had  ju 
dicial  power  in  certain  classes  of  criminal  cases  co-extensive  with  the 
county  in  which  the  city  is  situated,  and  by  tho  constitution  of  tho 
State 'he  was  not  eligible  to  be  elected  to  any  other  office  during  the 
period  for  which  he  was  elected  as  mayor.  Before  the  expiration  of 
this  period  Guliek,  the  mayor,  was  elected  sheriff  of  the  county  of 
Marion,  and  the  question  «rose  as  to  his  eligibility.  The  supreme 
court  of  Indiana,  held  that  the  voters  in  the  county,  inasmuch  as  tho 
criminal  jurisdiction  of  tho  mayor  extended  all  over  the  county, 
must  take  constructive  notice  of  his  ineligibility. 


ELECTORAL  COMMISSION. 


135 


The  decision  was  unsupported  by  any  authority  whatever,  and  ap- 
plyiug  it  iu  this  case  in  its  full  length  and  breadth  it  would  furnish 
no  excuse  for  the  action  of  Governor  Grover. 

Dr.  Watts,  the  candidate  for  elector  on  the  republican  ticket,  was 
postmaster  at  a  little  town,  La  Fayette,  iu  Yam  Hill  County.  There 
were  eleven  other  post-offices  in  the  county  and  one  within  two  miles 
of  La  Fayette,  and  the  testimony  shows  that  the  whole  number  of 
voters  receiving  their  mail-matter  at  La  Fayette  did  not  exceed  one 
hundred,  while  the  entire  majority  of  Dr.  Watts  in  the  State  was  1,049. 
If  it  should  be  held  that  the  voters  within  the  mail  delivery  of  Dr. 
Watts  must  not  only  have  taken  notice  of  the  fact  that  he  was  post 
master,  but  also  of  his  consequent  iueligibOity  under  the  Constitu 
tion,  and  the  votes  of  such  persons  should  be  deducted  from  his  ma 
jority,  it  would  still  leave  him  over  nine  hundred  mnjority  among 
the  voters  who  could  not  be  presumed  to  have  even  constructive 
knowledge  of  his  character  as  a  postmaster  and  of  his  consequent  in- 
eligibility. 

In  America  the  settled  doctrine  of  the  law  as  established  not  only 
by  the  judicial  tribunals  but  by  both  Houses  of  Congress  is  that  vot 
ing  for  an  ineligible  candidate,  even  with  full  knowledge  of  the  dis 
qualifying  fact  and  its  legal  consequences,  does  not  elect  the  minority 
candidate  where  either  a  majority  or  plurality  of  votes  is  required 
to  elect. 

In  McCrary's  American  Law  of  Elections,  page  1G7,  the  following  is 
stated  on  this  subject : 

"Wo  conie  now  to  a  question  which  has  been  much  discussed  and  upon  which  the 
authorities  are  somewhat  conflicting  ;  it  is  this:  Suppose  the  candidate  who  lias 
received  the  highest  number  of  votes  for  nu  office  is  ineligible,  and  that  his  iueli- 
gibility  was  known  to  those  who  voted  for  him  before  they  cast  their  votes,  are 
the  voles  thus  cast  for  him  to  he  thrown  out  of  the  count  ana  treated  as  never  cast, 
and  should  the  minority  candidate,  if  eligible,  be  declared  elected  in  such  a  ca.so  ? 
No  doubt  the  English  rule  is  that  where  the  majority  candidate  is  ineligible,  and 
sufficient  notice  of  his  iueligibility  has  been  given,  the  person  receiving  the  next 
highest  number  of  votes  being  eligible  must  be  declared  elected.  Great  stress  is 
laid  upon  the  fact  of  notice  bavins  been  given,  and  the  reason  of  the  English  rule 
is  said  to  be  "  that  it  is  willfulobstinacy  and  misconduct  in  a  voter  to  give  his  vote 
for  a  person  laboring  under  a  kiiown  incompetoucy."  (Southwark  on  Elections, 
pnge  '259. )  An  examination  of  the  English  cases  will  show  that  in  somoof  them  the 
election  was  declared  void  and  sent  back  to  the  people  on  the  ground  that  there 
was  not  sufficient  notice  of  the  incapacity  of  the  successful  candidate;  while  in 
others  the  minority  candidate  was  declared  elected  on  the  ground  that  duo  notice 
of  the  ineligibility  of  the  persons  receiving  the  majority  was  given.  The  follow 
ing  are  some  of  the  principal  English  authorities  upon  the  subject :  Hex  tw.  Mon 
day,  Cowp.,  537;  Rex  vs.  Coo,  Hey  wood,  36.1 ;  Rex  vs.  Bissell,  ibid,  3oO;  Rex  vs. 
1'a'rry,  14  East.,  549;  Rogina  vs.  Cookes,  28  Eng.  L.  and  Eq.,  304,  Q.  B.,  406;  Key- 
wood  on  County  Elections,  535 ;  Male  on  Elections,  5'iO  ;  King  vs.  Hawkins,  10 
East.,  210 ;  Clari'dgo  vs.  Evelyn.  5  B.  and  A.  8 ;  Clarke  on  Election  Committees,  page 
150 ;  Southwark  on  Elections,  page  259. 

Mr.  McCrary  then  cites  numerous  authorities  in  support  of  the  po 
sition  assumed  by  him  to  be  the  rule  in  this  country,  iu  the  following 

language  : 

Thus,  in  Commonwealth  vs.  duly,  56  Pa.,  St.  270,  the  supremo  court  of  Pennsyl 
vania  held  that  whore  in  an  election  for  sheriff  a  majority  of  the  votes  are  cast  for 
a  disqualified  person,  the  next  in  vote  is  not  to  be  returned  as  elected  ;  and  the  su 
preme  court  of  California,  in  Saunders  vs.  Haynes,  13  Cal ,  145,  holds  the  same 
doctrine,  and  enforces  it  by  cogent  reasoning.  And  iu  Wisconsin  we  have  the 
same  ruling  in  State  vs.  Giles,  1  Chand.,  112, 'and  in  State  vs.  Smith,  14  Wis.,  437, 
and  see  opinion  of  judges,  32  Maine,  597  ;  State  vs.  Boal,  4G  Mo.,  528  ;  Gushing  Elec 
tion  Gas.,  496,  576,  and  see  State  vs.  Anderson,  1  Cox,  K.  J.,  318  ;  People  vs.  Clute, 
5!)  N.  T.  But  in  Indiana  the  doctrine  of  the  English  authorities  has  been  followed. 
(Gulick  vs.  New,  14  Intl.,  93.) 

And  then  in  section  234  the  whole  matter  is  summed  up  by  Mr. 
McCrary  as  follows : 

Thus  it  will  be  seen  that  the  weight  of  authority  in  this  country  is  decidedly 
agaiust  the  adoption  hero  of  the  English  doctrine.  And  we  think  that 'sound  policy, 
as  well  as  reason  and  authority,  forbids  the  adoption  of  that  doctrine  in  this  coun 
try.  It  is  a  fundamental  idea  with  us  that  the  majority  shall  rule,  and  that  a  ma 
jority  or  at  least  a  plurality  shall  bo  required  to  elect  a  person  to  office  by  popular 
vote.  An  election  with  us  is  the  deliberate  choice  of  a  majority  or  plurality  of  the 
electors.  Any  doctrine  which  opens  the  way  for  the  minority  rule,  in  any  case,  is 
anti-republican  and  anti-American.  The  English  rule,  if  adhered  to,  would  iu 
many  cases  result  in  compelling  very  large  majorities  to  submit  to  very  small  mi 
norities,  as  an  ineligible  person  may  receive,  and  in  many  cases  has  'received,  a 
great  majority  of  the  votes. 

In  the  case  of  the  Commonwealth  vs.  duly,  56  Pennsylvania  State 
Reports,  which  was  a  case  wherein  at  an  election  for  sheriff'  in  a  cer 
tain  county  of  Pennsylvania  a  person  receiving  the  majority  of  votes 
was  ineligible  under  the  constitution  of  that  State,  Justice  STRONG, 
now  of  the  Supreme  Court  of  the  United  States  and  present  member 
of  this  Commission,  then  on  the  supreme  bench  of  Pennsylvania,  in 
delivering  the  opinion  of  the  court  said: 

Now,  on  this  showing,  what  interest  has  the  relator  in  the  question  he  attempts 
to  raise  ?  What  more  than  any  inhabitant  of  Allegheny  County,  or  of  the  Com 
monwealth  ?  He  was  a  rival  candidate  at  the  election  for  the  office,  but  he  was  de 
feated,  with  a  majority  against  him  of  six  thousand  nine  hundred  and  ninety. 
Doubtless,  if  his  successful  rival  is  incapable  of  holding  the  office  on  account  of 
the  constitutional  provisions  "  that  no  person  shall  be  twice  chosen  or  appointed 
sheriff  in  any  term  of  six  years,"  or  for  any  other  reason,  and  that  incapacity  en 
titles  him,  the  relator,  to  the  office,  he  has  an  interest.  lie  certainly  can  have  none 


_ 

holding  an  office  are  not  nullities.  They  cannot  be  rejected  by  the  inspectors,  or 
thrown  out  of  the  count  by  the  return  judges.  The  disqualified  person  is  a  person 
still,  and  every  vote  thrown  for  him  is  formal.  Even  in  England  it  has  been  held 
that  votes  for  a  disqualified  person  are  not  lost  or  thrown  away  so  as  to  justify  the 
presiding  officers  in  returning  as  elected  another  candidate  having  a  less  number  of 
votes,  and  if  they  do  so  a  quo  warranto  information  will  bo  granted  against  the  per 
son  so  declared  to  bo  elected,  on  his  accepting  the  office.  (See  Cole  on  Quo  Warranto 
Informations,  141,  142:  Regina  vs.  Hioias,  7  Ad.  &  E.,  960;  3  Nov.  &  Perry,  lt'4 ; 
Rex  w.  Bridge,  1  M.  &  S.,  7C  ) 


Under  institutions  such  as  ours  are  there  is  even  greater  reason  for  holding  tllirt 


by  the  Senate  of  the  United  States  disqualified  because  he  had  not  been  a  citizen 
of  the  United  States  nine  years,  and  his  election  was  declared  void  for  that,  reason. 
but  the  scat  was  not  given  to  his  competitor.  Nobody  supposed  the  minority  can 
didate  was  elected.  There  have  been  several  other  cases  of  contested  elections  iu 
which  the  successful  candidates  were  decided  to  have  been  disqualified,  and  di-nied 
their  offices. 

John  Bailey's  case  is  one  of  them.  He  was  elected  to  Congress  from  Massachu 
setts  and  refused  his  seat  in  1824.  But  neither  in  his  case,  nor  in  any  other  wilh 
which  we  are  acquainted,  were  the  votes  given  to  the  successful  candidate  treated 
as  nullities,  so  as  to  entitle  one  who  had  received  a  less  number  of  votes  to  Iho 
office.  There  is  a  class  of  cases  in  England  apparently,  but  not  really,  asserting 
otherwise.  The  earliest  of  them  are  referred  to  by  Mr.'  Butler  in  his  argument  in 
Rex  rs.  Monday,  Cooper,  530.  They  were  followed  by  Rex  vs.  Hawkins,  10  East..  211. 
and  Rex  vs.  Parry,  14  Id.,  549.  In  these  cases  it  is  said  that  if  sufficient  notice  is 
given  of  a  candidate's  disqualification,  and  notice  that  votes  given  for  him  will  bo 
thrown  away,  votes  subsequently  cast  for  him  are  lost,  and  another  candidate  may 
be  returned  as  elected  if  ho  has  a  majority  of  good  votes  after  those  so  lost  are  de 
ducted.  There  is  more  reason  for  this  iu  "England,  where  the  vote  is  viva  voce  and 
the  elective  franchise  belongs  to  but  few,  thuii  here,  where  the  vote  is  by  ballot  and 
the  franchise  well  nigh  universal.  In  those  cases  the  notice  was  brought  homo  to 
almost  every  Toter,  and  the  number  of  electors  were  never  greater  than  three  hun 
dred,  and  generally  not  more  than  two  dozen.  Besides,  a  man  who  votes  for  a  per 
son  with  knowledge  that  the  person  is  incompetent  to  hold  the  office  and  that  his 
vote  cannot  therefore  Uo  effective,  that  it  will  be  thrown  away,  may  very  proper!  v 
be  considered  as  intending  td  vote  a  blank,  or  throw  away  his  vote. 

In  the  supreme  court  of  the  State  of  California,  in  the  case  of  Saun 
ders  vs.  Huynes,  i;;  California  Keports,  Justice  Baldwin,  in  announc 
ing  the  opinion  of  the  court,  said  : 

It  will  bo  observed  that  the  point  of  this  defense  is,  that  the  votA  cast  for  treas 
uror,  supposing  he  received  the  highest  number,  were  nullities,  because  of  his  as 
sumed  inc*  'gibilily.  But  wo  do  not  so  consider.  Although  some  old  eases  may  ln> 
found  affirming  tliis  doctrine,  wo  think  that  the  better  opinion  at  this  day  is  that 
it  is  not  correct. 

The  celebrated  controversy  in  the  British  Parliament  between  Wilkes  and  Lut- 
trell  has  given  lise  to  much  discussion,  and  the  opinions  of  jurists  and  statesmen 
have  been  somewhat  divided.  But  the  prevailing  opinion,  English  and  America;), 
of  modern  times,  seems  to  bo  against  the  precedent  established  in  that  case.  In 
the  case  of  Whitman  and  Malonev,  (10  Cal.,)  Mr.  Justice  FIELD  clearly  intimates 
his  opinion  in  favor  of  the  principle  that  the  votes  given  for  an  ineligible  candi 
date  are  not  to  be  counted  for  the  next  highest  candidate  on  the  poll  In  the  State 
of  Wisconsin  vs.  Giles,  (1  Chandler,  page  117,)  the  same  doctrine  is  held,  and  it  is 
enforced  by  the  judges  of  the  supreme,  court  of  Maine  iu  their  opinion,  to  ho  found 
in  38  Maine  Report,  page  597. 

Our  legislative  precedents  seem  to  be  the  same  way.  Upon  principle  wo  think 
the  law  should  so  be  ruled.  An  election  is  the  deliberate  choice  of  a  majority  or 
plurality  of  the  electoral  body.  This  is  evidenced  by  the  votes  of  the  electors.  But 
if  a  majority  of  those-  voting,  by  mistake  of  law  or  fact,  happen  to  cast  their  votes 
upon  an  ineligible  candidate,  it  by  no  means  follows  that  the  next  to  him  on  the 
poll  should  receive  the  office.  If  this  be  so,  a  candidate  might  be  elected  who  re 
ceived  only  a  small  portion  of  the  votes  and  who  never  could  have  been  elected  at 
all  but  for  this  mistake.  The  votes  are  not  less  legal  votes  because  given  to  a  per 
son  they  cannot  be  counted  ;  and  the  person  who  is  the  next  to  him  on  tho  list  of 
candidates  does  not  receive  a  plurality  of  votes  because  his  competitor  was  ineli 
gible.  The  votes  cast  for  tho  latter,  it  is  true,  cannot  be  counted  lor  him  ;  but  that 
is  no  reason  why  they  should,  in  effect,  be  counted  for  the  former,  who  possibly 
could  never  have  received  them.  It  is  fairer',  more  just,  and  more  consistent  with 
the  theory  of  our  iiwtitutious  to  hold  the  votes  so  cast  as  merely  ineffectual  forthn 
purpose  of  an  election  than  to  give  them  the  effect  of  disappointing  the  popular  will 
and  electing  to  office  a  man  whose  pretensions  the  people  had  desif/ned  to  reject., 

The  supreme  court  of  California,  with  a  democratic  chief-justice, 
(Mr.  Wallace,)  no  longer  ago  than  the  13th  of  last  November,  in  the 
case  of  Crawford  vs.  Dunbar,  held  to  the  same  doctrine.  The  chief- 
justice,  in  announcing  the  opinion  of  the  court,  refers  with  unquali 
fied  approval  to  the  doctrine  laid  down  in  13  California,  that  the 
ineligibility  of  the  person  receiving  the  highest  number  of  votes  can 
not  operate  to  elect  the  minority  candidate.  The  facts  and  conclusions 
of  law  in  this  recent  case,  as  found  and  enumerated  by  the  supreme 
court  of  California  in  their  opinion,  are  as  follows  : 

1.  The  office  of  inspector  of  customs  at  Stockton,  in  the  San  Francisco  collection 
district,  to  which  there  is  annexed  a  salary  of  $1,000  per  annum,  is  a  lucrative  office 
within  the  meaning  of  section  21.  article  4  of  the  const  itutiou  of  the  State,  and  if  the 
defendant,  Dunbar,  held  that  office  in  September,  1875,  then  he  was  ineligible  to  the 
office  of  sch<  ol  superintendent  in  the  county  of  San  Joan,  it  in,  which  is  a  "  civil  office 
of  profit  under  tho  State;"  the  salary  thereof  being  81.500  per  annum. 

2.  It  is  settled  here  that  a  mere  de  facto  incumbency  of  the  inspectorship  of  cus 
toms  would  not  render  Dunbar  ineligible  to  i  he  office  of  school  superintendent  un 
der  t he  disqualifying  clause  of  tho  constitution  referred  to.     Ho  must  have  been 
inspector  de  jure  in  order  to  work  that  result.     (People  ex  rel.  Attorney-General 
vs.  Turner,  20  Cal.,  142.) 

3.  The  case  made  upon  tho  part  of  tho  contestant  established  that,  Dunbar,  on  tho 
first  Wednesday  of  September,  1875,  was  dejure  as  well  as  tie  facto  inspector-  of  cus 
toms  at  Stockton.    It  appeared  from  the  evidence  adduced  by  tho  contestants  that 
upon  the  nomination  of  the  collector  of  customs,  and  with  the  approval  of  the  Sec 
retary  of  the  Treasury,  Dunbar  had  been  appointed  such  inspector  of  customs  and 
had  taken  the  oaths,  two  in  number,  prescribed  by  law,  and  had  entered  upon  tho 
discharge  of  his  official  duties,  pursuant  to  his  appointment.     His  appointment  and 
the  taking  by  him  of  the  prescribed  oaths  of  office,  the  last  of  them  on  the  6th  day 
of  April,  1875,  was  established  by  the  records  thereof  in  due  form,  which,  or  copies 
of  which,  duly  certified,  were  produced  from  their  proper  custodian,  and  it  was 
proven  and  found  by  tho  court  below  to  bo  the  fact,  that,  pursuant  to  his  appoint 
ment,  Duubar,  thereafter  and  on  or  about  tho  10th  day  of  April,  1875,  took  posses 
sion  of  all  the  public  property  belonging  to  tho  office  of  inspector  of  customs  of 
Stockton,  theretofore  under  the  control  of  his  predecessor,  and  then  and  there  en 
tered  upon  tho  discharge  of  tho  duties  pertaining  to  said  office,  and  that  he  had  not  • 
resigned  nor  been  removed  therefrom. 

5.  It  furth!  r  appears  by  the  findings  that  at  tho  regular  election  in  question,  the 
respondent,  Dunbar,  received  1,70-3  votes,  the  contestant  Crawford  (the  next  highest 
vote)  1,162  votes,  -and  Jen\iy  Phelps  830  votes. 

Upon  these  facts  the  contestant  claims  that  ho  is  entitled  to  the  office  and  should 
have  judgment  hero  to  that  effect.  This  claim  is  in  argument  put  upon  the  ground 
that  Duubar,  being  ineligible,  tho  votes  cast  for  him,  though  amounting  in  number 


136 


ELECTORAL   COMMISSION. 


In  that'caso  the  court  said— 

And  then  they  go  on  and  quote  the  portion  which  the  Senator  from 
Indiana  has  read  from  their  opinion,  and  they  conclude  by  saying: 

It  results  from  this  view  that  the  judgment  of  the  court  below  must  bo  re 
versed,  and  the  cause  remanded  with  directions  to  render  judgment  vacating  the 
oilice. 

In  the  case  of  The  People  ex  rel.  Furman  et  al.  vs.  Cluto,  No.  50,  New 
York  Reports,  the  authorities,  English  and  American,  are  reviewed  and 
the  doctrine  clearly  and  forcibly  stated  in  the  following  extract  from 
the  opinion : 

In  the  multitude  of  cases  in  which  the  question  has  arisen,  we  think  that  tip  to 
this  point  there  is  no  essential  difference  of  result.  All  agree  that  there  must  be 
prior  notice  to,  or  knowledge  in  the  elector  of  fact  and  law,  to  make  his  vote  so 
ineffectual  as  that  it  is  thrown  away.  But  some  say  that  if  there  be  a  public  law 
declaratory  that  the  existence  of  a  certain  fact  creates  ineligibility  in  the  candidate, 
the  elector  haviii'Miotico  of  the  fact  is  conclusively  presumed  in  law  to  have  knowl- 
ed"o  of  the  legal  rule  and  to  bo  deemed  to  have  voted  in  persistent  disregard  of  it. 
Others  deny  t hut  Hie  maxim  "  In  norantia,  juris  exeuset  neminem.  "  (even  with  the 
clause  of  it,  "  quod  (inin</u.e  xcirc  tenetur,  "  not  often  quoted  and  of  which  we  are  re 
minded  by  the  very  thorough  brief  ot'thelearned  counsel  for  tho  relator,)  can  be  car 
ried  to  that  length' and  insist  that  there  does  not  apply  to  this  question  the  rule  that 
all  citizens  must  be  held  to  know  the  general  laws  of  the  land  and  tho  special  law 
affecting  their  own  locality. 

That  maxim,  in  its  proper  application,  goes  to  the  length  of  denying  to  tho  ot- 
fendor  against  the  criminal  law  a  justification  in  his  ignorance  thereof  ;  or  to  one 
liable  for  a  breach  of  contract,  or  for  civil  tort,  the  excuse  that  ho  did  not  know  of 
the  rule  which  fixes  his  liability.  It  finds  its  proper  application  when  it  says  to 
tho  elector,  who,  ignorant  of  the  law  which  disqualifies,  has  voted  for  a  candidate 
ineligible  "Your  ignorance  will  not  excuse  you  and  save  your  vote;_  the  law  must 


he  knows  that  it  cannot  be  counted,  as  to  manifest  a  purpose  to  waste  it.  Tho 
maxim  itself  concedes  that  there  may  be  a  lack  of  actual  knowledge  of  tho  law. 
For  it  is  ignorance  of  it  which  shall  not  excuse.  Then  the  knowledge  of  the  law 
to  which  each  oiieis  hold  is  a  theoretical  knowledge ;  and  the  doctrine  urged  upon 
us  would  carry  a,  theoretical  knowledge  of  tho  statute  further  than  goes  the  statute 
itself.  The  statute  but  makes  ineffectual  to  elect  tho  votes  given  for  one  disquali 
fied.  The  doctrine  would  make  knowledge  not  actual,  of  that  statute  thus  limited, 
waste  the  votes  of  tho  majority  and  bring  about  the  choice  to  office  by  the  votes 
of  a  minority.  "We  are  not  cited  to  nor  do  we  find  any  decision  to  that  extent  of 
any  court  in  this  State.  Tho  industrious  research  of  the  learned  counsel  for  the 
rel'ator  has  found  some  from  courts  in  sister  States.  Gulich  vs.  New  (14  Indiana,  97) 
is  to  that  effect.  Carson  vs.  MePhetridge  (15  id.,  331)  follows  the  last-cited  case, 
llatcheson  vs.  Tilden  (4  liar,  and  McH.,  279)  was  a  case  at  nisi  prius,  and  is  to  that 
effect.  With  respect  for  these  authorities,  wo  are  obligeil  to  say  that  they  are  not 
sustained  by  reasoning  which  draws  with  it  our  judgment.  Commonwealth  vs. 
liead  (2  Ash'mead,  201)  is  also  cited.  But  that  was  a  case  of  a  board  of  twenty, 
assembling  in  a  room  to  elect  a  county  treasurer.  On  motion  being  made  to  elect 
viva  voce,  a  protest  was  made  that  the  law  under  which  they  wore  acting  prescribed 
a  vote  by  ballot.  Thus,  actual  notice  of  law  and  fact  was  brought  directly  to  each 
elector  before  voting.  Nineteen  persisted  in  voting  viva  voce.  These  were  held  to 
be  wasted  votes.  One  voted  by  ballot ;  and  his  vote  was  held  to  prevail,  and  the 
person  ho  voted  for  to  be  elected.  Commonwealth  vs.  Cluley  (56  Pennsylvania 
State  Reports,  270)  is  also  cited.  But  the  language  of  the  court  there  is :  "  The 
votes  cast  at  an  election  for  a  person  who  is  disqualified  from  holding  an  office  are 
not  nullities.  They  cannot  bo  rejected  by  the  inspectors  or  thrown  out  of  the 
count  by  the  return  judges.  The  disqualified  person  is  a  person  still,  and  every 
vote  thrown  for  him  is  formal."  And  that  was  tho  case  of  one  who  was  ineligible 
by  reason  of  having  held  the  office  of  sheriff  of  a  county,  and  became  a  candidate 
in  tho  same  county  for  the  same  office  before  the  lapse  of  time  prescribed  by  the' 
constitution ;  a  case  in  its  facts  quite  like  this  in  hand. 

Tho  relator  also  cites  many  instances  of  the  action  of  legislative  bodies  and  their 
committees.    As  to  these,  a  respectable  authority  on  these  questions  has  remarked 


nations,  as  it  is  difficult  to  arrive  at  the  exact  principle  upon  which  the  votes  of  so 
many  as  constitute  a  legislative  body  are  put.  Besides  that,  they  are  not  uniform, 
but  quite  diverse  in  their  results,  as  appears  from  the  citations  of  the  counsel  of 
the  relator,  and  the  instances  noted  in  56  Pennsylvania  State  Reports,  (supra.) 

We  have  consulted  many  of  the  authorities  cited  to  us  from  the  English  books, 
and  in  them,  it  will  be  found,  we  think,  that  where  it  was  held  that  votes  for  an  in 
eligible  person  would  bo  treated  as  thrown  away,  it  was  not  extended  beyond  cases 
in  which  there  was  actual  notice  of  fact  and  of  law  to  the  voters  before  their  votes 
were  cast. 

And  there  are  American  authorities  which  hold  that  if  a  majority  of  those  voting, 

it'byi) 


Staters.  Smith,  14  Wisconsin.  497.)  And  in  Dillon  on  Municipal  Corporations,  (page 
176,  section  135.)  it  is  stated  that  unless  the  votes  for  an  ineligible  person  are  ex 
pressly  declared  to  be  void,  the  effect  of  such  person  receiving  a  majority  of  the 
votes  cast  is,  according  to  the  weight  of  American  authority  and  the  reason  of  tho 
matter,  (in  view  of  our  mode  of  election,  without  previous  binding  nominations,  by 
secret  ballot,  leaving  each  elector  to  vote  for  whomsoever  ho  pleases,)  that  a  new 
election  must  be  bad,  and  not  to  give  the  office  to  tho  qualified  person  having  tho 
next  highest  number  of  votes.  And  this  view  is  sustained  by  a  preponderance  of 
tho  authorities  cited  by  the  author  in  tho  foot-note,  some  of  which  are  cited  above. 
We  think  that  the  rule  is  this  :  The  existence  of  the  fact  which  disqualifies  and 
of  the  law  which  makes  that  fact  operate  to  disqualify  must  be  brought  home  so 
closely  and  so  clearly  to  the  knowledge  or  notice  of  the  elector  as  that  to  give  his 
vote  therewith  indicates  an  intent  to  waste  it. 

The  following  letter,  read  during  the  debate  in  the  Senate  over  the 

•  Oregon  electoral  controversy,  will  indicate  the  opinion  of  tho  Hon. 

Jeremiah  S.  Black,  late  Attorney-General  under  President  Buchanan, 

and  present  counsel  of  the  democracy  of  the  nation  upon  this  question. 

It  reads  as  follows : 

HOLUDAYSISURGII,  PENNSYLVANIA,  December  9,  1876. 

DEAU  SIR  :  At  the  October  election  of  1846,  Ephraim  Galbreath  was  tho  whig  can 
didate  tor  tho  office  of  recorder  of  Blair  County,  and  died  on  the  morning  of  the 


election  before  the  opening  of  tho  polls.  It  was  found  by  tho  return  judges  that  a 
majority  of  the  votes  for  recorder  were  cast  for  Galbreath,  and  at  the.  October  term 
of  the  court  of  common  pleas,  held  by  Hon.  Jeremiah  S.  Black,  then  president 
judge,  the  democratic  candidate,  Samuel  Smith,  appeared  and  asked  to  bo  qualified 
as  recorder,  on  the  ground  that  the  votes  cast  for  Galbreath,  having  been  given  for 
a  dead  man,  should  bo  disregarded,  and  tho  votes  given  for  the  claimant  only  should 
bo  counted. 

Judge  Black  referred  to  the  case  of  Mr.  Wilkes,  in  tho  British  Parliament,  and  de 
nounced  the  seating  of  Luttrell  as  a  high-handed  outrage.  He  followed  tho  lino  of 
argument  of  those  who  opposed  tho  seating  of  Luttrell  and  declared  emphatically 
that  two  things  were  settled  by  the  election  in  question  :  first,  that  tho  people  did 
want  Galbreath ;  secondly,  that  they  did  not  want  Smith. 

The  result  was  that  tho  democratic  governor,  Shuiik,  I  think,  filled  the  vacancy 
by  the  appointment  of  John  M.  Gibbony. 
Truly  yours, 

SAM'L  S.  BLAIR. 

Hon.  SIMON  CAMERON. 

But  tho  rule  upon  this  subject  established  by  the  judicial  tribunals 
of  this  country  has  also  received  the  sanction  of  the  National  House 
of  Representatives  and  of  the  Senate  of  the  United  States  as  well. 
In  the  case  of  Samuel  E.  Smith  vs.  John  Young  Brown,  contestant  for 
a  seat  in  the  House  of  Representatives  in  1868,  from  the  second  dis 
trict  of  Kentucky,  the  doctrine  that  the  minority  candidate  is  elected 
when  tho  person  receiving  a  majority  of  the  votes  was  disqualified 
waa  repudiated.  In  that  case  Brown  received  8,922  votes ;  Smith, 
2,810.  Brown  was  ineligible,  and  Smith  claimed  that  he  for  that  rea 
son,  although  receiving  a  minority  of  the  votes,  was  elected.  In  the 
able  report  made  in  that  case  by  Mr.  Dawes  of  the  Election  Commit 
tee,  after  referring  to  the  English  doctrine,  as  above  stated,  tho  fol 
lowing  language  occurs,  2  Bartlett's  Digest  of  Election  Cases,  pages 
402  and  40:5: 

But  the  committee  do  not  find  any  such  law  regulating  elections  in  this  country 
in  either  branch  of  Congress,  or  in  any  State  Legislature,  as  far  as  they  have  been 
able  to  examine.  Their  attention  has  been  called  to  no  case,  and  it  was  not  claimed 
before  tho  committee  that,  as  yet,  this  rule  by  which  one  receiving  only  a  minority 
of  the  votes  actually  cast  had  been  adjudged  elected,  had  ever  been  applied  in  this 
country. 

On  tiie  other  hand,  there  have  been  many  cases  of  alleged  ineligibility  in  both 
branches  of  Congress  since  the  formation  of  tho  Government,  in  some  of  which 
seats  have  been  declared  vacant  on  that  ground,  and  in  which,  had  there  existed  in 
this  country  any  such  rule,  it  certainly  would  have  b&en  resorted  to.  Tho  very 
first  contested  election,  at  tho  first  session  of  the  First  Congress,  in  1789,  Ramsey  vx. 
Smith,  (1  Contested  Elections,  23,)  was  based  on  alleged  iueligibility.  Tho  case 
was  very  ably  and  elaborately  debated  by  Mr.  Madison  and  others,  and  neither 
Ramsey  nor  any  one  in  his  beljalf  claimed  for  a  moment  that  tho  iueligibility  of 
Smith,  who  had  received  a  majority  of  the  votes,  elected  Ramsey,  the  minority  can 
didate. 

In  1793  Albert  Gallatin  was  elected  a  Senator  from  Pennsylvania  before  he  had 
been  nine  years  a  citizen  of  the  United  States.  After  a  very  lengthy  discussion, 
(1  Contested  Elections,  851,)  his  seat  was  declared  vacant.  In  1807  '(1  Contested 
Elections,  224)  sundry  electors  of  Maryland  memorialized  Congress  to  declare 
vacant  tho  seat  of  Philip  Barton  Key,  one  of  the  Representatives  from  that  State 
because  of  alleged  ineligibility  arising  from  non-residence.  Much  time  of  tho 
House  was  occupied  in  deciding  the  case,  but  no  one  appeared  or  found  an  advo 
cate  as  a  minority  candidate.  In  1824,  on  a  like  memorial,  the  seat  of  John  Bailey, 
of  Massachusetts,  was  for  a  like  ineligibility  declared  vacant  and  a  new  election 
ordered,  without  a  claim  on  the  part  of  or  iii  behalf  of  a  minority  candidate.  In 
1849  the  seat  of  James  Shields,  a  Senator  from  Illinois,  was  declared  vacant  be 
cause  of  ineligibility,  and  the  right  of  a  minority  candidate  was  not  even  raised  ; 
and  Mr.  Brown  himself  was  elected  to  the  Thirty-sixth  Congress  before  ho  had 
reached  the  age  of  twenty-five  years,  and  therefore  when  ho  was  ineligible  and 
could  not  take  the  oath  of 'office.  At  the  opening  of  that  Congress  there  was  a  pro 
tracted  struggle  for  power,  and  tho  organizatioirof  the  House  was  not  effected  for 
several  montns,  after  failing  for  lack  of  a  single  vote.  There  was  a  very  strong 
temptation  in  every  quarter  to  secure  every  possible  vote;  yet  not  only  did  no  one 
appear  to  claim,  or  was  the  claimjnade,  in  bcha'f  of  any  one  as  a  minority  candi 
date  that  votes  cast  for  Mr.  Brown  wore  to  bo  thrown  away  and  himself  seated  in 
his  place;  but  at  the  second  session  Mr.  Brown,  having  become  of  age,  took  his 
seat  unchallenged,  by  force  of  the  very  votes  cast  for  him  when  he  was,  in  fact, 
ineligible.  In  very  many  other  cases  ineligibility  has  been  discussed  and  passed 
upon  without  ever  mooting  the  question  now  under  consideration. 

If  any  such  rule  as  is  now  claimed,  by  which  a  candidate  with  a  minority  of  tho 
votes  is  put  in  a  seat  vacated  for  ineligibility.  had  ever  obtained  foothold  in  this 
country,  this  uniform  cur  rent  of  decisions  could  not  have  run  undisturbed  through 
all  Congresses  from  1789  till  the  present  time. 

The  committee  are  of  opinion  that  a  recurrence  to  the  origin  and  history  of  this 
rule  in  tho  British  Parliament  will  show  the  impossibility  of  its  application  to  a  case 
in  tho  American  House  of  Representatives  Parliament  has  no  limitation  of  writ 
ten  constitution  upon  its  powers.  Si-  Edward  Coke  says  that  "  its  power  and  juris 
diction  are  so  transcendent  and  absolute  that  it  cannot  be  confined,  either  for  causes 
or  persons,  within  any  bounds." 

Blackstone  says  "  it  hath  sovereign  and  uncontrollable  authority  in  making,  con 
forming,  enlarging,  restraining,  abrogating,  repealing,  reviewing,' and  expounding 
of  laws  concerning  matters  of  all  possible  denominations,  ecclesiastical  or  temporal, 
civil,  military,  maritime,  or  criminal — this  being  the  place  where  that  absolute  des 
potic  power  which  must  in  all  governments  reside  somewhere  is  intrusted  by  tho 
constitutions  of  these  kingdoms." 

And  either  house  of  Pailiament  may,  upon  proof  of  any  crime,  a'ljudgo  any 
member  disabled  and  incapable  to  sit  as'a  member. — t  lilack.  Com.,  page  163. 

With  this  power,  called  by  some  omnipotent.  Parliament  grants  and  takes  away 
the  right  to  vote  at  its  pleasure,  erects  and  destroys  constituencies  when  and  where 
it  pleases. 

If  there  has  been  bribery  at  an  election,  it  sometimes  fines  and  sometimes  dis 
franchises  a  whole  constituency. 

Indeed,  it  is  not  tho  theory  of  the  British  government  that  power  originates  with 
the  people.  In  theory  the  right  of  the  monarch  is  a  divine  right,  nnd  he  has  gra 
ciously  conceded  from  time  to  time  to  tho  people  whatever  share  in  the  government 
they  possess. 

It  matters  not  to  the  theory  that  the  people,  in  point  of  fact,  wrenched  all  this 

Eower  out  of  the  hands  of  the  monarch ;  the  conclusion  is  very  easy  that  what,  has 
ecu  conceded  to  the  people  can,  at  pleasure,  be  modified,  limited,  or  oven  taken 
away. 

Parliament  has,  therefore,  exercised  its  omnipotence  with  an  exceedingly  lavish 
hand  in  the  matter  of  elections  to  its  own  body,  declaring  by  statute,  George  II, 
chapter  24,  that  "  the  right  of  voting  for  the  future  shall  be  allowed  according  to 
tho  last  determination  of  the  House  of  Commons  concerning  it,"  and,  34  George  III, 
chapter  83,  "  that  all  decisions  of  commit  tees  of  the  House  of  Commons  with  re 
spect  to  tho  light  of  election,  or  of  choosing  or  appointing  the  returning  officer, 


ELECTORAL  COMMISSION. 


137 


shall  be  final  and  conclusive  upon  the  subject  forever."    Thus  they  have  made  tho 
rule  here  contended  for  a  statute  of  tho  realm. 

There  certainly  can  be  no  need  of  argument  to  show  that  such  law  can  flud  110 
place  ill  our  system. 

In  concluding  this  subject,  which  received  the  sanction  of  the  House 
of  Representatives  by  a  very  large  majority,  Mr.  Dawes  employed  the 
following  language : 

The  committee  are  therefore  of  opinion  that  the  case  does  not  come  within  tho 
law  of  the  British  Parliament,  for  want  of  a  sufficient  notice  to  the  electors  at  the 
polls  of  an  ineligibility  known  and  fixed  by  law  ;  that  tho  law  of  tho  British  Par 
liament  in  this  particular  has  never  been  adopted  in  this  country,  and  is  wholly 
inapplicable  to  tho  system  of  government  under  which  wo  live 

Tho  will  of  tho  majority,  expressed  in  conformity  with  established  law,  is  the 
very  basis  on  which  rest  tho  foundations  of  our  institutions,  and  any  attempt  to 
substitute  therefor  the  will  of  a  minority  is  an  attack  upon  the  f  umlauiontal  prin 
ciples  of  the  government,  and  if  successful  will  prove  their  overthrow. 

In  the  case  of  Abbott  vs.  Vance,  of  North  Carolina,  fora  seat  in  the 
Senate  of  the  United  States,  the  question  was  elaborately  and  ably 
discussed,  as  has  been  already  shown,  and  the  decision  of  the  Senate 
was  against  the  doctrine  that  the  minority  candidate  is  elected  where 
the  person  receiving  a  majority  of  the  votes  was  ineligible,  and  in 
tho  report  of  the  committee  in  that  case,  which  received  the  able  ad 
vocacy  of  Senator  THURMAN  and  others,  and  which  was  adopted  by 
the  Senate,  it  was  distinctly  stated  that  the  fact  that  the  voters  have 
notice  of'the  ineligibility  of  the  candidate  at  the  time  they  cast  their 
votes  for  him  makes  no  difference.  The  concurrent  authority,  there 
fore,  of  tho  judicial  and  legislative  tribunals  of  this  country  is  in  di 
rect  contravention  of  the  position  assumed  by  Governor  Grover  in 
holding  that  Crouin,  the  minority  candidate,  was  elected  and  in  issu 
ing  him  a  certificate,  and  not  only  so  even  were  the  rule  as  formerly 
held  in  England  as  above  stated  to  obtain,  and  it  does  not,  it  would 
not  furnish  the  executive  authority  the  slightest  vindication  for  his 
action  in  this  regard  under  the  clearly  established  circumstances  of 
this  case. 

1  now  pass  to  the  question  as  to  whether  a  person  who  is  ineligible 
nuder  tho  Constitution  to  be  appointed  an  elector,  and  who  is  a  can 
didate  before  the  people,  receives  a  majority  of  all  the  votes  cast, 
and  is  so  officially  declared  by  the  proper  canvassing  officer,  and  who 
takes  his  seat  in  the  college  of  electors,  participates  in  its  proceed 
ings  and  casts  his  vote  for  President  and  Vice-President,  the  question 
of  his  ineligibility  not  having  prior  to  that  time  been  passed  upon 
by  any  competent  tribunal,  is  a  mere  usurper  or  an  officer  de  facto 
acting  under  color  of  title.  If  the  former,  it  must  be  conceded  that 
all  his  acts  are  absolutely  void.  If  the  latter,  as  I  insist  he  clearly 
is,  then  his  acts  are  not  void ;  and  while  his  right  to  act  might  have 
been  questioned  in  a  competent  tribunal  prior  to  the  meeting  of  the 
college  of  electors,  it  cannot  now  be  questioned  by  any  power  on 
earth. 

It  is  true  the  Constitution  of  the  United  States  declares  that  no 
person  holding  an  office  of  trust  or  profit  under  the  United  States 
shall  be  appointed  an  elector  ;  but  suppose  the  people  of  a  State,  in 
ignorance  of  both  the  disqualifying  fact  and  the  consequences  attach 
ing  to  it,  by  their  unanimous  votes  or  by  a  plurality,  as  they  may  in 
Oregon,  appoint  such  a  person  as  an  elector,  and  his  right  to  be  ap 
pointed  is  never  questioned  nor  adjudicated  upon  by  any  tribunal 
having  authority,  and  he  takes  his  seat  in  the  electoral  college  un 
challenged  and  participates  in  its  proceedings  and  casts,  the  vote  of 
his  people  and  party  for  President  and  Vice-President ;  the  record  of 
the  fact  is  made  up  and  transmitted  to  the  President  of  the  Senate, 
and  the  college  of  electors,  having  lived  its  time,  its  existence  expir 
ing  by  limitation  of  law,  dissolves  and  is  an  electoral  college  no  more 
forever,  nor  are  its  individual  members  any  longer  presidential  elect 
ors,  they  being  functus  officio. 

Can  it  be  said  in  such  a  case  that  the  vote  given  by  such  ineligible 
person  is  void  as  to  third  persons  and  the  public  ;  that  the  people, 
upon  the  one  hand,  who  have  acted  in  perfect  good  faith  and  in  en 
tire  ignorance  of  the  iueligibility  of  the  elector,  are  to  be  deprived 
of  their  voice  in  tho  selection  of  a  President  and  Vice-President,  and 
the  candidates  for  President  and  Vice-President,  on  the  other  hand, 
for  whom  such  vote  was  cast,  to  be  deprived  of  the  benefit  of  it  ? 

It  would  seem  that  such  a  doctrine  would  be  at  variance  Avith  the 
well-settled  principles  of  law  applicable  to  the  acts  of  de  facto  officers 
acting  under  color  of  title  in  their  relation  to  and  effect  upon  third 
persons  and  the  public.  McCrary,  in  his  American  Law  of  Elections, 
in  speaking  of  the  acts  of  officers  de  facto  acting  under  color  of  title, 
after  referring  to  several  authorities,  in  section  77  of  that  work  uses 
the  following  language : 

But  in  tho  case  of  Earnest's.  Adams,  which  arose  in  the  "Forty-first  Congress, 


(2  Bartlett,  7CO,)  tho  question  was  reviewed  at  length,  and  most  of  tho  cases  aris 
ing  both  in  Congress  and  tho  courts  were  cited  and  examined,  and  tho  conclusion 
was  reached  both  by  the  committee  and  by  tho  House  that  in  order  to  give  valid 
ity  to  tho  official  acts  of  an  officer  of  elections,  so  far  as  they  affect  third  parties 
and  the  public,  and  in  the  absence  of  fraud,  it  is  only  necessary  that  such  officer 
shall  have  color  of  authority.  It  is  sufficient  if  he  bo  an  officer  de  facto,  and  not  a 
mere  usurper. 

The  report  in  this  case,  after  quoting  from  numerous  decisions,  both  in  the  House 
and  in  tho  courts  of  thia  country,  continues  as  follows. 

Here  Mr.  McCrary  quotes  from  the  report  of  the  committee  of  the 
House  of  Representatives  in  the  case  of  Barnes  rs.  Adams,  which 
quotation  is  as  follows  : 

The  question  therefore,  regarded  in  the  light  of  precedent  or  authority  alone, 
would  stand  about  as  follows : 

The  judicial  decisions  are  all  to  tho  effect  that  tho  acts  of  officers  do  facto  so  far 


as  they  affect  third  parties  or  the  public,  in  tho  absence  of  fraud,  are  as  valid  aa 
those  of  an  officer  de  jure. 

Tho  decisions  of  this  House  are  to  some  extent  conflicting ;  the  point  has  seldom 
been  presented  upon  its  own  merits,  separated  from  questions  of  fraud  ;  and  in  the 
few  cases  where  this  seems  to  have  been  tho  case  tho  ruliijgs  are  not  harmonious. 

In  one  of  the  most  recent  and  important  cases,  (Blair  vs.  Barrett,)  in  which  there 
was  an  exceedingly  able  report,  the  doctrine  of  tlie  courts  aa  above  stated  is  rec 
ognized  and  indorsed. 

The  question  is  therefore  a  settled  question  in  the  courts  of  the  country,  and  is, 
so  far  as  this  House  is  concerned,  to  say  the  least  an  open  one. 

Your  committee  feel  constrained  to  adhere  to  tho  law  as  it  exists  and  is  admin 
istered  in  all  the  courts  of  the  country,  not  only  because  of  tho  very  great 
authority  by  which  it  is  supported,  but  for  the  further  reason,  as  stated  in  the 
outset,  that  we  believe  tho  rule  to  be  most  wise  and  salutary.  The  officers  of  elec 
tion  aro  chosen  of  necessity  from  among  all  classes  of  the  people ;  they  are  num 
bered  in  every  State  by  thousands ;  they  aro  often  men  unaccustomed  to  tho  form 
alities  of  legal  proceedings.  Omissions  and  mistakes  in  the  discharge  of  their 
ministerial  duties  are  almost  inevitable.  If  this  House  shall  establish  tho  doctrine 
that  an  election  is  void  because  an  officer  thereof  is  not  in  all  respects  duly  quali 
fied  or  because  the  same  is  not  conducted  strictly  according  to  law,  notwithstand 
ing  it  may  havo  been  a  fair  and  free  election,  the  result  will  bo  very  many  contests, 
and,  what  is  worse,  injustice  will  be  done  in  many  cases.  It  will  enable  those  who 
are  so  disposed,  to  seize  upon  more  technicality,  in  order  to  defeat  the  will  of  tho 
majority. 

Mr.  McCrary  concludes  his  reference  to  this  case  by  saying: 

Tho  report  of  tho  committee  in  this  case  was  adopted  by  tho  House  nem.  con., 
after  a  full  discussion,  (Congressional  Globe,  July,  1870,  pages  517!)  to  5193,)  and  tho 
doctrine  there  asserted  may  now  be  regarded  as  the  settled  law  of  the  House. 

Again,  in  section 79  of  the  same  work,  American  Law  of  Elections, 
tho  following  statement  of  the  rule  as  established  by  the  judicial 
courts  is  made : 

In  tho  courts  of  the  country  the  ruling  has  been  uniform,  and  the  validity  of  the 
acts  of  officers  of  election  who  are  such  defac.lo  only  so  far  as  they  affect  third  per 
sons  aud  tho  public  is  nowhere  questioned.  The  doctrine  that  whole  communities 
of  electors  may  be  disfranchised  for  the  time  being  and  a  minority  candidate 
forced  into  an  office  because  one  or  more  of  tho  judges  of  election  have  not  been 
duly  sworn,  or  were  not  duly  chosen,  or  do  not  possess  all  the  qualifications  requi 
site  for  the  office,  finds  no  support  in  tho  decisions  of  our  judicial  tribunals. 

In  the  case  of  The  People  vs.  Cook,  4  Selden  New  York  Reports,  tho 
court  says : 

The  neclect  of  the  officers  of  the  election  to  take  any  oath  would  not  have  viti 
ated  the  election.  It  might  have  subjected  those  officers  to  an  indictment  if  tho 
neglect  was  willful.  Tho  acts  of  public  officers  being  in  by  color  of  an  election  or 
appointment  are  void,  so  far  as  the  public  is  concerned. 

Again : 

An  officer  de  facto  is  one  who  comes  into  office  by  color  of  a  legal  appointment 
or  election.  His  acts  in  that  capacity  are  as  valid,  so  far  as  tho  public  is  concerned, 
as  tho  acts  of  an  officer  dejure.  His  acts  in  that  capacity  cannot  bo  inquired  into 
collaterally. 

In  the  case  of  Baird  vs.  Bank  of  Washington,  in  the  supreme  court 
of  Pennsylvania,  11  S.  &  R.,  414,  the  court  said : 

The  principle  of  colorable  election  holds  not  only  in  regard  to  tho  right  of  elect 
ing,  but  of  being  elected.  A  person  indisputably  ineligible,  may  bo  an  officer  de  facto 
by  color  of  election. 

This  case,  it  will  be  observed,  is  directly  in  point  upon  the  propo 
sition  that  a  person  "  indisputably  ineligible  "  may  become  an  officer 
de  facto  by  color  of  election,  and,  such  being  the  case,  it  follows, 
under  the  rule  as  it  exists  in  this  country,  as  before  stated,  that  his 
acts  as  such  officer  de  facto  are  valid  as  to  third  persons  and  the  pub 
lic.  Again,  in  the  case  of  Pritchell  et  al.  vs.  Tho  People,  in  the  su 
preme  court  of  the  State  of  Illinois,  1  Gilmer's  Reports,  529,  the 
same  doctrine  was  held.  The  court,  in  their  opinion  in  that  case, 
use  the  following  language : 

It  is  a  general  principle  of  the  law  that  ministerial  acts  of  an  officer  de  facto 
aro  valid  and  effectual  when  they  concern  tho  public  and  the  rights  of  third  per 
sons,  although  it  may  appear  that  he  has  no  legal  or  constitutional  rifjht  to  the  ojjice. 
The  interests  of  the  community  imperatively  require  the  adoption  of  such  a  rule. 

The  same  court,  in  the  case  of  The  People  vs.  Ammous,  5  Gilnicr, 
107,  enunciated  the  same  doctrine  and  uses  this  language  : 

The  proof  offered  would  have  shown  that  he  was  an  officer  de  facto,  and  as  such 
his  acts  were  as  binding  and  valid  when  tho  interests  of  third  persons  or  the  public 
were  concerned,  as  if  ho  had  been  an  officer  dejure. 

The  supreme  court  of  the  State  of  Missouri  in  the  case  of  Saint  Louis 
County  vs.  Sparks,  10  Missouri,  121,  say : 

When  tho  appointing  power  has  made  an  appointment,  and  a  person  is  appointed 
who  has  not  the  qualifications  required  by  law,  the  appointment  is  not  therefore  void. 
The  person  appointed  is  de  facto  an  officer ;  his  acts  in  the  discharge  of  his  duties 
are  valid  and  binding.  *  *  *  A  statute  prescribing  qualifications  to  an  office  is 
merely  directory,  and  althour/h  an  appointee  does  not  possess  the  requisite  qualified 
tions  kin  appointment  is  not  therefore  void,  unless  it  is  so  expressly  enacted. 

The  supreme  court  of  the  State  of  New  York,  in  the  case  of  Tho 
People  vs.  Cook,  14  Barbour,  259,  in  discussing  this  question,  says 
that  the  principle  is  so  well  established  as  to  have  become  elementary, 
and  uses  the  following  language  : 

The  rule  is  well  settled  by  long  series  of  adjudications,  both  in  England  and  this 
country,  that  acts  done  by  those  who  aro  officers  de  facto  are  good  and  valid  as  re 
gards  the  public  and  third  persons  who  havo  an  interest  in  their  acts,  and  the  rule 
has  been  applied  to  acts  judicial  as  well  as  to  those  ministerial  in  their  character. 
This  doctrine  has  been  held  and  applied  to  almost  every  conceivable  case.  It  can 
not  be  profitable  to  enter  into  any  extended  discussion  of  tho  cases.  The  princi 
ple  has  become  elementary  and  the  cases  are  almost  endless  in  which  the  rule  has 
been  applied. 

In  the  case  of  McGregor  vs.  Balch,  14  Vermont,  428,  it  was  hold 
that  although  a  person  cannot  legally  hold  the  office  of  justice  of  the  peace 
at  all  while  holding  the  office  of  assistant  postmaster  under  the  United 
States,  yet  having  entered  the  former  office  under  the  forms  of  law  he  was 
a  justice  of  the  peace  de  facto,  and  his  acts  as  such  were  valid  as  to 
third  persons  and  tho  public.  These  cases  go  to  the  extent,  there- 


138 


ELECTORAL  COMMISSION. 


fore,  of  holding  that  if  a  person  who  is  ineligible  to  be  elected  or  ap 
pointed  to  office  is  voted  for  by  the  people,  and  receives  the  requisite 
number  of  votes  to  elect  or  appoint  in  case  ho  had  been  eligible,  and 
enters  upon  the  duties  of  the  office,  he  is  not  a  mere  usurper  but  an 
officer  de  facto  acting  under  color  of  title,  and  that  his  acts  as  such 
officer,  in  the  absence  of  fraud,  are  binding  upon  third  persons  and  the 
public.  In  all  these  cases  and  in  others  that  might  be  cited,  distinc 
tion  is  clearly  drawn  between  the  case  of  a  person  who  is  a  mere 
usurper,  and  whoso  acts  are  absolutely  void,  and  that  of  a  person  who 
although  ineligible  or  disqualified,  acts  under  color  of  right,  and  is 
therefore  an  officer  de  facto,  whose  acts  are  not  void,  but  binding  upon 
third  persons  and  the  public. 

But  it  is  said  that  the  clause  in  the  Constitution  of  the  United  States, 
conferring  upon  the  States  the  power  to  appoint  electors,  not  only  im 
poses  a  personal  disqualification  on  a  certain  class  of  persons,  rendering 
them  ineligible  to  be  appointed  electors,  but  limits  and  circumscribes 
the  power  of  the  States  in  the  matter  of  appointment  as  to  such  persons 
by  the  very  terms  of  the  grant,  and  that  therefore,  if  the  State  ap 
point  a  person  falling  within  this  class,  in  reference  to  which  it  is 
claimed  no  grant  of  power  isgiven  to  the  State  to  appoint,  such  appoint 
ment  is  void  and  the  person  so  appointed  would  not  be  an  officer 
cither  dejure  or  de  facto,  but  a  mere  usurper.  But  the  answer  to  this 
is  twofold.  In  the  first  place,  even  admitting  that  the  true  construc 
tion  of  the  constitutional  provisions  is  that  the  grant  is  circumscribed 
and  confers  no  power  on  the  State  to  appoint,  except  from  a  certain 
clas-s  of  persons,  or  rather  that  no  power  is  conferred  upon  the  State 
to  appoint  from  a  certain  class,  is  there  any  greater  or  weightier  rea 
son  for  holding  that  a  person  actually  appointed  by  a  State  from 
among  the  prohibited  class,  and  who,  clothed  with  all  the  insignia  of 
office,  entered  upon  and  discharged  the  duties  of  the  same,  should  not 
bo  considered  an  officer  de  facto  acting  under  color  of  title  than  a  per 
son  who  might  be  appointed,  but  who  was  laboring  under  a  constitu 
tional  disability,  preventing  him  from  exorcising  the  duties  of  an 
office,  it  seems  to  me  not.  In  either  event,  the  person  is  constitution 
ally  prohibited  from  holding  the  office.  In  either  event,  he  comes 
into  possession  of  it  under  color  of  legal  authority,  surrounded  by  all 
the  insignia  attaching  to  office. 

But  again,  suppose  there  is  a  grant  of  power  to  the  State  to  appoint 
electors,  but  that  this  grant  is  limited  as  to  persons,  excepting  from 
its  scope  a  certain  class  of  persons — Federal  office-holders  for  instance ; 
who  must  determine  this  question  of  fact  in  the  first  instance  as  to 
whether  a  person  about  to  be  appointed  conies  within  the  prohibited 
class  ?  Clearly  the  State.  It  has  jurisdiction  to  appoint,  and  juris 
diction  necessary  to  pass  upon  and  determine  the  question  in  the 
first  instance  as  to  whether  a  person  is  or  is  not  within  the  class  to 
which  the  power  of  the  State  attaches ;  and  having  jurisdiction  to  pass 
upon  this  question,  a  mistake  in  the  matter,  by  appointing  a  person 
really  within  the  prohibited-class,  would  not  be  a  void  act  upon  the 
part  of  a  State,  but  simply  voidable  by  the  decision  of  a  competent 
tribunal  made  at  any  time  before  the  act,  which  the  elector  was  ap 
pointed  to  perform,  was  accomplished ;  and  if  no  such  decision  is  made 
his  act  is  the  act  of  an  officer  de  facto  and  cannot  afterward  be  ques 
tioned. 

In  such  a  case  rights  have  vested,  by  virtue  of  the  act  of  a  person, 
acting  in  the  capacity  of  an  elector  under  an  appointment  from  the 
only  power  authorized  to  appoint  electors  and  such  a  person  is  no 
usnrpei' ;  his  acts  are  not  void. 

But  another,  and  it  seems  a  conclusive  answer,  is  that  this  provis 
ion  of  the  constitution  is  not  self-executing,  that  it  requires  legisla 
tion  to  enforce  it,  and  no  such  legislation  has  ever  been  enacted. 

In  the  present  case,  therefore,  conceding  for  the  argument  that 
Watts  was  ineligible  at  the  time  of  election,  that  he  was  not  within 
the  class  from  which  the  State  was  authorized  to  appoint,  and  ad 
mitting  that  the  fact  of  his  ineligibility  was  not  questioned  or  adju 
dicated  upon  by  any  competent  tribunal,  (and  I  will  speak  of  that 
hereafter,)  having,  as  is  conceded,  received  1,049  more  votes  than  his 
competitor,  and  having  acted  as  an  elector  in  the  electoral  college  and 
voted  for  President  and  Vice-President,  such  vote  cannot  now  be  ques 
tioned  either  by  the  judicial  courts,  by  Congress,  the  electoral  tribu 
nal,  or  any  other  power  on  earth,  so  as  to  invalidate  the  votes  thus 
cast  by  him  as  an  elector  for  President  and  Vice-President. 

The  Legislature  of  Oregon  in  its  legislation  upon  the  subject  of  va 
cancies  in  office  treats  the  elect  ion  or  appointment  of  an  ineligible 
person  to  office  in  that  State  as  merely  voidable  and  not  void,  and  pro 
vides  that  a  vacancy  shall  occur  in  the  office  to  which  he  was  elected 
upon  the  decision  of  a  competent  tribunal  declaring  void  such  elec 
tion  or  appointment. 

Section  45  of  the  election  laws  of  Oregon,  relating  to  vacancies  in 
office,  reads  as  follows : 

Every  office  shall  become  vacant  on  the  happening  of  cither  of  the  followin" 
events  before  the  expiration  of  the  term  of  such  oflice : 

1.  The  death  of  the  incumbent. 

2.  His  rcsignaf  ion. 

3.  His  removal. 

4.  His  ceasing  to  bo  an  inhabitant  of  the  district,  county,  town,  or  village  for 
which  he  shall  have  been  elected  or  appointed,  or  within  which  Iho  duties  of  his 
onico  are  required  to  be  discharged. 

5.  His  conviction  of  an  infamous  crime  or  of  any  offense  involving  a  violation  of 
his  oath. 

f..  His  refusal  or  neglect  to  take  his  oalh  of  office  or  to  give  or  renew  his  official 
bond,  or  to  deposit  such  oath  or  bond  within  tho  time  prescribed  by  law. 
7.  fhe  decision  of  a  competent  tribunal  declaring  void  hiy  election  or  appointment. 


From  the  provisions  contained  in  this  last  subdivision  of  tfie  sec 
tion  relating  to  vacancies  it  would  seem  conclusive  that  the  Legisla 
ture  contemplated  that  an  office  might  be  filled  by  a  person  whose 
election  or  appointment  was  really  void  by  reason  of  ineligibility  or 
any  other  cause,  until  the  decision  of  a  competent  tribunal  was  had  de 
claring  such  election  or  appointment  void.  The  Legislature  does  not 
state  what  the  competent  tribunal  is.  Unquestionably,  however, 
under  the  constitution  of  the  State  of  Oregon  the  only  competent 
tribunal  would  be  a  judicial  tribunal. 

WAS  THERE  A  VACANCY  THAT  TUB  ELECTORS  FRE6EXT  COULD  FILL. 

I  come  now  to  the  question  as  to  the  powers  and  duties  of  tho  elect 
ors  present,  under  the  statutes  of  Oregon,  to  supply  by  appointment 
any  deficiency  in  the  number  of  electors  that  may  exist  on  tho  day 
fixed  for  the  meeting  of  the  college. 

And  first,  admitting' Watte  to  have  been  ineligible  to  be  appointed 
an  elector,  and  that  the  election  is  the  appointment  within  the  mean 
ing  of  that  term  as  employed  in  the  Constitution,  did  his  resignation 
as  such  elector,  tendered  by  him  to  the  electors  present  on  the  day 
of  the  meeting  of  the  electoral  college,  create  such  a  vacancy  as  could, 
under  the  statutes  of  Oregon,  be  filled  by  the  electors  present.  I  sub 
mit  with  all  confidence  that  it  did  create  such  vacancy,  and  that  the 
same  was  lawfully  filled  by  the  electors  present  in  the  election  of 
Watts. 

The  s.tatute  of  Oregon,  section  2  of  the  act  of  1804,  is  as  follows : 

The  electors  of  President  and  Vice-President  shall  convene  at  the  seat  of  gov 
ernment  on  tho  first  Wednesday  of  Decembcrnext  after  their  election,  at  tho  hour 
of  twelve  of  the  clock  at  noon  of  that  day  ;  and  if  thtsre  shall  bo  any  vacancy  in  tho 
office  of  an  elector  occasioned  by  death,  refusal  to  act,  neglect  to  attend,' or  otherwise,  tho 
electors  present  shall  immediately  proceed  to  fill  by  viva  voce  and  plurality  of  voles 
such  vacancy  in  the  electoral  college  ;  and  when  all  tho  electors  shall  appear  or  tho 
vacancies,  if  any,  shall  have  been  tilled  as  above  provided,  such  electors  shall  per 
form  the  duties  required  of  them  by  tho  Constitution  and  laws  of  tho  United 
States. 

In  title  7,  section  45,  general  laws  of  Oregon,  page  709,  it  is  pro 
vided  that — 

Every  office  shall  become  Vacant  on  the  happening  of  either  of  tho  following 
events  before  the  expiration  of  the  term  of  such  office  : 

1.  The  death  of  tho  incumbent. 

2.  His  resignation. 

3.  His  removal. 

4.  His  ceasing  to  be  an  inhabitant  of  the  district,  connty,  town,  or  village  for 
which  he  shall  have  been  elected  or  appointed,  or  within  which  the  duties  of  his 
office  are  required  to  be  discharged.  ' 

5.  His  conviction  of  any  infamous  crime  or  of  any  offense  involving  a  violation 
of  his  oath. 

G.  His  refusal  or  neglect  to  take  his  oath  of  office  or  to  give  or  renew  his  official 
bond,  or  to  deposit  such  oath  or  bond  within  tho  time  proscribed  by  law. 
7.  The  decision  of  a,  competent  tribunal  declaring  void  his  election  or  appointment. 

It  is  contended  in  justification  of  the  action  of  Governor  Grover 
that  under  the  circumstances  of  this  case  there  was  no  vacancy  iu 
the  office  of  elector  that  could  be  filled  by  the  electors  present  under 
the  provisions  of  the  statute  quoted ;  in  other  words,  that  Watts 
being,  as  claimed,  ineligible  to  be  appointed,  and  the  election  being 
the  appointment,  there  was  in  this  case  no  election ;  and  there  being 
a  failure  to  elect  there  was  no  vacancy  created  within  the  legal  defi 
nition  of  that  term  as  employed  in  the  statute.  Doubtless  the  very 
strongest  possible  presentation  of  argument  in  favor  of  such  a  posi 
tion  is  made  by  Governor  Grover  himself,  in  a  printed  pamphlet 
entitled  "Executive  decision  by  the  Governor  of  Oregon  iu  the  mat 
ter  of  eligibility  of  electors  of  President  and  Vice-President  of  the 
United  States  for  1876;  printed  at  Salem,  Oregon:  Mart.  V.  Brown, 
State  printer,  1876."  If  the  position  assumed  by  Governor  Grover 
cannot  be  maintained  by  the  arguments  presented  in  this  "  Executive 
decision,"  it  is  fair  to  presume  that  it  cannot  be  maintained  at  all. 

What,  then,  is  the  result  in  the  way  of  argument  upon  the  part  of 
the  governor  in  defense  of  the  position  assumed  by  him  ?  It  is  this  and 
this  only :  There  can  be  no  vacancy  in  the  office  of  presidential  elect 
or  in  Oregon,"  occasioned  by  death,  refusal  to  act,  neglect  to  attend, 
or  otherwise,"  unless  there  has  been  an  incumbent ;  and,  as  Watts  never 
was,  as  argued,  an  incumbeiit,  therefore  no  vacancy  can  be  created 
in  the  office  either  by  his  death,  refusal  to  act,  neglect  to  attend,  or 
otherwise.  I  quote  the  argument  in  the  governor's  own  words,  copied 
from  the  executive  decision  referred  to. 

THE  QUESTION  OF  VACANCY. 

Watts  being  ineligible  to  be  elected,  is  there  a  vacancy  in  the  electoral  college  to 
be  tilled  by  the  other  electors  ?  What  constitutes  a  vacancy  in  office  in  this  State  ? 

In  title  6,  section  48,  General  Laws  of  Oregon,  page  570,  of  vacancies,  we  have 
the  following  provisions : 

SEC.  48.  Every  office  shall  become  vacant  on  the  occurring  of  cither  of  the  fol 
lowing  events  before  tho  expiration  of  the  term  of  such  office: 

1.  Tho  death  of  tho  incumbent; 

2.  His  (the  incumbent's)  resignation  ; 

3.  His  (the  incumbent's)  removal; 

4.  His    (the  incumbent's)  ceasing  to  bo  an  inhabitant  of  the  di.'ffirict,  county, 
town,  or  village  for  which  he  shall  have  been  elected  or  appointed,  or  within  which 
tho  duties  of  his  office  are  required  to  bo  discharged ; 

5.  His  (tho  incumbent's)  conviction  of  an  infamous  crime  or  of  any  offense  involv 
ing  a  violation  of  his  <  ath  ; 

6.  Ilis  (the  incumbent's)  refusal  or  neglect  to  take  his  oath  of  office  or  give  or  re 
new  his  official  bond,  or  to  deposit  such  oath  or  bond  within  tho  time  prescribed  by 
law. 

7.  The  decision  of  a  competent  tribunal  declaring  void  his  (tho  incumbent's) 
election  or  appointment. 

The  word  " incumbent's "  placed  in  parenthesis  in  this  quotation  from  the  code 
of  Oregon  is  placed  there  by  mo  to  indicate  clearly  tho  construction  which  isgiven 
tho  law ; 


ELECTORAL  COMMISSION. 


139 


There  can  l>o  no  vacancy  in  olllcc  in  this  State  unless  there  has  boon  an  iucmnben  t 
and  that  incumbent  has  gone  out  of  office. 

An  "incumbent."  says  Webster,  is  a  person  who  is  in  the  present  possession  of  a 
benefice  or  any  ollice. 

Bouvier  says :  "It  signifies  one  who  is  in  possession  of  an  office;"  and  Sawyer, 
C. .!.,  in  the  case  of  The  People  vs.  Tilton,  37  Gal.,  017,  defines  a  vacancy  as  follows : 
"A  vacancy,  in  the  statutory  sense,  is  when  the  party  enters  upon  the  duties  of 
t  he  ollice  and  afterward  dies',  resigns,  or  in  any  manner  ceases  to  be  an  incumbent 
of  the  office  before  the  expiration  of  the  term." 

In  Boom  vs.  Hanley,  9  Penri.,  513,  it  is  decided  that  even  death,  after  a  lawful 
flection  and  before  qualification,  does  not  create  an  incumbent  of  thootlico,  nor 
(iocs  it  create  a  vacancy  which  can  be  filled  by  appointment  where  the  law  author 
izes  vacancies  to  be  so  filled.  In  this  case  Watts  was  never  an  incumbent  of  the 
ottice  of  elector.  His  approach  to  it  was  absolutely  barred  by  the  Constitution. 
*  *  *  On  the  subject  of  filling  vacancies  in  the  college  of  electors  in  this  State 
the  statute  (Code,  page  598,  section  59)  provides  that — 

If  there  should  be  a  vacancy  in  the  oliicoof  elector  occasioned  by  death,  refusal 
<•>  act,  neglect  to  attend,  or  otherwise,  the  electors  present  shall  immediately  pro 
ceed  to  fill,  by  viva  vocc,  and  plurality  of  votes,  such  vacancy  in  the  electoral  college. 

As  far  as  Watts  is  concerned,  there  haa  been  no  "  death,"  no  "refusal  to  act," 
110  "neglect  to  attend,"  and  there  has  been  no  vacancy  "  otherwise,"  for  the  vital 
reason  that  ho  has  never  been  an  incumbent  of  ollice.  It  is  then  clear  that  there 
has  occuiTcd  no  vacancy  that  can  be  filled  by  the  other  electors  under  the  author 
ity  of  the  statutes  of  Oregon. 

It  will  bo  observed  that  it  is  contended  by  Governor  Grover  that 
no  person  is  an  incumbent  of  an  office  until  ho  is  not  only  elected  to 
such  office,  oven  where  there  is  no  question  as  to  his  eligibility,  but 
has  also  qualified  and  taken  possession  of  the  same,  until  he  lias 
altered  upon  the  duties  of  his  office.  In  other  words,  even  admitting 
him  to  have  been  eligible  to  be  appointed  an  elector  and  to  have  been 
duly  elected,  still,  unless  he  had  first  actually  taken  possession  of  the 
office,  in  the  language  of  one  of  the  opinions  quoted  "entered  upon 
the  duties  of  the  same,"  no  vacancy  could  have  been  created  by  his 
"  death,"  refusal  to  act,  neglect  to  attend,  or  otherwise. 

That  the  authorities  quoted  by  the  governor  have  no  sort  of  refer 
ence  to  a  case  like  the  one  before  us,  and  can  possibly  have  no  bear 
ing  whatever  upon  the  construction  of  the  Oregon  statute,  is  so  trans 
parent  as  to  meet  with  the  instantaneous  comprehension  of  the  most 
casual  observer,  either  lawyer  or  layman,  and  to  scarcely  need  more 
than  a  passing  notice.  The  argument  of  the  governor  proves  too 
much,  and  its  application  ingulfs  him  in  inextricable  confusion. 
His  argument  would  prevent  a  vacancy,  such  as  could  be  filled  by 
the  electors  present  in  a  case  whese  a  person  who  was  clearly  eligible 
and  who  had  been  legally  elected  should,  before  the  meeting  of  the 
electoral  college  and  before  he  had  entered  upon  the  duties  of  his 
office,  either  died,  or  had  for  any  cause  refused  to  act,  resigned,  or 
neglected  to  attend.  Not  having  been  an  incumbent,  says  the  gover 
nor,  which  as  construed  by  him  and  his  authorities— and  1  do  not  ques 
tion  the  construction,  but  simply  its  application  to  the  case — means 
a  person  in  possession  of  an  office,  one  who  has  entered  upon  the  du 
tics  of  an  office,  no  vacancy  therefore,  it  is  claimed,  within  the  mean 
ing  of  the  Oregon  statute,  could  be  created  that  could  be  filled  by 
the  electors  present. 

The  clause  in  the  Oregon  statute  as  to  vacancies  in  the  office  of 
elector,  and  the  manner  in  which  they  shall  be  filled,  is  evidently 
different  from  most  of  the  clauses  in  constitutions,  Federal  and  State, 
and  in  statutes  generally.  It  is  broad  and  comprehensive,  including 
every  possible  vacancy  that  may  occur,  and  not  merely  those  that 
happen  when  an  incumbent  in  possession  of  the  office  and  exercising 
its  duties  for  any  reason  refuses  to  act  or  is  disabled  from  acting 
further;  but  those  occasioned  by  the  "  death,  resignation,  and  refusal 
to  act,  or  otherwise,"  which  includes  the  case  of  a  failure  to  appoint. 
Hence,  the  technical,  legal  construction  as  given  by  courts  to  the 
term  "  vacancy,"  where  standing  alone  in  constitutions  and  statutes 
without  words  of  definition  or  construction  as  to  what  it  means  and 
is  intended  to  include,  could  have  no  kind  of  application  to  the  case 
under  consideration. 

It  has  been  said  that  the  words  "  occasioned  by  death,  refusal  to 
act,  neglect  to  attend,  or  otherwise  "  in  the  Oregon  statutes  are  words 
of  limitation,  contracting  rather  than  enlarging  the  definition  of  the 
term  "  vacancy."  This  is  not  so.  They  are  words  of  definition  and 
not  of  limitation.  The  terms  "  vacancy  "  and  "  all  vacancies,"  as  used 
in  constitutions  and  statutes,  had  by  some  judicial  tribunals  (although 
such  docs  not  appear  to  bo  the  weight  of  authority)  been  construed 
to  mean  only  such  as  were  created  iu  a  case  where  an  incumbent  in  the 
actual  2)ossession  of  an  office  exercising  its  duties  had  cither  died,  resigned, 
of  become  legally  disabled.  And  it  was  to  obviate  the  application 
of  any  such  construction  of  the  term  "  vacancy  "  and  "  all  vacancies  " 
that  the  Legislature  of  the  State  of  Oregon  gave  definition  to  the 
word  "  vacancy  "  iu  the  electoral  statute,  and  to  the  end  that  it  might 
not  be  limited  merely  to  cases  where  there  had  been  an  incumbent ; 
an  elector  actually  in  possession  of  the  office  exercising  its  duties  as 
such  incumbent  Avho  had  either  died,  resigned,  or  become  legally 
disabled. 

The  reason  why  a  different  rule  should  have  been  established  in 
reference  to  filling  vacancies  in  the  office  of  presidential  elector  from 
that  relating  to  many  if  not  all  other  offices,  is  apparent.  While  the 
office  of  presidential  elector  is  one  of  the  most  important  created  by 
the  Constitution  of  our  country,  it  is  the  shortest  lived.  The  term  of 
office  is  confined  to  less  than  a  single  day.  He  enters  upon  its  duties, 
takes  possession  of  it,  becomes  an  incumbent  in  it  at  twelve  o'clock 
meridian  on  a  certain  day,  and  with  the  performance  of  his  duty 
(which  usually  does  not  require  more  than  an  hour)  his  term  by  oper 
ation  of  law  ceases ;  his  official  robes  drop.  He  is  fund  us  offtdo  and  a 
private  citizen.  To  hold,  therefore,  that,  under  the  Oregon  statute, 


the  electors  present  could  only  fill  such  vacancies  as  might  by  "death, 
resignatiou,  refusal  to  act,  neglect  to  attend,  or  otherwise,"  occur- 
after  twelve  meridian  on  the  day  of  meeting,  after  they  had  entered 
upon  their  duties  and  become  incumbents,  would  be  to  insist  upon  an 
absurdity  so  glaring  on  the  very  face  of  the  proposition  as  to  put  to 
shame  and  confusion  the  lawyer  that  would  seriously  insist  upon  it. 
if  there  can,  as  contended  by  Governor  Grover,  be  no  vacancy  such 
as  the  electors  present  could  fill  unless  there  had  first  been  an  attend 
ance  of  the  elector  who  had  entered  upon  the  duties  of  his  office  and 
become  an  incumbent  of  the  office,  then  why,  I  would  inquire,  did  the 
Legislature  'of  Oregon  provide  that  the  "  electors  present  should  im 
mediately  proceed  to  fill  by  viva  voce  and  plurality  of  votes  any  va 
cancy  caused,  among  other  things,  by  neglect  to  attend  or  otherwise?" 
Are  these  words  meaningless  ?  Are  they  to  be  eliminated  from  the 
statutes  and  their  force  obscured  and  buried  under  a  legal  interpre 
tation  of  the  term  "  vacancy,"  when  standing  alone  ? 

But  again,  the  governor  iu  his  decision  assumes  that  no  person  but 
one  who  is  eligible  to  be  appointed  can  become  an  incumbent.  And 
yet  the  very  statute  he  quotes,  subdivision  seven  relating  to  vacancies, 
contemplates  that  a  person  whose  election  is  void  may  become  an  in 
cumbent  and  exercise  the  duties  of  au  office.  And  although  his  elec 
tion  is  void,  no  vacancy  occurs  until  by  the  decision  of  a  competent 
tribunal  such  election  is  declared  to  bo  void.  But  not  only  so,  says 
Governor  Grover  in  his  "Executive  decision,"  but  '•  No  vacancy  could 
be  created  in  the  office  of  presidential  elector  which  the  electorspresent 
could  fill,  unless  there  had  been  au  incumbent."  If  this  is  true,  then, 
although  Watts  had  been  clearly  eligible,  there  had  been  no  question 
about  the  legality  of  his  election.  Yet,  if  before  he  had  entered  upon 
the  duties  of  his  office  as  elector  and  become  an  incumbent,  which 
he  could  not  do  before  the  6th  day  of  December,  he  had  died,  resigned, 
neglected  to  attend,  or  refused  to  act,  no  vacancy,  according  to  the 
law  and  logic  of  the  governor,  would  have  beea'created  which  the 
electors  present  could  fill. 

Should  it  be  held,  therefore,  that  the  appointment  of  Watts  was 
not  merely  voidable  but  absolutely  void — and  I  insist  in  any  possible 
view  of  the  case  it  was  but  voidable — and  that  there  was,  as  to  him, 
a  failure  to  elect,  still  under  the  statute  of  Oregon,  broad  and  com 
prehensive  as  it  is,  the  electors  present  had  the  right  and  it  was  their 
duty  to  fill  the  vacancy  occasioned  by  such  failure  to  elect.  If  his 
appointment  was  merely  voidable  and  might  have  been  declared  void 
under  the  statute  by  a  competent  tribunal,  but  was  not  so  declared, 
then  he  could  rightfully  act  in  the  college  of  electors  either  under 
his  original  appointment  by  the  people  as  an  elector  or  by  virtue  of 
his  appointment  by  the  electors  present  when  they  accepted  his  resig 
nation. 

Or,  again,  should  it,  for  the  sake  of  argument,  be  conceded  that 
Watts  was  not  appointed  and  that  Crouiu  was — and  it  is  also  conceded, 
as  it  must  be  as  a  matter  of  fact,  that  they,  Odell,  Cartwright,  and 
Cronin,  did  not  act  together  as  an  electoral  college — but  that  Odell 
and  Cartwright,  a  majority  of  the  college,  acted  together  with  Watts, 
whom  they  elected  to  fill  -the  vacancy ;  and  Cronin,  a  minority  of  one, 
acting  by  himself,  and  declaring  or  attempting  to  declare,  and  fill 
ing  or  attempting  to  fill  two  vacancies,  which,  in  such  case,  is  the 
legally  constituted  college  ?  There  can  bo  but  one  college  of  electors 
in  a  State,  and  under  these  circumstances  the  former  must  be  held  to 
be  that  one.  The  only  record  the  law  contemplates  as  to  vacancies  in 
the  electoral  college  is  the  record  made  by  the  electors  themselves : 
the  certificate  of  the  organized  tribunal,  the  electoral  college.  This  is 
not  merely  the  only  record,  but  it  is,  as  I  confidently  insist,  conclusive 
upon  that  subject ;  and  Odell  and  Cartwright  being  a  majority  of  the 
electors  constituting  the  electoral  college  in  Oregon,  whose  title  is 
indisputable,  questioned  by  no  one,  not  even  by  the  governor  in  his 
certificate,  but  by  it  approved,  their  certificate  as  to  the  fact  that 
there  was  a  vacancy,  and  that  such  vacancy  was  filled  by  them,  is  con 
clusive,  not  only  against  Croriiu,  but  all  other  persons,  the  State,  the 
General  Government,  Congress,  and  the  electoral  tribunal  as  well. 

This  appointment  to  fill  a  vacancy  is  an  appointment  by  the  State, 
iu  the  manner  directed  by  the  Legislature  and  in  pursuance  also  of 
the  Constitution  of  the  United  States  and  the  act  of  Congress;  and 
as  the  canvass  of  the  secretary  of  state  is  conclusive  as  to  those  ap 
pointed  by  the  people,  so  the  certificate  of  the  electoral  college  is  con 
clusive  as  to  the  fact  of  vacancy  as  well  as  to  the  persons  appointed 
to  fill  it.  And  it  is  immaterial  to  inquire  or  know  whether  such  va 
cancy  was  occasioned  because  Cronin  did  not  act  with  the  majority 
or  because  Watts  resigned.  And  the  fact  that  Croniu  set  up  or  at 
tempted  to  organize  a  college  of  his  own,  filled  or  attempted  to  fill 
two  vacancies,  and  voted  for  President  and  Vice-President  in  connec 
tion  with  the  persons  brought  to  his  assistance,  must  be  held  to  bo 
conclusive  against  Croniu  that  he  did  not  act  or  attempt  to  act  with 
Odell  and  Cartwright ;  and  in  that  event,  conceding  that  Crouin  was 
elected,  there  was  a  vacancy  which  was  legally  filled  by  Odell  and 
Cartwright,  and  the  record  made  by  them  is  the  record  of  the  real 
electoral  college.  If  Cronin  was  appointed  an  elector,  then  it  was  his 
duty  to  act  with  the  majority,  and  that  ho  did  not  act  is  conclusively 
shown  in  the  fact  that  he  organized  a  college  of  his  own.  It  will  not 
do  for  Croniu  to  say  that  Odell  and  Cartwright  refused  to  act  with  him 
or  to  permit  him  to  act  with  them.  He  is  in  no  position  to  make  any 
such  claim,  nor  is  his  party.  If  such  had  been  the  fact — and  it  clearly 
was  not — Crouin,  instead  of  attempting  to  set  up  a  college  of  his  own, 
should  have  contented  himself  with  insist  ing  upon  his  right  to  act  with 


140 


ELECTORAL   COMMISSION. 


Odell  and  Cartwright ;  and,  bad  they  refused  to  act  with  him,  then 
presented  and  tiled  his  protest  and  cast  his  vote  for  President  and 
Vice-President,  and  stood  upon  his  rights  as  a  member  of  that,  the 
only  electoral  college  in  the  State.  It  is  clear,  however,  as  before 
stated,  that  all  the  acts  of  Crouin  at  the  meeting  of  the  electoral  col 
lege  were  inconsistent  with  any  claim  that  may  be  made  that  Odell 
and  Cartwright  refused  to  recognize  him  or  to  act  with  him.  They 
demanded  an  exhibition  of  his  credentials  to  act  as  an  elector,  that 
they  might  determine  as  to  their  validity  and  as  to  his  right  to  act  as 
an  elector.  This  he  peremptorily  refused  to  do ;  and  it  is  no  excuse 
to  say  that  the  reason  he  refused  to  produce  or  exhibit  his  credentials 
was  from  a  fear,  imaginary  or  otherwise,  that  he  would  not  be  treated 
fairly  by  the  majority  of  the  electors.  He  had  no  right  in  law  or,  so 
far  as  the  testimony  shows,  in  fact  to  act  upon  any  such  presump 
tion,  although  ho  held  in  his  hands  three  certificates  from  the  gov 
ernor,  each  one  containing  the  three  names  of  Odell,  Cartwright,  and 
Cronin ;  yet,  against  the  repeated  requests  of  Cartwright  and  Odell 
to  produce  them  or  exhibit  them  for  the  guidance  of  the  college  and 
that  they  might  determine  as  to  his  right  to  a  seat  in  the  college,  he 
kept  them  in  his  pocket,  only  reading  one  of  them  in  part,  as  testified 
to  by  the  republican  electors  and  in  full  as  testified  to  by  democrats 
present  who  were  not  electors  and  who  had  no  right  to  be  present, 
aW  peremptorily  refused  to  deliver  any  of  them  to  either  Cartwright 
or  Odell.  He  might  have  delivered  one  to  each,  and  had  they  then 
refused  to  act  with  him  or  treat  him  fairly  he  would  have  had  in  his 
possession  the  third  certificate  from  the  governor  showing  the  fact 
that  he  had  been  certified  to  as  one  of  the  electors  for  whatever  it 
might  have  been  worth.  Snch  a  course,  however,  upon  his  part  would 
have  been  inconsistent  with  the  harmony  of  the  conspiracy  planned 
in  New  York  and  executed  in  Oregon,  conceived  in  corruption  and 
brought  forth  in  shameless,  unblushing  fraud,  with  a  view  of  robbing 
the  majority  of  the  people  of  the  State  of  their  choice  as  expressed  at 
the  ballot-box  for  President  and  Vice-President  of  these  United 
States. 

Upon  this  point,  that  Croniu's  own  version  may  be  seen,  I  quote 
from  his  testimony.  After  describing  the  situation  of  the  parties  in 
the  room  of  the  electoral  college,  those  present,  &c.,  Mr.  Crouin  said : 

Af ter  we  had  taken  seats  as  I  have  described,  Mr.  Cartwright  demanded  those 
certificates  of  mo.  I  told  him  ho  should  riot  have  thorn.  Ho  remarked,  "We  have 
as  much  Tight  to  those  as  you  have,  and  there  are  two  of  us,  and  we  have  a  right  to 
those  oertih'cates,  and  we  want  them."  I  repeated  again  that  he  should  not  have 
them  ;  that  the  certificates  were  of  no  use  any  way  except  to  attach  to  our  return, 
lie  replied  to  that,  as  near  as  I  can  recollect,  "\Ve  want  those  certificate?!,  and 
why  don't  you  give  them  to  us  1"  I  replied  by  saying,  "  I  don't  think  you  intend 
to  treat  me  fairly.  In  the  first  place  here  is  a  United  States  marshal' who  takes 
possession  of  the  college;  then  Mr.  Odell  takes  the  key;  and  you  might  as  well 
understand  first  as  last  that  you  shall  not  have  those  certificates."  About  that 
time,  I  think,  Dr.  Watts  got  up  and  read  his  resignation,  and  his  resignation  was 


certificates,"  or  words  to  that  affect.    I  suppose  I  might  as  well  say  here  that  I  did 
not  hear  Mr.  Cartwright  or  Mr.  Odell  in  terms  refuse  to  act  with  me. 

******* 

Q.  Why  did  yon  not  produce  the  certificates  and  put  them  on  the  table  1 

A.  Because  I  did  not  propose  that  Mr.  Cartwright,  Mr.  Odell,  or  Mr.  "Watts 
should  get  those  certificates. 

Q.  Bid  you  not  consider  that  Mr.  Cartwright  and  Mr.  Odell  had  as  much  right 
to  them  as  you  had. 

A.  Certainly. 

Q.  Why  did  yon  not  put  them  on  the  table  before  them  1 

A.  Because  if  I  had  put  those  certificates  on  the  table  or  had  given  those  certifi 
cates  either  to  Mr.  Odell  or  Mr.  Cartwright  or  Dr.  Watts,  I  suspected  they  would  do 
just  what  they  did  do,  and  I  should  bo  left  without  a  certificate.  The  certificates 
made  out  in  proper  order  would  have  been  returned  to  President  Ferry  with  their 
proceedings,  and  that  would  have  been  recognized  in  preference  to  any  other. 

Q.  Still  I  ask  you  if  you  did  not  feel  bound  to  obey  the  majority  of  "the  electors 
known  to  be  elected,  when  they  asked  you  to  put  the  certificates  on  the  table  1 

A.  No,  sir. 

Q.  Did  you  think  you  had  a  right  to  take  them  away  from  the  majority? 

A.  The  question  of  right  did  not  enter  into  that  as'much  as  the  question  of  ex 
pediency. 

From  this  it  would  seem  that  Mr.  Cronin  was  not  acting  from  a 
sense  of  right  or  duty,  but  solely  from  considerations  of  expediency. 

By  the  statutes  of  all  the  States  the  electors  are  authorized  to  iill 
vacancies  in  the  college.  The  certificate  that  goes  to  the  President 
of  the  Senate  is  from  the  electors  themselves,  and  not  from  the  gov 
ernors  of  the  States.  The  only  way  the  President  of  the  Senate  has 
knowledge  of  the  certificate  of  the  governor  is  through  the  certifi 
cate  of  the  college  of  electors.  To  that  body,  the  college  of  electors, 
is  referred  the  determination  of  all  questions  of  vacancy.  If  its 
journal  shall  recite  that  there  was  a  vacancy  which  had  been  filled 
by  the  body  it  is  not  competent  to  go  behind  that  certificate  and  in 
quire  whether  there  was  such  a  vacancy.  If  there  are  two  or  more 
certificates  from  the  same  State  the  first  duty  of  the  counting  officer 
or  tribunal  is  to  find  out  which  came  from  the  electoral  college,  and 
when  that  certificate,  which  contains  the  names  and  the  action  of  a 
majority  of  the  electors,  conceded  by  all  to  be  such,  is  found,  we  may 
bo  sure  we  have  the  record  of  the  electoral  college;  and  when  the 
true  college  is  found  the  counting  officer  or  tribunal  may  look  to  its 
action  with  entire  certainty  as  that  by  which  the  count  must  be  gov 
erned.  For  example,  if  a  certificate  made  by  two  of  the  known  and 
conceded  electors  in  Oregon  is  found,  the  counting  officer  or  tribunal 
may  know  that  those  two  constitute  the  electoral  college  of  that 
State,  and  their  decision  must  govern  in  determining  the  question 
whether  there,  was  a  vacancy,  and  how  it  was  filled  and  by  whom. 


In  the  case  under  consideration  two  certificates  have  been  opened, 
one  made  by  two  of  the  known  and  recognized  electors  about  whoso 
election  there  is  no  dispute;  hence  this  tribunal  is  bound  to  receive 
that  as  the  certificate  of  the  college  of  electors  and  be  governed  by 
its  determination  in  regard  to  any  question  of  vacancy,  although  the 
other  certificate  contains  the  name  of  one  man  who  was  certified  by 
the  governor  as  having  been  appointed,  and  who  had  assumed  to  act 
as  the  college  of  electors,  and  who  had  attempted  to  appoint  two 
substitutes  in  the  place  of  the  other  electors  who  are  known  to  have, 
been  appointed  and  who  executed  the  former  certificate.  The  latter- 
certificate  amounts  to  nothing,  and  should  be  utterly  disregarded, 
except  in  so  far  as  it  contains  the  certificate  of  the  governor  of  tho 
appointment  of  the  two  electors  who  executed  the  former  certificate. 
To  that  extent  and  that  only  can  the  certificate  of  the  governor  bo 
accorded  recognition,  for  the  reason  that  only  to  that  extent  is  it  trao 
to  the  purpose  of  its  creation,  which  is  to  chronicle  a  pre-existing 
fact,  only  so  far  is  it  a  faithful  record  of  the  fact  of  appointment  ttf 
the  State;  and  being  no  part  of  the  manner  of  appointment  but 
merely  a  form  of  evidence,  but  not  a  conclusive  one,  of  the/aci  of  ap 
pointment,  it  should  only  bo  received  in  so  far  as  it  is  a  true  and 
faithful  chronicler  of  the  facts  as  to  the  persons  appointed  by  the 
State ;  and  in  so  far  as  it  falsifies  the  fact  it  should  be  repudiated 
and  disregarded.  In  so  far,  then,  as  the  governor's  certificate  bears 
evidence  that  Odell  and  Cartwright  were  appointed  by  the  State  it 
is  a  faithful  and  true  certificate  of  the  fact,  and  should  be  accorded 
full  faith  and  credit  by  the  counting  tribunal;  but  in  so  far  as  it  cer 
tifies  Cronin  to  have  been  appointed  it  is  a  falsifier  of  history,  a  mis- 
representer  of  a  great  fact,  a  contradiction  of  the  record  made  by 
the  canvassing  officers,  the  product  of  usurpation,  fraud,  or  mistake, 
and  entitled  to  no  recognition  or  credence  upon  the  part  of  either 
this  high  tribunal  or  any  other  officer  or  department  of  government. 

It  has  been  said  that  the  supreme  court  of  the  State  of  Rhode 
Island  has  recently  decided  that  the  resignation  of  a  person  who  was 
ineligible  to  be  appointed  an  elector,  and  who  had  received  a  majority 
of  the  votes,  did  not,  under  the  statutes  of  that  State,  create  such  a 
vacancy  as  the  other  electors  could  fill.  This  may  all  be  true,  and 
still  it  does  not  affect  the  Oregon  case.  The  State  having  the  sole 
power  to  appoint,  may  prescribe  for  filling  vacancies  in  the  electoral 
college,  whether  arising  from  death,  resignation,  neglect  to  attend, 
refusal  to  act,  or  any  other  cause,  including  that  of  a  failure  to  elect. 
The  Legislature  may  direct  that  a  vacancy  occurring  from  a  failure 
of  the  elector  to  attend,  or  from  a  failure  of  the  people  to  elect,  shall 
be  filled  by  a  new  election  by  the  people,  or  it  may  direct  that  tho 
other  electors,  or  the  electors  present,  shall  appoint  persons  to  supply 
such  vacancies,  and  upon  this  point  the  statutes  of  the  several  States 
are  different,  and  the  statute  of  the  State  of  Ehode  Island  is,  in  this 
respect,  widely  different  from  that  of  Oregon.  The  Oregon  statute, 
as  we  have  seen,  provides  that  "  If  there  shall  be  any  vacancy  in  tho 
office  of  elector  occasioned  by  death,  refusal  to  act,  neglect  to  attend, 
or  otherwise,  the  electors  present  shall  immediately  proceed  to  fill  by 
viva  voce  and  plurality  of  votes  such  vacancy  in  the  electoral  col 
lege  " — evidently  intended  to  cover  all  cases  where  the  requisite  num 
ber  of  electors  was  not  present,  whether  such  number  was  diminished 
by  death,  refusal  to  act,  neglect  to  attend,  or  failure  to  elect,  whereas 
the  statute  of  Rhode  Island  provided  as  follows : 

If  any  electors  chosen  as  aforesaid  shall  after  their  said  election  decline  tho  said 
office,  or  be  prevented  by  any  cause  from  serving  therein,  the  other  electors  *  *  * 
shall  fill  such  vacancies. 

It  may  well  be  said  that  under  the  Rhode  Island  statute  the  elect 
ors  present,  or,  as  the  statute  has  it,  the  "  oilier  electors"  have  no  right 
to  fill  a  vacancy  occasioned  by  a  failure  to  elect;  but  such  cannot  bo 
claimed  under  the  statute  of  Oregon,  as  there  the  statute  clearly  au 
thorizes  the  electors  present  to  fill  any  vacancy,  whether  occasioned 
by  death,  resignation,  refusal  to  act,  neglect  to  attend,  or,  under  the 
"otherwise"  clause,  failure  to  elect. 

The  statutes  of  the  several  States  upon  this  subject  are  very  dis 
similar,  and  the  power  of  the  electors  present  in  each  State  to  fill 
vacancies  must  be  determined  in  each  State  by  a  reference  to  and 
construction  of  tho  statute  of  such  State. 

The  statutes  of  California,  for  instance,  provide  that — 

In  case  of  tho  death  or  absence  of  any  elector  so  chosen,  or  in  case  the  number 
of  electors  shall,  from  any  cause,  be  deficient,  tho  electors  then  present  shall  forth 
with  elect  from  tho  citizens  of  tho  State  so  many  persons  as  shall  supply  the  defi 
ciency 

Under  this  statute,  therefore,  the  electors  present  clearly  have  the 
right  to  fill  any  vacancy,  whether  occasioned  by  death, resignation,  re 
fusal  to  act,  neglect  to  attend,  or  failure  to  elect. 

Mr.  President  and  gentlemen  of  tho  Commission  :  I  submit  this 
case  upon  the  papers  before  you.  Were  I  authorized  to  invoke  your 
judgment  upon  facts  aliimde  the  record,  then  would  I  feel  justified  in 
directing  your  attention  to  acts  of  intrigue,  corruption,  and  fraud  in 
connection  with  the  Oregon  electoral  vote  that  will  stand  forever  in, 
history  as  tho  crowning  infamy  of  an  unrestrained  and  insane  per 
sonal  and  political  ambition.  While  the  charge  of  perjury  and  fraud 
against  the  returning  boards  of  Louisiana  and  Florida  is  by  disap 
pointed  and  maddened  partisans  echoed  throughout  the  laud,  I  might, 
were  it  proper,  point  you  to  a  conspiracy  that  had  its  origin  at  No.  15 
Gramercy  Park,  New  York  City,  at  the  home  and  by  the  fireside  of 
Samuel  j.  Tilden,  the  democratic  candidate  for  President,  that  had 
for  its  purpose  the  purchase  of  an  electoral  vote,  upon  the  faith  ef 


ELECTORAL  COMMISSION. 


141 


which  his  title  to  the  Chief  Magistracy  of  the  nation  might  be  estab 
lished. 

Mr.  Commissioner  STRONG.  I  would  rather  not  hear  anything  on 
that  subject.  There  is  no  such  evidence  before  us. 

Mr.  Senator  MITCHELL.  I  submit  to  the  intimation,  and  though 
the  law  of  your  creation  may  not  authorize  you  to  look  into  or  con 
sider  this  record  of  intrique,  corruption,  and  fraud ;  it  will  stand  never 
theless  as  a  part  of  the  history  of  the  times,  a  changeless  palsied  plague 
spot  upon  the  record  of  the  democratic  party,  that  time  cannot  ob 
scure,  or  repentance  obliterate. 

Mr.  President,  I  have  faith  in  this  Commission  and  in  the  justice 
of  its  final  judgment.  I  feel  that  when  the  arduous  and  responsi 
ble  labors  of  you  and  your  honorable  associates  have  ended,  forty- 
five  millions  of  people  can  raise  their  eyes  to  heaven  and  exclaim  in 
the  language  of  the  gifted  bard — 

Great  God !  wo  thank  thee  for  this  home. 
This  bounteous  birth-land  of  tho  free, 
Where  wanderers  from  afar  may  come 
And  breath  the  air  of  liberty. 
Still  may  her  flowers  untrampleYl  spring, 
Her.  harvests  wave,  her  cities  rise, 
And  yet,  till  Time  shall  fold  his  wing, 
liemain  earth's  loveliest  paradise. 

Mr.  Representative  LAWRENCE.  Mr.  President  and  gentlemen 
of  the  Commission,  so  much  time  has  already  been  consumed  continu 
ously  in  this  debate  that  I  know  very  well  that  any  words  I  may  utter 
must  fall  upon  weary  ears.  In  a  matter  of  so  much  consequence  as 
this,  I  can  only  invoke  the  indulgence  and  patient  attention  of  the 
Commission. 

Mr.  Commissioner  THURMAN.  Allow  mo  to  interrupt  you,  Mr. 
Lawrence.  I  beg  leave  to  make  a  suggestion.  There  are  five  hours 
more  of  argument,  one  by  Mr.  Lawrence  and  four  by  counsel.  I  do 
not  think  it  is  possible  for  us  to  sit  here  for  those  five  hours  to-night, 
and  I  suggest  that  it  would  be  more  convenient  to  proceed  to-mor 
row,  and  unless  Judge  Lawrence  prefers  to  proceed  to-day  I  move 
that  we  adjourn  until  ten  o'clock  to-morrow.  If  he  wishes  to  proceed 
now,  I  have  not  a  word  to  say. 

Mr.  Representative  LAWRENCE.  It  will  suit  my  convenience  in 
any  way  that  meets  tho  approbation  of  the  Commission. 

Mr.  Commissioner  THURMAN.  If  we  could  get  through  to-day  I 
should  prefer  to  do  so. 

Mr.  Commissioner  GARFIELD.  It  seems  to  me  it  will  bo  conven 
ient  to  tho  Commission,  if  we  can  at  least  have  the  authorities  that 
have  been  cited  and  are  to  be  cited  by  tho  objectors.  If  we  can  have 
to-morrow  morning  in  print  before  us  the  argument  of  the  objectors, 
I  think  it  would  make  a  complete  exhibit  of  the  objectors'  case  on 
both  sides,  and  I  would  prefer  that  the  objectors  should  finish  to 
night. 

Mr.  Representative  LAWRENCE.  I  have  authorities  which  I  think 
may  be  of  some  value  and  weight  in  the  way  of  aiding  the  Commission. 

Mr.  Commissioner  EDMUNDS.  Had  we  not  better  take  a  recess 
and  get  on  with  part  of  the  argument  to-night? 

Mr.  HOADLY.  I  desire  to  make  a  suggestion  to  the  Commission. 
On  our  side  we  shall  desire  an  extension  of  time.  We  do  not  think 
that  we  can  present  the  very  great  number  of  questions  of  law  and 
authorities  within  the  time  allowed  by  the  Commission.  We  are  will 
ing  to  sacrifice  our  own  convenience  in  order  to  arrive  at  a  speedy 
result.  I  am  authorized  by  my  associates  to  say  that  we  would  pre 
fer  very  much,  in  order  that  the  decision  of  tho  Commission  may  be 
hastened,  to  sit  this  evening  to  any  hour  rather  than  not  to  have  our 
request  for  additional  time  granted. 

Mr.  Commissioner  HOAR.  Will  Judge  Hoadly  be  kind  enough  to 
state,  if  he  has  considered,  what  additional  time  he  proposes  to  ask 
for? 

Mr.  HOADLY.  We  desire  that  our  time  be  extended  to  double  the 
amount  which  the  Commission  allows  by  its  rules ;  and  as  I  said,  we 
are  willing  to  take  it  out  of  the  hours  of  the  night  rather  than  not 
have  the  extension. 

Mr.  Commissioner  EDMUNDS.  I  venture  to  submit  this  motion 
for  the  decision  of  the  Commission,  that  we  now  take  a  recess  until 
half-past  six  o'clock,  to  meet  in  the  Senate  Chamber,  which  is  at  our 
disposal. 

Mr.  Commissioner  HUNTON.     I  should  gather  hear  the  objections. 

Mr.  Commissioner  PAYNE.  I  think  we  had  better  hear  the  objec 
tions. 

Mr.  Commissioner  EDMUNDS.    Very  well,  I  withdraw  the  motion. 

The  PRESIDENT.    Tho  motion  is  withdrawn. 

Mr.  Representative  LAWRENCE.  Mr.  President  and  gentlemen, 
the  Commission  before  which  I  have  the  honor  now  to  appear  is 
charged  with  the  momentous  and  solemn  duty  of  considering  "the 
certificates  and  papers  purporting^  be  certificates  of  the  electoral 
votes"  of  the  State  of  Oregon,  with  the  "objections"  thereto,  and 
with  the  further  duty  to  "  decide  whether  any  and  what  votes  from" 
that  "State  are  Devotes  provided  for  by  the  Constitution  of  the 
United  States,  and  how  many  and  what  persons  were  duly  appointed 
electors  in  "  tho  State. 

There  are  before  the  Commission  duplicate  papers  purporting  to  be 
certificates  of  the  electoral  votes  cast  by  two  different  Beta  of  persons, 
each  claiming  to  be  the  electoral  college.  It  is  my  purpose  to  main 
tain  thai,  W.  H.  Odell,  J.  C.  Cartwright,  aud  J.  W.  Watts,  whom  I 


will  for  brevity  designate  "  the  Hayes  electors,"  were  duly  appointed  ; 
that  they  present  the  proper  evidence  of  this  fact,  and  that  the  votes 
by  them  given  for  Rutherford  B.  Hayes  for  President  and  for  William 
A.  Wheeler  for  Vice-President  are  the  votes  provided  for  by  the  Con 
stitution  ;  and  that  E.  A.  Cronin,  J.  N.  T.  Miller,  and  John  Parker, 
the  so-called  "Tilden  electors,"  were  not  duly  appointed;  that  they 
are  without  sufficient  evidence  of  title  to  office,  aud  that  the  votes 
they  gave  for  Samuel  J.  Tildeu  for  President  and  for  Thomas  A.  Heii- 
dricks  for  Vice-President  are  not  the  votes  provided  for  by  the  Con 
stitution. 

PROVISIONS  OF  CONSTITUTIONS  AND  STATUTES. 

In  conducting  the  inquiries  which  are  to  be  answered  by  this  Com 
mission  I  will  first  ask  attention  to  the  constitutional  and  statutory 
provisions  which  create  the  office  of  elector,  provide  for  lilliug  it,  anil 
prescribe  the  appropriate  evidence  of  title  to  it. 

The  Constitution  of  the  United  States  provides  that — 

The  executive  power  shall  bo  vested  in  a  President  of  the  United  States  of 
America.  Ho  shall  hold  his  oflico  during  the  term  of  four  years,  and  together  with 
the  Vice-President,  chosen  for  tho  same  term,  be  elected  as  follows  : 

Each  State  shall  appoint,  in  such  manner  as  the  Legislature  thereof  may  direct, 
a  number  of  electors,  equal  to  the  \yholc  number  of  Senators  and  Representatives 
to  which  the  State  may  bo  entitled  in  the  Congress :  but  no  Senator  or  Ropresenta- 
tivo,  or  person  holding  an  oilico  of  trust  or  profit  under  the  United  States,  shall  bo 
appointed  an  elector. — Article  2,  section  I. 

The,  electors  shall  meet  in  their  respective  States,  and  vote  by  ballot  for  President 
and  Vice-President.  one  of  whom,  at  least,  shall  not  be  an  inhabitant  of  the  samo 
State  with  themselves  ;  they  shall  name  in  their  ballots  the  person  voted  for  as 
President,  and  in  distinct  ballots  the  person  voted  for  as  Vice-President,  and  they 
shall  make  distinct  lists  of  all  persons  voted  for  as  President,  and  of  all  persons 
voted  for  as  Vice-President,  and  of  the  number  of  votes  for  each  ;  which  lists  they 
shall  sign  and  certify,  and  transmit  sealed  to  tho  seat  of  government  of  the  United 
Status,  directed  to  the  President  of  tho  Senate.  The  President  of  the  Senate  shall, 
in  tho  presence  of  the  Senate  and  House  of  Representatives,  open  all  tbecertilie.itcs, 
and  the  votes  shall  then  be  counted ; — the  person  having  thft  greatest  number  of  votes 
for  President,  shall  be  the  President,  if  such  number  be  a  majority  of  the  whole 
number  of  electors  appointed  ;  and  if  no  person  have  such  majority,  then  from  tho 

Eersons  having  the  highest  numbers  not  exceeding  three  on  tho  list  of  those  voted 
>r  as  President,  the  House  of  Representatives  shall  choose  immediately,  by  ballot, 
the  President.  But  in  choosing  tho  President,  tho  votes  shall  be  taken  by  States, 
the  representation  from  each  State  having  one  vote ;  a  quorum  for  this  purpose 
shall  consist  of  a  member  or  members  from  two-thirds  of  the  States,  and  a  ma 
jority  of  all  the  States  shall  be  necessary  to  a  choice.  And  if  the  House  of  Repre 
sentatives  shall  not  choose  a  President  whenever  the  rjght  of  choice  shall  devolve 
upon  them,  before  tho  fourth  day  of  March  next,  following,  then  tho  Vice-President 
shall  act  as  President,  as  in  tho  case  of  the  death  or  other  constitutional  disability 
of  tho  President. 

Tho  person  having  the  greatest  number  of  votes  as  Vice-President  shall  be  tho 
Vice-President.  if  such  number  be  a  majority  of  the  whole  number  of  electors  ap 
pointed  ;  and  if  no  person  have  a  majority,  then  from  the  two  highest  numbers  on 
tho  list  tho  Senate  shall  choose  tho  Vice-President.-—  Article  12,  Amendments. 

No  person  except  a  natural-born  citizen,  or  a  citizen  of  the  United  States,  at  the 
time  of  tho  adoption  of  this  Constitution  shall  be  eligible  to  tho  office  of  President ; 
neither  shall  any  person  bo  eligible  to  that  otiico  who  shall  not  hayo  attained  to  tho 
age  of  thirty-five  years,  aud  been  fourteen  years  a  resident  within  tho  United 
States. — Article  2,  section  1. 

Tho  Congress  may  determine  tho  time  of  choosing  the  electors,  and  the  day  on 
which  they  shall  give  their  votes ;  which  day  shall  be  tho  samo  throughout  the 
United  States. — Article  2,  section  1. 

The  Congress  shall  have  power  *  *  *  to  make  all  laws  which  shall  be  nec 
essary  and  proper  for  carrying  into  execution  the  foregoing  powers,  and  all  other 
powers  vested  by  this  Constitution  in  the  Government  of  the  United  States,  or  in 
any  department  or  officer  thereof. — Article  1,  section  8. 

LAWS  OF  COXGKE88. 

Congress  has  legislated  upon  the  subject  of  electoral  votes  by  re 
peated  laws,  and  among  other  provisions  has  enacted  that — 

The  electors  of  President  and  Vice-President  shall  be  appointed,  in  each  State, 
on  the  Tuesday  next  after  the  first  Monday  in  November,  in  every  fourth  year  suc 
ceeding  every  election  of  a  President  and  Vice-President. — March  1,  1792.  ch.  8,  sec. 
1,  vol.  1,  p.  239  ;  January  23,  1845,  eh.  1.  vol  5,  p.  721,  Revised  Statutes,  section  131. 

It  shall  be  the  duty  of  the  executive  of  each  State  to  cause  three  lists  of  the 
names  of  the  electors  of  such  State  to  be  made  and  certified,  and  to  be  delivered  to 
tho  electors  on  or  before  the  day  on  which  they  arc  required  to  meet. — Act  March 
1,  1792,  ch.  8,  sec.  3.  vol.  1,  p.  240,  Revised  Statutes,  section  136. 

Each  State  may,  by  law,  provide  for  the  filling  of  any  vacancies  which  may  occur 
in  its  college  of  electors  when  such  college  moots  to  give  its  electoral  vote. — Act 
January  23,  1845,  Revised  Statutes,  section  133. 

"Whenever  any  State  has  held  an  election  for  the  purpose  of  choosing  electors 
and  has  failed  to  make  a  choice  on  the  day  prescribed  by  law,  the  electors  may  bo 
appointed  on  a  subsequent  day  in  such  a  manner  as  tho  Legislature  of  such  State 
may  direct. — Revised  Statutes,  section  134. 

The  electors  for  each  State  shall  meet  and  give  their  votes  upon  the  first  Wednes 
day  in  Dec-ember  in  the  year  in  which  they  arc  appointed,  at  such  place,  in  each 
State,  as  the  Legislature  of  such  State  shall  direct.— Act  March  1,  1792,  Revised 
Staiutts,  section  135. 

Congress  shall  be  in  session  on  the  second  Wednesday  in  February  succeding 
every  meeting  of  the  electors,  and  the  certificates  or  so  many  of  them  as  havo 
been  receiver!,  shall  then  be  opened,  the  votes  counted,  and  the  persons  to  fill  tho 
offices  of  President  and  Vice-President  ascertained  and  declared,  agreeably  to  tho 
Constitution. — Act  March  1,  1792,  Revised  Statutes,  section  142. 

Tho  electors  shall  vote  for  President  and  Vice-President,  respectively,  in  tho 
manner  directed  by  the  Constitution. — Revived  Statutes,  section  137. 

The  electors  shall  make  and  sign  three  certificates  of  all  the  votes  given  by  them, 
each  of  which  certificates  shall  contain  two  distinct  lists,  one  of  tho  votes  for  Pres 
ident  and  the  other  of  tho  votes  for  Vice-President,  and  shall  annex  to  each  of  tho 
certificates  one  of  the  lists  of  the  electors  which  shall  have  been  furnished  to  them 
by  direction  of  the  executive  of  the  State. — Revised  Statutes,  section  138. 


The  elMton  shall  dispose  of  the  certificates  thus  made  by  them  in  the  following 
manner : 

One.  They  shall,  by  writing  under  their  hands,  or  under  the  hands  of  a  majority 
of  them,  appoint  a  person  to  take  charge  of  and  deliver  to  the  President  of  the  Sen- 
ale,  at  the  seat  of  government,  before  tho  first  Wednesday  hi  January  then  next 
ensuing,  one  of  the  certificates. 

Two.  They  shall  foi  thwith  forward  by  the  post-office  to  tho  President  of  the  ben- 
ate,  ut  tho  scat  of  government,  otic  other  of  tho  certificates. 


142 


E LECTOliAL  COMMISSION. 


Tliroo.  They  shrill  forthwith  cause  the  other  of  the  certificates  to  bo  delivered  to 
the  judge  of  that  district  in  which  tho  electors  shall  assemble. — lievised  Statutes, 
section  140. 

The  constitution  of  Oregon  provides : 

In  all  elections  hold  by  tho  people  under  this  constitution,  that  person  or  persons 
who  shall  receive  tho  highest  number  of  votes  shall  bo  declared  duly  elected. — Ar 
ticle  2,  section  16. 

And  again : 

The  powers  of  the  government  shall  bo  divided  into  three  separate  departments : 
tho  legislative,  tho  executive,  including  tho  administrative,  and  tho  judicial;  and 
no  person  charged  with  official  duties  under  one  of  these  departments  shall  exer 
cise  any  of  tho  functions  of  another,  except  as  in  this  constitution  expressly  pro 
vided. 

The  Legislature  of  Oregon  has  also  provided  by  statute  that — 

In  all  elections  in  this  State  the  person  having  tho  highest  number  of  votes  for 
any  otlice  shall  bo  deemed  elected.— General  Laws,  section  40,  page  574. 

On  the  Tuesday  next  after  tho  first  Monday  in  November,  1864,  and  every  four 
yeai  s  thereafter,  there  shall  be  elected  by  the  qualified  electors  of  this  State  as 
many  electors  of  President  and  Viee-Prcsident  as  this  State  may  be  entitled  to  elect 
of  Senators  and  Ilopresontatives  in  Congress. — Genet al  Laws,  section  58,  page  576. 

The  statute  provides  that  abstracts  of  votes  shall  be  sent  to  tho 
secretary  of  state.  And  then  the  mode  of  canvassing  the  votes,  and 
certifying  the  appointment  of  electors,  is  provided  for  as  follows: 

SEC.  60.  Tho  votes  for  tho  electors  shall  bo  given,  received,  returned,  and  can 
vassed  as  the  same  arc  given,  returned,  and  canvassed  for  members  of  Congress. 
Tho  secretary  of  state  shall  prepare  two  lists  of  tho  electors  elected  and  aflix  tho 
seal  of  tho  State  to  tho  same.  Such  lists  shall  bo  signed  by  tho  governor  and  secre 
tary,  and  by  the  latter  delivered  to  the  college  of  electors  at  the  hour  of  thoir  moot 
ing  on  sucli  first  Wednesday  of  December. — General  Statutes,  section  60,  page  578. 

The  canvass  of  votes  for  members  of  Congress  is  provided  for  as 
follows : 

And  it  shall  be  the  dut>*of  the  secretary  of  state,  in  tho  presence  of  the  governor, 
to  proceed  within  thirty  days  after  tho  election,  and  sooner  if  the  returns  bo  all  re 
ceived,  to  canvass  the  votes  for  *  *  *  members  of  Congress ;  *  *  *  and  the 
governor  shall  grant  a  certificate  to  tho  person  having  the  highest  number  of  votes ; 
mid  shall  also  issue  a  proclamation  declaring  the  election  of  such  persons. — Gen 
eral  Statutes,  section  37,  page  574. 

This  proclamation  is  not  required  as  to  electors. 

In  another  portion  of  the  general  statutes  relating  to  the  governor 
it  is  provided  that —  ;,*"• 

He  [the  governor]  shall  grant  certificates  to  members  duly  elected  to  tho  Senate 
of  the  United  States,  and  also  to  members  of  Congress,  which  shall  bo  signed  by 
him  and  countersigned  by  tho  secretary  of  state  under  tho  seal  of  tho  State. — Gen 
eral  Laws,  section  3,  paye  489. 

But  this  does  not  apply  to  electors. 

The  statute  of  Oregon,  in  a  title  relating  only  to  State  officers, 
shows  what  shall  bo  deemed  a  vacancy  in  a  State  office.  It  provides : 

Any  person  who  shall  receive  a  certificate  of  his  election  as  a  momber  of  the 
legislative  assembly,  coroner,  or  commissioner  of  the  county  court,  shall  be  at  lib 
erty  to  resign  such  office,  though  ho  may  not  have  entered  upon  tho  oxecut  ion  of  its 
duties  or  taken  the  requisite  oath  of  office. — General  Statutes,  section  4fi,  jMijn  575. 

Every  office  shall  become  vacant  on  the  occurrence  of  either  of  tho  following 
events  before  tho  expiration  of  tho  torm  of  such  office: 

1.  Tho  death  of  tho  incumbent. 

2.  llis  resignation. 

3.  His  removal. 

4.  His  ceasing  to  be  an  inhabitant  of  the  district,  county,  town,  or  village  for 
whieli  ho  shall  have  been  elected  or  appointed  or  within  which  the  duties  of  his 
office  are  required  to  bo 'discharged. 

5.  His  conviction  of  any  infamous  crime  or  of  any  offense  involving  a  violation 
of  his  oath. 

G.  His  refusal  or  neglect  to  take  his  oath  of  office  or  to  give  or  renew  his  official 
bond  or  to  deposit  such  oath  or  bond  within  the  time  prescribed  by  law. 

7.  Tho  decision  of  a  competent  tribunal  declaring  void  his  election  or  appoiut- 
mont. — General  Statutes,  section  48,  page  576. 

But  the  Oregon  statute  when  providing  for  vacancies  in  the  elect 
oral  college  does  not  limit  vacancies  to  those  arising  from  specific 
causes,  but  declares  that — 

The  electors  of  President  and  Vice-President  shall  convene  at  tho  scat  of  gov 
ernment  on  tho  first  Wednesday  of  December  next  after  their  election,  at  the  hour 
of  twelve  of  tho  clock  at  noon  of  that  day,  and  if  there  shall  be  any  vacancy  in  tho 
office  of  an  elector,  occasioned  by  death,  refusal  to  act,  neglect  to  attend,  or  other 
wise,  tho  electors  present  shall  immediately  proceed  to  fill  by  viva  voce  and  plural 
ity  of  votes  such  vacancy  in  the  electoral  college,  and  when  all  tho  electors  shall 
appear,  or  the  vacancies  of  any  shall  have  been  tilled  as  above  provided,  suchelect- 
prs  shall  proceed  to  perform  the  duties  required  of  them  by  the  Constitution  and 
laws  of  the  United  States. — General  Lawn,  section  59,  page  578. 

Here,  then,  are  all  the  constitutional  and  statutory  provisions  creating 
the  office  of  elector,  the  material  provisions  for  filling  it  and  for  fur 
nishing  evidence  of  title  to  tho  office. 

That  the  office  is  created  by  tho  Constitution  of  the  United  States 
admits  of  no  doubt,  and  is  not  disputed. 

That  tho  electors  are  to  bo  appointed  in  each  State  "  in  such  man 
ner  as  the  Legislature  thereof  may  direct,"  is  equally  certain  and  un 
disputed. 

That,  the  Legislature  of  Oregon  has  provided  for  the  original  ap 
pointment  of  electors  by  popular  vote  is  conceded  on  all  hands. 

That  it  has  provided  for  filling  vacancies  "occasioned  by  death,  re 
fusal  to  act,  neglect  to  attend,  or  otherwise,"  is  declared  by  the  stat 
ute,  and  is  not  disputed, 

EVIDENCE  OF  TITLE  TO  OFFICE  FOR  HAVES  ELECTORS. 

The  Hayes  electors  present  as  evidence  of  title  to  tho  electoral  of 
fice  the  following : 

1.  A  "list  of  the  electors  elected  "for  Oregon,  duly  certified  ;uid 
signed  by  the  secretary  of  state,  with  the  seal  of  the  State  by  him 
affixed  thereto.  Thia  has  every  formality  required  by  law  except 


only  that  the  governor  has  failed  to  comply  with  a  directory  and  im 
material  provision  of  the  statute  requiring  that  it  "shall  be  bigned  by 
the  governor." 

Mr.  Commissioner  EDMUNDS.     What  is  the  date  of  that  ? 

Mr.  Representative  LAWRENCE.     It  is  without  date.    Next : 

2.  A  certified  abstract  of  the  popular  vote  for  electors  as  canvassed 
according  to  law  by  the  secretary  of  state,  dated  December  (i,  187G, 
showing  that  the  Hayes  electors  are  "the  persons  having  the  highest 
number  of  votes,"  on  which  fact  the  statute  says  "  they  shall  bo 
deemed  elected." 

Mr.  Commissioner  EDMUNDS.  Is  that  tho  certificate  of  the  secre 
tary  of  state  as  to  the  number  of  votes  for  electors  ? 

Mr.  Eeprescntativo  LAWEENCE.  That  is  the  abstract  of  votes — a 
different  paper.  The  paper  I  h'rst  referred  to  is  the  certificate  of  tho 
secretary  of  state. 

Mr.  HOADLY.    There  is  no  such  certificate. 

Mr.  Representative  LAWRENCE.  There  is  such  a  paper,  unless  I 
am  greatly  mistaken. 

Mr.  HOADLY.     I  heard  the  papers  road,  and  there  is  no  such  paper. 

Mr.  Representative  LAWRENCE.  I  have  copies  of  what  purport 
to  bo  the  papers.  It  is  a  full  list  of  electors,  showing  tho  number  of 
votes  given  for  each. 

Mr.  Commissioner  ABBOTT.  Is  it  anything  more  than  this  :  a  cer 
tificate  of  the  names  of  tho  persons  voted  for,  showing  tho  votes  given 
to  each  ? 

Mr.  Representative  LAWRENCE.  Yes ;  but  it  is  different  from  the 
tabulated  result. 

Mr.  Commissioner  ABBOTT.    But  no  certificate. 

Mr.  Representative  LAWRENCE.  That  is  a  certificate.  I  shall 
claim  to  this  honorable  Commission  that  that  is  a  certificate  within 
tho  meaning  of  tho  statute  of  Oregon.  That  is  what  I  call  a  certifi 
cate  in  complete  compliance  with  the  statute  of  Oregon,  lacking^only 
tho  unimportant  signature  of  the  governor,  which  cannot  invalidate 
a  paper  made  in  pursuance  of  law. 

Mr.  Commissioner  THURMAN.  Judge  Lawrence,  may  I  ask  you  if 
yon  have  examined  the  statute  of  Oregon  to  see  whether  any  one  has 
a  right  to  demand  an  exemplification  of  any  paper  on  the  files  of  that 
office  I 

Mr.  Representative  LAWRENCE.  I  have  not,  nor  do  I  deem  it 
material.  The  question  is  not,  as  I  respectfully  submit,  whether  any 
one  has  a  right  to  demand  it,  but  does  any  one  come  with  that  as  evi 
dence  of  title?  We  have  it ;  it  is  made  in  pursuance  of  law;  it  is 
made  in  pursuance  of  tho  statute  of  Oregon,  which  authorizes  and 
requires  tho  secretary  of  stato  to  make  these  lists  of  electors.  Then 
wo  have — 

3.  The  certificate  under  the  seal  of  State,  signed  by  the  governor 
and  secretary  of  state,  dated  December  6,  1870,  by  which  the  gov 
ernor  of  Oregon  certifies  that  W.  II.  Odell,  J.  C.  Cartwright,  aud  E. 
A.  Cronin  received  each  a  given  number  of  votes  at  the  election 
November  7,  which  "  being  the  highest  number  of  votes  cast  for  per 
sons  eligible,"  they  "are  hereby  declared  duly  elected  electors." 

4.  The  record  of  the  proceedings  of  Odell,  Cartwright,  and  Watts, 
as  electors,  dated  December  6,  shows  that  Odoll  and  Cartwright  met, 
accepted  the  resignation  of  Watts,  and  they  two  only  being  present, 
they  re-appointed  Watts,  who  accepted,  and  all  three  voted  for  Hayes 
and  Wheeler  for  President  and  Vice- President  and  made  the  proper 
return. 

This,  as  the  Constitution  requires,  is  certified  by  the  electors — made 
absolutely  certain — beyond  contradiction  by  any  other  evidence. 

EVIDENCE  OF  TITLE  TO  OFFICE  FOR  TILDEN  ELECTORS. 

For  the  so-called  "  Tilden  electors"  the  entire  record  shows  as  their 
evidence  of  title  to  office — 

1.  The  certificate  of  tho  governor,  attested  by  the  secretary  of 
stato,  for  Odell,  Cartwright,  and  Cronin,  already  referred  to,  showing 
not  that  Cronin,  as  the  law  requires,  "received  the  highest  number 
of  votes,"  but  only  that  "Cronin  received  14,157  votes,  being  tho 
highest  number  of  votes  cast  at  said  election  (November  7)  for  per 
sons  eligible,"  and  he,  with  Odell  and  Cartwright,  is  "declared  duly 
elected." 

2.  The  record  of  proceedings  of  the  so-called  Tilden  electors  shows 
that  Cronin  assembled  on  tho  Gth  of  December,  "solitary  aud  alone 
in  his  glory"  or  shame,  declared  that  Odell  and  Cartwright  "refused 
to  act,"  whereupon  Crouin  appointed  Miller  an  elector,  and  these  two 
then  appointed  Parker,  when  all  voted,  one  vote  for  Tilden  for  Presi 
dent  aud  Heudricks   for  Vice-Presidcnt,  and  two  for  Hayes  and 
Wheeler  for  the  same  offices. 

Hero,  then,  are  tho  two  sots  of  electors  ;  here  the  whole  evidence 
of  title  to  office ;  here  tho  votes  cast  by  each  for  President  and  Vice- 
Prcsident. 

From  this  it  will  be  seen  the  Hayes  electors  all  claim  title  to  office 
by  original  appointment  or  election  by  the  people  of  Oregon,  and  aa 
to  one  of  them  a  title  after  a  resignation  by  appointment  of  the  re 
maining  electors. 

One  of  tho  Tilden  electors,  Crouin,  claims  title  by  original  appoint 
ment  or  election  by  the  people  aud  the  remaining  two  by  appointment 
to  fill  vacancies. 

TITLE  OF  ODELL  AND  CARTWRIGHT  UNDISPUTED. 

The  one  important  and  indisputable  fact  to  be  noticed  so  far  in 
these  proceedings  is  that  the  title  of  Odell  and  Cartwright,  two  of 


ELECTORAL  COMMISSION. 


143 


the  Hayes  doctors,  is  clear  beyond  question  and  is  not  disputed.  As 
to  these,  elected  by  the  people,  there  are  just  five  provisions  of  law 
relating  to  the  evidence  of  title.  They  are  these  : 

1.  The  act  of  Congress  declares  that — 

It  shall  bo  the  duty  of  the  executive  of  each  State  to  cause  three  lists  of  the  names 
of  the  electors  of  such  State  to  be  made  and  certified  aiid  to  be  delivered  to  the  elect 
ors. 

It  does  not  say  in  terms  that  the  governor  shall  certify  or  sign  the 
lists.  When  it  says  the  governor  shall  "  cause  "  the  lists  to  bo  made, 
1  his  means  that  he,  as  the  officer  charged  with  the  duty  of  executing 
the  State  laws,  shall  cause  the  proper  State  officer  to  make  the  lists 
whether  ho  be  the  officer  designated  by  the  State  law  or  some  other ; 
or  if  no  State  law  direct  the  mode,  then  the  governor  shall  certify. 

2.  The  constitution  of  Oregon  provides  that — 

In  all  elections  *  *  *  that  person  or  persona  who  shall  receive  the  highest 
number  of  votes  shall  bo  declared  elected. 

3.  The  statute  of  Oregon  provides  that — 

In  all  elections  *  *  *  the  person  having  the  highest  number  of  votes  *  *  * 
shall  bo  deemed  elected. 

4.  The  statute  again  provides  that  a  return  of  votes  shall  be  sent 
from  the  several  counties  to  the  secretary  of  state,  and  then — 

It  shall  bo  the  duty  of  the  secretary  of  state,  in  the  presence  of  the  governor — 
But  the  governor  is  a  mere  witness  with  no  power — 
*    *    *    to  canvass  the  votes. 

5.  And  again  the  statute  says : 

The  secretary  of  state  shall  prepare  two  lists  of  tho  electors  elected,  and  affix  the 
seal  of  the  State  to  tho  same.  Such  lists  shall  be  .signed  by  the  governor  and  se-c- 
rotnry,  and  by  tho  latter  delivered  to  the  college  of  electors. 

This  is  the  mode  in  which  Oregon  executes  tho  act  of  Congress. 
The  governor  has  no  power  over  the  canvass  or  the  result  except  to 
attest  what  the  secretary  of  state  certifies  as  mere  matter  of  authen 
tication. 

Now,  Odoll  and  Cartwright  come  with  evidence  of  title  which  satis 
fies  all  these  provisions.  Tho  secretary  of  state  canvassed  the  votes 
of  the  people,  as  shown  by  his  certified  abstract.  Odell  and  Cart- 
wright  had  the  highest  number  of  votes,  and  must,  as  the  constitu 
tion  and  statute  say,  "  be  declared  and  deemed  elected,"  and  they 
have  the  properly  certified  lists  of  election  "  signed  by  tho  governor 
and  secretary  "  under  the  seal  of  State. 

I  say  they  have  these  lists  of  electors  because  they  are  here,  and  it 
matters  not  how  they  came. 

No  law  requires  that  all  the  evidence  of  title  shall  be  transmitted 
in  one  envelope,  nor  that  it  shall  come  with  the  votes  for  President, 
nor  even  that  it  shall  be  transmitted  by  the  electors.  The  mode  of 
transmitting  at  most  could  be  only  directory,  and  tho  manner  is  not 
material. 

All  the  records,  so  far  as  they  contain  lawful  evidence,  may  be  con 
sidered.  (Switzler vs.  Anderson,  2  Bartlett,  374 ;  McCrary,  section  104.) 

Mr.  Commissioner  HOAR.     I  am  sorry  to  interrupt  you. 

Mr.  Representative  LAWRENCE.    Nothing  interrupts  me. 

Mr.  Commissioner  HOAR.  I  want  to  ask  you  whether  that  paper 
which  you  said  was  without  date  appears  to  have  been  sealed  up 
with  tho  other  papers  which  were  sealed  on  the  6th  of  December. 

Mr.  Representative  LAWRENCE.  Undoubtedly.  It  comes  with 
the  papers.  But  even  that  would  not  be  material.  The  provision 
which  requires  papers  to  be  transmitted  by  the  electors  is  directory, 
and  no  matter  how  they  come  they  arc  evidence. 

Mr.  Commissioner  HOAR.  The  point  of  my  inquiry  was  that  at 
least  it  must  have  been  made  as  early  as  tho'Gth  of  December. 

Mr.  Representative  LAWRENCE.  O,  yes ;  it  must  have  been  made 
as  early  as  the  Gth  of  December ;  but  its  date  cannot  be  material.  I 
repeat  that  the  one  important  fact  to  which  I  desire  first  to  call  at 
tention  is  that  the  title  of  two  of  the  Hayes  electors  is  undisputed. 

Mr.  Commissioner  ABBOTT.  Permit  mo  to  ask  whether  tho  certifi 
cate  you  refer  to  states  that  the  secretary  of  state  has  ever  canvassed 
any  votes  and  determined  who  had  been  elected  ? 

Mr.  Representative  LAWRENCE.  It  is  not  necessary  that  ho 
should. 

Mr.  Commissioner  ABBOTT.     I  only  ask  whether  the  fact  is  so. 

Mr.  Representative  LAWRENCE.  The  certified  abstract  of  votes 
by  inference,  if  not  directly.,  shows  that  ho  did  canvass  tho  votes, 
and  there  is  that  certificate  which  satisfied  the  statute*  tho  list  of 
electors  made  by  the  secretary  of  state,  the  only  officer  who  has  power 
to  make  any  paper.  The  governor  has  a  duty,  but  not  a  power  to 
witness  a  paper,  although  made  by  another  officer. 

FIRST  FROPOSITIOX. 

Upon  these  facts,  and  upon  the  law,  this  whole  controversy  may  he 
disposed  of  in  favor  of  the  Hayes  electors  by  a  single  proposition, 
which  is : 

That,  if  the  monstrous  position  could  bo  maintained  that  Cronin  was 
legally  appointed,  yet  he  "refused  to  act,"  "neglected  to  attend" 
with  Odell  and  Cartwright,  his  place  became  vacant,  and  Watts  was 
duly  appointed  to  fill  it. 

This  leaves  no  question  of  eligibility  to  be  considered  and  no  con- 
1  roversy  over  any  question  of  vacancy  by  non-election.  If  this  posi 
tion  is  supported  by  law  it  is  conclusive,  and  it  is  unnecessary  to  go 
beyond  it  to  show,  as  the  fact  is,  that  Cronin  was  not  elected,  and  on 
the  whole  record  is  without  evidence  of  title. 


The  electoral  college  is  charged  with  three  duties:  (1)  to  fill  all 
vacancies,  (2)  to  vote  for  President  and  Vice -President,  and  (3)  to 
make  and  transmit  to  the  President  of  the  Senate  "  distinct  lists  of 
all  persons  voted  for  as  President  and  Vice- President,  which  lists  they 
shall  sign  and  certify."  Here  are  duties  to  do  certain  acts  and  to 
furnish  evidence  of  them. 

The  statute  of  Oregon  provides  that — 

If  there  be  any  vacancy  in  the  office  of  an  elector  occasioned  by  death,  refusal  to 
act,  neglect  to  attend,  or  otherwise,  the  electors  present  shall  lillsuch  vacancy. 

The  electoral  college  is  a  deliberative  body,  as  much  so  as  Congress  ; 
the  single  individual  members,  acting  separately  and  apart  from  all 
others,  can  do  no  official  act,  no  more  so  than  individual  members  of 
Congress,  or  of  a  court,  orof  this  Commission ;  and  tho  record  of  what 
the  college  or  a  majority  of  its  members  does  is  conclusive  evidence, 
and  can  no  more  bo  impeached  aliunde  than  tho  record  of  Congress, 
or  of  a  court,  or  of  this  Commission. 

The  major  part  of  the  electors  present  is  a  quorum  ;  tho  acts  of  a 
quorum  arc  valid  to  decide  when  a  vacancy  has  arisen  and  to  fill  it. 

All  this  I  propose  to  show  from  the  constitution  and  laws,  from  their 
manifest  purpose,  from  the  authority  of  the  courts,  and  from  the 
necessity  of  tho  case. 

1.  The  electoral  college  is  a  deliberative  body.    Tho  Constitution  says  : 
The  electors  shall  meet  and  vote  by  ballot  for  President. 

They  shall  make  distinct  lists  of  all  persons  voted  for  as  President. 
They  shall  sign  and  certify  and  transmit,  sealed,'  to  tho  President  of  the  Senate 
[these  lists.  1 

The  statute  of  Oregon  says : 

The  electors  shall  convene  at  the  seat  of  government.  *  *  "  If  there  be  any 
vacancy  the  electors  present  shall  immediately  proceed  to  fill  by  viva  voce  and  plu 
rality  of  votes  such  vacancy.  *  *  *  Such  electors  shall  proceed  to  perform  tho 
duties  required  of  them. 

Tho  electors  when  convened  are  declared  to  be  the  "electoral  college." 

All  these  acts  require  deliberation,  united  action,  collective  wisdom. 

The  original  purpose  of  the  Constitution  was  that  the  electors  should 
themselves  deliberate  on  and  select  tho  candidates  for  President  of 
their  own  judgment,  without  party  nominations  or  previous  pledges. 

From  all  this  it  is  certain  that  the  electors  must  act  as  a  deliberative 
body, not  as  members  acting  separately  and  apart. 

2.  The  major  part  of  the  electors  who  convene  are  a  quorum  to  fill 
vacancies  and  vote.    As  against  them  the  minority  can  do  nothing. 

The  act  of  Congress  expressly  so  provides : 
If  there  be  a  vacancy  tho  electors  present  shall  fill  it. 

They  are  made  the  solo  judges  to  decide  when  an  elector  has  "  re 
fused  to  act,"  "  neglected  to  attend,"  or  when  a  vacancy  has  arisen 
"  otherwise." 

This  is  so  on  authority.  By  general  parliamentary  law  in  all  deliber 
ative  bodies  of  a  fixed  number,  unless  otherwise  expressly  provided,  a 
majority  is  a  quorum  and  a  majority  of  the  quorum  decides  all  ques 
tions.  This  has  been  the  settled  doctrine  of  the  courts  from  our  earli 
est  history.  The  supreme  court  of  South  Carolina  as  early  as  1821,  in 
an  elaborate  opinion  on  this  subject,  so  determined.  The  court,  after 
reviewing  authorities,  said : 

The  conclusion  then  follows  that  a  majority  mnst  constitute  a  quorum;  *  *  * 
ciple  ot  all  tho  case's  referred  to,  a  quorum  possesses  nil 


, 

and  authority  of  tho  whole."    (Sec.  2,  llutherford,  b.  2,  c.  195  ;  State  vs.  Deliessclino, 
McCord's  South  Carolina  sop.,  02.) 

Dillon,  iu  his  work  on  Municipal  Corporations,  in  discussing  tho 
constitution  and  powers  of  select  governing  bodies  of  a  fixed  number, 
says : 

In  the  absence  of  special  provision,  tho  major  part  of  those  present  at  a  meeting 
of  a  select  body  must  concur  iu  order  to  do  any  valid  act.  * 

And  as  a  general  rule  it  may  bo  stated  that  *  *  where  the  corporate  power 
resides  in  a  select  body  in  the  absence  of  special  provision,  otherwise  a  minority 
of  the  select  body  are' powerless  to  bind  tho  majority  or  do  any  valid  act.  (Vol.  1, 
pp.  333-4,  sec.  220,221.) 

And  again : 

If  tho  major  part  withdraw  so  as  to  leave  no  quorum  tho  power  of  the  minority 
to  act  is  in  general  considered  to  cease.  (Idem,  p.  334,  sec.  221.) 

This  sufficiently  appears  in. Downing  vs.  Rugar,  21  Wendell,  181, 

where  it  is  said  : 
The  rule  seems  to  be  well  established  that  in  tho  exercise  of  a  public  as  well  as 

private  authority,  whether  it  be  ministerial  or  judicial,  all  tho  persons  to  whom  it 

is  committed  must  confer  and  act  together,  unless  thoro  bo  a  provision- 
As  there  is  in  case  of  electors — 

that  a  less  number  may  proceed- 
As  Odell  and  Cartwright  did. 
Whore  the  authority  is  public,  and  tho  number  is  such  as  to  admit  of  a  majority— 

And  Odell  and  Cartwright  were  a  majority— 
that  will  bind  the  minority. 
And  Croniu  was  a  minority,  and  so  is  concluded  by  the  act  of  the 

This  mnst  be  so  on  reason  and  public  policy.  Oregon  is  entitled  to 
three  electors  only.  If  a  controversy  exists  as  to  who  assembled  at 
the  proper  time  and  place,  as  to  who  acted  or  refused  to  act,  it  is 
much  more  reasonable  to  take  the  official  certificate  of  two  than  of 


144 


ELECTORAL  COMMISSION. 


one.  If  a  State  lias  twenty  electors,  it  is  more  reasonable  that 
eighteen  should  certify  two  as  absent  than  that  two  should  certify 
eighteen  absent. 

3.  The  electors  present  are  authorized  to  furnish  evidence  conclusive  of  a 
vacancy  and  of  their  appointment  to  fill  it. 

(a)  This  is  made  so  by  the  Constitution.    It  declares  that  the  elect 
ors — 

Shall  sign,  and  certify,  and  transmit  sealed  *  *  *  to  tho  President  of  the 
Senate  *  *  *  distinct  lists  of  all  persons  voted  for  as  President. 

To  certify  is  to  make  certain.  When  the  electors  certify  their  list 
of  votes  it  is  certain  that  they  are  the  votes,  and  it  must  be  equally 
certain  that  they  have  properly  rilled  vacancies. 

If  this  can  be  contradicted  by  some  one  elector  or  other  evidence, 
then  it  is  not  certain,  it  is  not  certified ;  the  electors  cannot  say,  faciemus 
cerium — we  certify. 

This  rests  upon  the  broad  principle  so  well  understood,  that  it  must 
be  presumed  that  officers  will  do  and  have  done  their  duty. 

Mr.  Commissioner  THURMAN.  May  I  interrupt  you,  without  dis 
turbing  your  argument?  Do  I  understand  your  argument  to  go  to 
this  point :  that  a  majority  of  the  electoral  college  may  try  the  title 
of  a  member  to  a  seat  in  that  college? 

Mr.  Representative  LAWRENCE.  No,  not  by  any  manner  of  means ; 
but  when  the  majority  say  that  electors  are  absent,  are  not  present, 
fail  to  attend,  the  decision  of  the  majority  on  that  question  is  con 
clusive  and  cannot  be  inquired  into.  Like  any  other  election  return, 
it  is  absolutely  conclusive. 

Mr.  Commissioner  THURMAN.  Why,  then,  might  they  not  say 
that  a  man  claiming  to  sit  there  had  no  title  ? 

Mr.  Representative  LAWRENCE.  In  this  case  no  such  question 
arises,  because  they  have  not  said  so.  They  have  only  said  there  were 
but  two  electors  present ;  the  other,  Crouin,  failed  to  attend ;  he  was 
not  there ;  he  did  not  go  at  the  right  time  of  day ;  he  was  not  in  the 
right  building ;  he  made  a  mistake  and  got  into  the  wrong  box.  That 
is  what  they  say,  and  what  they  say  is  evidence,  and  it  is  conclusive 
evidence. 

Mr.  MERRICK.     O,  they  do  not  say  that. 

Mr.  Representative  LAWRENCE.  They  say  that  in  effect ;  they 
say  they  were  the  only  ones  present,  and  Croniu  himself  says  he  was 
not  present  with  them. 

(b)  This  must  be  so  on  principle  and  authority. 

It  is  an  incident  of  the  authority  to  appoint.  (Broom  Legal  Max., 
465;  Martin  vs.  Mott,  12  Wheat.,  19  ;  Allen  vs.  Blunt,  3  Story  C.  C., 
742;  Gould  vs.  Hammond,  1  McAlL,  235;  Noble  vs.  U.  S.,  Dev.,  84.) 
The  electors  are  clothed  with  the  power  to  fill  vacancies.  It  is  within 
the  scope  and  purpose  of  their  powers  to  make  evidence  of  the  ap 
pointment. 

It  is  said  in  a  work  of  high  authority  : 

No  particular  form  of  credentials  is  required.  It  is  sufficient  if  the  claimant  to 
an  office  presents  a  certificate  signed  by  the  officer  or  officers  authorized  by  law  to 
issue  credentials.  *.*•"  If  several  officers  or  persons  are  by  law  required  to  join 
in  such  certificate,  it  is  generally  sufficient  if  a  majority  have  signed  it.— McCrary, 
chap.  4,  p.  149. 

Where  a  duty  is  imposed  by  law  upon  officers  there  is  given  them 
as  an  incident  of  their  duty  the  power  to  do  all  things  necessary  to 
make  it  effectual,  including  the  authority  to  furnish  evidence  of  their 
acts,  and  especially  when,  as  in  this  case,  no  other  evidence  is  pro 
vided  for. 

Broom  says : 

When  the  Crown  creates  a  corporation  it  grants  to  it  by  implication  all  powers  that 
are  necessary  for  carrying  into  effect  the  objects  for  which  it  is  created.— Legal 
tfaxim,  4G5. 

Abbott,  in  his  Digest,  collects  authorities  on  the  subject,  and  says: 
Whenever  a  statute  gives  a  discretionary  power  to  any  person  to  bo  exercised  by 

him  upon  his  own  opinion  of  certain  facts, 'it  is  a  sound  rule  of  construction  that  the 

statute  constitutes  him  the  solo  and  exclusive  judge  of  the  existence  of  those  facts. 

(Martin  vs.  Mott,  12  Wheat,  19  ;  Allen  vs.  Blunt,  3  Story  vs.  C.  C.,  742;  Gould  vs. 

Hammond,  1  McAll,  235 ;  Noble  vs.  United  States,  Dov.,  84. 

But  if  the  evidence  furnished  by  the  electors  is  not  conclusive,  then 
they  are  not,  as  the  law  says,  "the  sole  and  exclusive  judges.  " 

(c)  Usage  has  made  this  the  laiv. 

The  practice  of  nearly  a  century  has  so  determined.  In  no  instance 
has  the  evidence  been  contradicted. 

(d)_  It  is  conclusive  because  it  is  part  of  the  election  return. 

This  Commission  and  the  Houses  of  Congress  are  merely  canvass 
ing  officers  ;  their  sole  power  is  to  "  count"  the  votes. 

Canvassing  officers  cannot  controvert  returns  which  come  with  all 
the  formalities  of  law.  This  is  settled  by  authority,  settled  by  this 
tribunal. 

All  this  must  be  so  on  grounds  of  public  policy. 

Then  upon  the  law,  upon  the  evidence,  it  is  shown  that  Odell  and 
Cartwright  met  at  the  proper  time  and  place  ;  that  Cronin  "  neglected 
to  attend,  refused  to  act "  with  them ;  that  they  filled  the  vacancy 
thereby  created  by  appointing  Watts  ;  that  Odell,  Cartwright,  and 
Watts  voted  for  Hayes  and  Wheeler,  and  these  votes  must  be  counted. 

Hero  I  might  rest  this  controversy. 

But  the  contest  before  this  Commission  is  of  too  much  importance 
to  leave  nncousidered  any  question  that  may  possibly  arise,  and  for 
that  reason  alone  I  proceed  to  show  as  a — 

SECOND  ruorosrnoN 

that  Cronin  was  not  elected,  and  on  the  whole  record  presents  no  sufficient 
evidence  of  title  to  the  electoral  office. 


I.  His  ambiguous  evidence  of  title  is  disproved  by  evidence  of  equal  dig 
nity,  free  from  ambiguity. 

If  it  should  be  conceded  that  the  "  governor's  certificate  of  elec 
tion"  unexplained  could  give  a  prima  facie  title  to  office,  yet  it  is  not 
conclusive. 

It  does  not  certify  that  Cronin,  as  the  law  requires,  received  "the 
highest  number  of  votes."  or  that  ho  is  duly  appointed,  but  only  that 
he  "  received  14,157  votes,  *  *  *  being  the  highest  number  for 
persons  eligible." 

The  averment  astoineligibility  is  a  stamp  of  suspicion,  an  admission 
of  doubt;  it  opens  the  door  for  inquiry.  The  certificate  is  not  and 
does  not  profess  to  be  conclusive  of  the  essential  fact ;  it  equivocates 
in  a  manner  equivalent  to  "  a  negative  pregnant,"  it  is  pregnant  with 
fraud. 

The  effect  of  a  certificate  of  election  is  well  understood. 

When  it  is  necessary,  as  in  this  case,  to  the  canvass  of  votes  for 
President,  the  canvassing  board  must  decide  if  it  is  a  certificate. — 
McCrary' s  Law  of  Elections,  section  82. 

In  a  note  to  page  319  of  Brightly's  Leading  Cases  on  Elections  it  is 
said  of  a  certificate  of  election  : 

If,  however,  the  certificate  upon  its  face  recite  facts  upon  which  the  canvassers 
rely  as  their  justification  and  authority  for  giving  it,  aim  these  facts  show  that  tho 
holder  was  not  duly  elected,  it  may  be  disregarded.  (JIartt  vs.  llarvey,  32,  Barb., 
61.) 

To  this  I  think  I  may  safely  add  that  if  there  be  two  certificates 
of  election,  as  in  this  case,  to  two  different  persons  for  tho  one  same 
office,  and  one  is  sufficient  in  form  and  free  from  suspicion,  it  must 
take  effect  as  against  one  which  on  its  face  carries  doubt  as  to  tho 
fact  it  certifies. 

And  that  is  precisely  the  case  before  us.  Watts  has  a  certificate  of 
election  sufficient  in  form,  the  list  of  electors  certified  to  be  elected 
by  the  secretary  of  state,  under  the  seal  of  the  State,  irregular  m  a 
single  particular — the  attestation  of  the  governor  is  wanting. 

Thestatute  makes  the  secretary  of  state  the  sole  canvassing  officer  to 
ascertain  what  person  has  the  "  highest  number  of  votes."  And  then 
it  provides  that — 

The  secretary  of  state  shall  prepare  two  lists  of  the  electors  elected,  and  affix 
tho  seal  of  the  State  to  the  same.  Such  lists  shall  be  signed  by  the  governor  and 
secretary,  and  by  tho  latter  delivered  to  tho  college  of  electors. 

The  governor  is  intrusted  with  no  power.     He  has  a  duty,  and  tho 
whole  of  this  is  contained  in  eight  words : 
Such  lists  shall  be  signed  by  the  governor. 

The  governor  has  not  signed  the  lists.  But  what  matter  is  that  ? 
The  provision  requiring  him  to  do  so  is  directory.  It  is  not  of  the 
"  essence"  of  the  lists  or  tho  election  they  evidence.  There  is  a  sub 
stantial  compliance  with  the  law  without  his  siguature,  and  all  tho 
authorities  say  this  is  sufficient.  The  want  of  his  name  is  a  mere 
irregularity.  It  is  not  the  evidence,  but  a  mere  attestation  of  the  real 
evidence  of  election  made  and  furnished  by  the  secretary  of  state. 
This  irregularity  cannot  affect  the  evidence  or  defeat  tho  will  of  the 
people. 

McCrary  says : 

The  principle  is  that  irregularities  which  do  not  tend  to  affect  results  are  not  to 
defeat  the  will  of  the  majority ;  the  will  of  tho  majority  is  to  bo  respected  oven 
when  irregularly  expressed. — Law  of  Elections,  sections  127,  128. 

He  cites  Inker  vs.  Com., 20  Pa.  State,  493  :  Carpenter's  Case,  2  Pars., 
540  ;  Pratt  vs.  People,  29  Ills.,  72;  Brightly'Election  Cases,  448—450; 
Keller  vs.  Chapman,  34  Cal.,  635  ;  Sprague  vs.  Norway,  30  Cal.,  173  ; 
Gorham  vs.  Campbell,  2  Cal.,  135  ;  Hardenberg  vs.  Farmer's  Bank,  2 
Green.,  (N.  J.,)  68  ;  Day  vs.  Kent,  1  Oregon,  123  ;  Taylor  vs.  Taylor,  20 
Minn.,  107;  People  vs.  Bates,  11  Mich.,  363  ;  McKenney  vs.  O'Connor, 
28  Texas,  5  ;  Jones  vs.  State,  1  Kansas,  270 ;  Arnold  vs.  Lea,  Clarke 
&  Hall,  601. 

The  whole  law  is  summed  up  in  a  few  words  by  Brightly,  who  says : 
That  a  mere  irregularity  on  tho  part  of  the  election  officers  or  their  omission 
to  observe  some  merely  directory  provision  of  the  law  will  not  vitiate  the  poll  is  a 
point  sustained  by  the  whole  current  of  authorities.  *  »  *  The  conduct  of  the 
election  officers  in  tho  performance  of  the  duties  enjoined  by  law  and  their  observ 
ance  of  the  provisions  of  the  statutes  in  regard  to  tho  recording  and  return  of  tho 
legal  votes  received  by  them  would  seem  to  fall  within  the  description  of  directory 
provisions,  and  any  departure  on  their  part  from  a  strict  observance  of  such  por 
tions  of  tho  election  law  to  be  regarded  as  irregularities  which  do  not  vitiate. 
(People  vs.  Schermorhorn,  19  Barb.,  540 ;  Com.  vs.  Meeser,  44  Pa.  St.,  343 ;  Lancaster 
election,  4  Votes  of  Assembly,  127  ;  Thompson  vs.  Ewing,  1  Breust.,  107  ;  Mann  -vs. 
Cassidy,  1  Br6ust.,  60 ;  Weavers.  Given,  idem.,  157  ;  Gibbons  vs.  Shepherd,  2 Breust., 
74;  Doughty  vs.  Hope,  3  Denio,  249;  Elmendorf  vs.  Mayor,  25  Wend.,  696:  Exparte 
Heath.  3 "Hill,  43  ;  Jackson  vs.  Young,  5  Com.,  269;  Stryker  vs.  Kelly,  7  Hill,  9;  Peo 
ples.  Peck,  11  Wend.,  604  ;  19  Wend.,  143  ;  Smith  on  Statutes,  782,  789.) 

These  provisions  of  law  make  the  lists  of  electors  certified  by  the 
secretary  of  state  evidence — sufficient  evidence.  We  are  not  seeking 
to  vise  evidence  unauthorized  by  law  to  defeat  that  ivhich,  is,  but  wo 
are  asking  to  defeat  that  ivhich  is  in  violation  of  Jaw  by  that  which 
is  in  pursuance  of  law.  Watts  then  comes  with  sufficient  evidence  of 
title. 

In  examining  tho  evidence  of  title  to  office  the  question  is  not  so 
much  what  a  certificate  may  in  mere  words  say,  but  what  is  the  legal 
effect  of  the  facts  lawfully  shown  by  it. 

Let  me  illustrate :  Suppose  a  certificate  of  election  shows  the  vote 
given  for  two  eligible  candidates  to  be  10,000  for  one  and  20,000  for 
another,  and  then  declares  the  minority  candidate  elected,  when  the 
statute  provides  that  the  candidate  having  the  highest  number  of 
votes  shall  be  deemed  elected.  Can  it  be  doubted  that  such  certifi 
cate  would  give  a  title  to  the  majority  candidate  ? 


ELECTORAL  COMMISSION. 


It  says  in  mere  words  the  minority  candidate  is  elected,  but  in  legal 
effect  it  says  the  majority  candidate  is  elected.  To  hold  the  minority 
candidate  as  having  the  title  to  the  office  would  be  to  stick  in  the 
bark  :  Qui  hccrel  in  litcra,  hccret  in  cortice. 

Here,  then,  without  going  back  to  the  abstract  of  votes,  the  Cronin 
certificate  of  election  is  shown  by  sufficient  evidence  to  be  untrue,  and 
so  must  be  rejected. 

2.  Cronin' a  certificate  is  contradicted  by  the  certified  abstract  of  rotes 
and  is  therefore  invalid  as  to  Mm. 

It  is  well  settled  that  it  is  the  election  which  gives  the  right  to  an 
office,  and  not  the  commission  or  certificate  of  election. 

In  People  vs.  Pease,  27  New  York,  55,  it  is  said  : 

It  is  not  the  canvass  or  estimate  or  certificate  which  determines  the  right.  These 
are  only  evidences  of  the  right. 

In  Mansfield  vs.  Moor,  53  Illinois,  428,  it  was  said: 

The  commission  was  evidence  of  the  title,  but  not  the  title.  The  title  was  con 
ferred  by  the  people  and  the  evidence  of  the  right  by  the  law. 

Whatever  may  be  the  rule  in  other  States  the  constitution  and 
statute  of  Oregon  have  limited  the  power  of  the  secretary  of  state 
in  declaring  the  result  of  a  canvass  and  the  governor  in  attesting  it 
so  that  they  cannot,  for  any  cause,  certify  the  election  of  a  minority 
candidate. 

They  give  an  effect  to  the  result  of  the  canvass  which  is  prescribed 
by  law,  and  this  cannot  be  defeated  by  a  certificate  in  violation  of 
law. 

The  final  canvass  is  the  substance,  the  certificate  based  011  it  is  the 
shadow — the  mere  legal  result. 

The  fountain  can  rise  no  higher  than  its  source  ;  the  structure  can 
only  stand  on  its  foundation. 

The  abstract  of  votes  is  higher  in  authority  and  greater  in  effect 
than  any  certificate  founded  on  it. 

If  the  secretary  of  state  should  by  his  certificate  give  it  a  construc 
tion  contrary  to  law,  his  error  may  be  corrected  by  the  law. 

This  is  the  result  which  on  the  facts  arises  from  the  constitution 
and  statute  of  Oregon. 

The  Oregon  statute  requires  the  votes  in  each  county  for  electors  to 
be  returned  duly  certified  to  the  secretary  of  state. 

It  then  provides  that — 

It  shall  be  the  duty  of  the  secretary  of  state  in  the  proaenco  of  the  governor  to 
canvass  the  votes. 

Then  the  constitution  says  : 

That  person  or  persons  who  shall  receive  the  highest  number  of  votes  shall  be  de 
clared  duly  elected. 

And  the  statute  provides  that — 

The  person  having  the  highest  number  of  votes  shall  be  deemed  elected. 

The  constitution  says  the  plurality  candidate  shall  be  declared  duly 
elected.  This  is  a  direction  to  the  secretary  of  state  in  his  canvass. 
But  it  was  foreseen  that  his  certificate  might  not  conform  to  the  actual 
result  of  the  canvass,  and  the  statute  goes  further  and  says  "  the  per 
son  having  the  highest  number  of  votes  shall  be  deemed  elected." 
Where  so  deemed  f  Everywhere.  By  whom  ?  Not  merely  by  the 
canvasser,  but  by  the  entire  public.  This  authorizes  the  officer  to 
assert  his  title  on  the  highest  and  best  evidence  which  shows  who  is 
"  the  person  having  the  highest  number  of  votes." 

This  provision  is  a  remedy  for  such  stupendous  frauds  as  that  at 
tempted  by  the  governor  of  Oregon.  The  same  question  had  been 
made  in  the  Legislature  of  Ohio  in  December,  1848.  and  the  statute 
of  Oregon  intended  to  avoid  it.  The  certificate  of  Cronin  then  is  un 
authorized,  because  disproved  by  the  certified  abstract  of  votes. 

The  result  arises  on  the  record.  A  conclusion  declared  by  law  on 
facts  certified  according*  to  law  cannot  be  annulled  by  a  certificate 
in  conflict  with  law,  made  by  an  officer  whose  duty  it  is  to  act  in 
obedience  to  law.  If  the  canvass  of  votes  and  lists  of  electors,  cer 
tified  by  the  secretary  of  state,  should  show  that  there  were  three 
sets  of  candidates  and  should  certify  the  vote  or  show  which  candi 
dates  "received  the  highest  number  of  votes,"  and  these  officers 
should  certify  in  the  same  paper  that  those  receiving  the  lowest 
number  of  votes  were  elected,  could  this  be  claimed  as  evidence  of 
title  to  office  in  the  candidates  having  the  lowest  number  of  votes  ? 
Such  certificate  would  be  valid  as  to  the  authorized  facts  it  recites  ; 
it  would  be  void  in  stating  a  conclusion  which  the  law  does  not  per 
mit  to  be  drawn.  The  statute  is  mandatory  as  to  the  person  elected. 
It  is  a  universal  rule  of  law  that  any  act  done  in  violation  of  a  man 
datory  law  is  void. 

Mr.  Commissioner  THURMAN.  Do  I  understand  you  to  say  that 
the  certificate  of  the  governor  must  show  the  number  of  votes  given 
to  the  electors  ? 

Mr.  Representative  LAWRENCE.  I  say  that  a  certificate  which 
has  within  it  an  allegation  which  is  equivalent  in  effect  to  a  negative 
pregnant  is  equivocal,  doubtful  on  its  face,  and  when  contradicted 
by  evidence  of  equal  dignity  it  falls.  Besides  that  I  say  that  Cronin 
does  not  come  with  the  certificate  required  by  law  with  separate  lists 
prepared  and  certified  by  the  secretary  of  the'State,  and  that  the  gov 
ernor's  paper  is  not  a  certificate  of  the  secretary  at  all.  "  I,  Grover, 
the  governor,  do  certify,"  not  "I,  the  secretary  of  state."  The  governor 
should  have  attested  the  lists  which  were  given  to  the  Hayes  elect 
ors.  Instead  of  that  he  has  undertaken  to  certify  when  the  law  docs 
not  authorize  him  to  certify  anything.  He  is  merely  to  attest  the  lists 
of  electors,  and  Crouin  is  absolutely  without  title/ 

10 


The  certificates  then  show  the  election  of  Watts.  The  utmost  that 
could  be  claimed  for  all  the  certificates  taken  together  is  that  they 
show  the  election  of  Odell,  Cartwright,  and  Watts  by  a  majority  of 
the  popular  vote,  but  that  the  governor  decided  Watts  ineligible  and  so 
declared  Cronin,  an  opposing  minority  candidate,  elected. 

It  amounts  to  no  more  than  the  expression  of  a  legal  opinion  by  the 
governor  that  on  the  facts  Cronin  is  elected.  But  if  his  legal  opinion 
is  wrong,  if  it  assigns  to  the  facts  an  effect  they  cannot  in  law  have 
then  the  certificates  show  Watts  elected  or,  at  least,  Cronin  not 
elected.  The  legal  opinion  that  he  was.is  disproved  by  other  facts 
stated,  and  effect  must  be  given  according  to  the  real  law,  not  the 
governor's  erroneous  opinion  of  the  law.  His  legal  opinion  may  bo 
rejected  as  surplusage  ;  the  law  rejects  it  on  the  facts. 

The  certificates  all  taken  together  show  that  Watts  was  duly 
elected.  To  illustrate  this,  let  me  suppose  that  a  certificate  had 
been  made  in  the  form  following : 

"The  undersigned,  secretary  of  state  and  governor  of  Oregon,  cer 
tify  as  follows : 

"  The  said  secretary  certifies  that  at  the  election  of  November  7 
for  presidential  electors — 

"  W.  H.  Odell  received  15,206  votes. 

"  J.  W.  Watts  received  15,208  votes. 

"  J.  C.  Cartwright  received  15,214  votes. 

"  Henry  Klippel  received  14,136  votes. 

"E.  A.  Croniu  received  14,157  votes. 

"  W.  B.  Laswell  received  14,149  votes. 

"That  the  foregoing  votes  were,  December  4,  1876,  opened  and 
canvassed  by  the  secretary,  in  the  presence  of  the  governor,  according 
to  law,  and  that  the  foregoing  is  the  result  of  the  votes  cast. 

'  The  said  governor  also  certifies  that  of  said  persons  voted  for,  J. 
W.  Watts  was  ineligible ;  and  the  said  governor  therefore  hereby 
declares — 

"  William  H.  Odell, 

"  John  C.  Cartwrighfr,  and 

"E.  A.  Crouin  to  be  duly  elected  electors  of  said  State. 

"  Dated  December  6,  1876. 

"  LA  FAYETTE  GROVER, 

rT    e  -\  "  Governor. 

"L.  T.  CHAD  WICK, 

"Secretary  of  State." 

Can  it  be  doubted  that  the  legal  effect  of  such  a  certificate  would  be 
to  vest  in  Watts  the  title  to  the  electoral  office?  Clearly  this  must 
be  so.  Now  all  the  certificates  before  the  Commission  show  no  more 
than  this,  and  therefore  they  show  Watts  to  be  legally  elected  with 
out  going  back  of  the  returns  into  evidence  aliunde. 

To  summarize  this  :  the  objections  to  the  votes  given  by  the  "  Til- 
den  electors"  all  resting  on  Croniu's  assumed  evidence  of  title  to  the 
electoral  office,  are  these : 

1.  Cronin  "  refused  to  act  "  with  the  other  electors  duly  appointed, 
or  "  neglected  to  attend,"  and  if  he  was  an  elector  his  office  became 
vacant. 

2.  The  governor's  certificate  of  appointment  is  as  to  Crouiu  shown 
to  bo  unauthorized  and  untrue,  by  evidence  of  equal  dignity  and  legal 
value:  first,  the  list  of  electors  certified  by  the  secretary  of  state,  and, 
second,  the  abstract  of  the  popular  vote. 

3.  While  the  governor's  certificate  shows  two  of  the  Hayes  electors, 
Odell  and  Cartwright,  duly  appointed,  and  the  certified  abstract  of 
votes  prove  the  certificate  as  to  them  to  be  legal  and  authorized,  it  is 
shown  from  the  same  evidence  that,  as  to  Cronin,  the  governor's  cer 
tificate  on  its  face  gives  no  title  to  office  because  it  does  not  certify 
as  the  law  requires  that  he  "received  the  highest  number  of  votes," 
but  only  that  he  recei%Ted  the  highest  number  "  for  persons  eligible." 
As  to  Cronin  it  is  no  better  than  if  it  should  certify  that  he  received 
the  "highest  number  of  votes  given  for  persons  of  color,"  or  the  "high 
est  number  for  persons  of  Chinese  origin,"  or  "the  highest  number 
for  native-born  citizens  of  Oregon." 

4.  Cronin  fails  to  produce  any  certificate  from  the  secretary  of  state 
showing  a  list  of  the  electors  duly  elected.    In  the  governor's  certifi 
cate  the  secretary  of  state  certifies  nothing.     He  merely  as  a  sub 
scribing  witness  attests  the  act  of  the  governor.     There  is  no  escape 
from  this  conclusion  unless  two  principles  be  resolved  in  the  affirma 
tive: 

First,  That  the  governor  had  power  to  ascertain  and  declare  the 
alleged  ineligibility ;  and, 

Second,  That  this  would  render  the  election  of  Watts  void  and  elect 
Crouin,  a  minority  candidate. 

Neither  one  of  these  positions  can  be  maintained. 

This  I  proceed  to  show. 

1.  Neither  the  governor  nor  secretary  of  state  nor  both  combined  have  any 
power  to  inquire  or  decide  whether  Watts  held  an  office  which  rendered  him 
ineligible  as  an  elector. 

(a)  The  governor  is  not  a  canvassing  officer,  and  hence  has  no  power  to 
make  any  inquiry. 

It  is  by  law  made  the  duty  of  the  secretary  of  state  to  canvass  the 
votes  and  make  two  lists  of  the  electors  having  "  the  highest  number 
of  votes."  The  governor  canvasses  nothing,  he  makes  no  certificate. 
His  whole  power  as  to  the  election  and  the  lists  made  by  the  secretary 
of  state  is  given  in  eight  words : 

Such  lists  shall  be  signed  by  the  governor. 


J46 


ELECTORAL  COMMISSION. 


It  is  not  a  power  at  all,  it  is  a  naked  duty,  to  sign  his  name. 

(b)  The  secretary  of  state,  as  a  canvassing   officer,  has  no  such  power. 
The  secretary  of  state  is  the  canvassing  officer.    His  whole  power  is 
given  in  these  words  : 

It  shall  bo  the  duty  of  tho  secretary  of  state  *  *  *  to  canvass  the  votes. 
*  *  *  prepare  two  lists  of  the  electors  elected,  *  *  *  affix  the  seal  of  the 
State,  *  *  *  and  sign  ami  deliver  them  to  the  electors. 

The  power  to  canvass  is  merely  a  power  to  count.  It  was  said  in 
Morgan  vs.  Quackeubush,  22  Barb.,  77,  that  canvassing  officers  "are 
not  at  liberty  to  receive  evidence  of  anything  outside  of  the  returns 
themselves." 

The  whole  law  is  clearly  stated  by  McCrecry,  who  says  of  canvass 
ing  officers : 

The  true  rule  is  this:  They  must  receive  and  count  the  votes  as  shown  by  the 
returns,  and  they  cannot  go  behind  the  returns  for  any  purpose  ,•  and  this  necessarily 
implies  that  if  a  paper  is  presented  as  a  return,  and  there  is  a  question  as  to 
whether  it  is  a  return  or  not,  they  must  decide  that  question  from  what  appears 
upon  the  face  of  the  paper  itself. — Law  of  Elections,  sec.  82. 

He  has  collected  the  numerous  authorities  upon  the  subject,  and, 
among  them  all,  there  is  not  one  to  controvert  this  rule,  except  only 
the  one  casein  Indiana,  of  Gulick  rs.  New. 

The  cases  in  England  and  New  York  concede  no  such  power  to  any 
canvassing  or  executive  officer. 

The  direct  question  now  before  tho  Commission  has  been  decided 
In  State  rs.  Vail,  53  Missouri,  97,  the  facts  were  these  :  Dining  re 
ceived  a  majority  of  the  votes  for  judge,  as  shown  by  the  election  re 
turns,  over  Vail.  'The  secretary  of  state  certified  the  vote  as  given 
to  tho  governor.  Ho  undertook  to  inquire  as  to  the  eligibility  of 
Dining,  and  decided  that  he  was  ineligible  as  under  age  and  other 
wise,  and  issued  a  commission  to  Vail.  The  court  on  quo  warranto  de 
cided  that — 

In  opening  and  casting  up  the  votes  at  an  election  *  *  *  the  secretary  of  state 
[as  a  canvassing  officer]  lias  no  discretion  and  cannot  determine  upon  tho  legality  of 
the  votes,  and  it  is  the  duty  of  the  governor  to  issue  the  commission  in  accordance 
with  the  result  so  ascertained.  All  of  these  officers  act  ministerially  and  not  judi 
cially. 

The  court  say : 

To  allow  a  ministerial  officer  arbitrarily  to  reject  returns  *  *  *  is  to  infringe 
or  destroy  the  rights  of  parties  without  notice  or  opportunity  to  be  heard— a  thing 
which  the  law  abhors  and  prohibits.  *  *  *  The  law  has  provided  [judicial]  tri 
bunals  with  ample  power  to  hear  and  determiue  all  questions,  *  *  where  the 
parties  can  have  a  fair  trial. 

The  governor  *  *  *  where  he  issues  a  commission  *  *  is  simply  per 
forming  a  ministerial  duty  in  which  he  must  necessarily  be  governed  by  the  re 
turns.  *  *  *  He  has  no  moans  of  ascertaining  *  *  *  whether  opposing  can 
didates  are  disqualified.  These  matters  *  *  *  may  bo  inquired  into  elsewhere, 
[in  the  courts.] 

This  doctrine  was  affirmed  in  State  vs.  Townsley,  5G  Missouri,  107 ; 
•where  it  was  held  that — 

In  counting  the  votes  for  a  circuit  judge  neither  tho  governor  nor  secretary  of 
state  has  any  authority  to  go  behind  the  returns. 

In  Common  wealth  rs.  Cluley,  56  Pa.  State,  270;  it  is  said  by  his  honor, 
Judge  Strong,  that  votes  given  for  an  ineligible  candidate  "cannot 
be  rejected  by  the  inspectors  nor  thrown  out  of  the  count  by  the  re 
turn  judges." 

The  reason  is,  the  want  of  power  to  judge  of  ineligibility. 

Where  votes  are  so  thrown  out,  where  any  act  is  done  beyond  law 
ful  power,  it  is  ultra  vires  and  void.  Bouvier  defines  ultra  vires,  as  ap 
plied  to  corporations,  "  acts  beyond  the  scope  of  their  powers,"  and 
says,  "  Such  acts  are  void." 

(c)  Itisnot  pretended  that  any  power  is  given  in  express  terms  to  the 
governor  or  secretary  of  state  to  pass  upon  the  question  of  eligibility. 

But  the  governor  of  Oregon,  in  defending  his  exercise  of  power, 
claims  that  it  exists  as  incidental  to  his  office,  and  ho  quotes  from 
Judge  Cooley,  in  his  work  oil  Constitutional  Limitations,  pages  39, 41, 
as  follows : 

Whenever  any  one  is  called  upon  to  perform  any  constitutional  duty,  or  to  do  any 
act  in  respect  to  which  it  can  be  supposed  that  the  Constitution  has  spoken,  it  is 
obvious  that  a  question  of  construction  may  at  once  arise,  upon  which  some  one 
must  decide  before  tho  duty  is  performed  or  the  act  done.  From  the  very  nature 
of  the  case,  this  decision  must  commonly  be  made  by  tho  person,  body,  or  depart 
ment  upon  whom  the  duty  is  devolved,  or  from  whom  tho  act  is  required.  *  *  * 
It  follows,  therefore,  that  every  department  of  the  Government,  and  every  official 
of  every  department,  may  at  any  time  when  a  duty  is  to  be  performed  be  required 
to  pass  upon  a  question  of  constitutional  construction. 

He  then  assumes  that  the  statute  says  he  "shall  grant  certificates 
to  the  members  duly  elected,"  and  that  hence  he  must  judge  who  is 
elected. 

But  there  is  no  such  statute  as  to  electors.  There  is  as  to  Senators 
and  Representatives  in  Congress.  But  even  as  to  these  he  has  no 
power  to  judge  of  ineligibility.  If  he  had  it  would  not  enlarge  his 
power  as  to  electors,  but  rather  would  show  that  as  to  them  it  did 
not  exist. 

The  incidental  power  which  Cooley  asserts  to  exist  as  applied  to 
governor  must  be  limited  to  executive  power,  and  cannot  be  enlarged 
by  construction  to  include  judicial  poiver. 

In  Commonwealth  vs.  Jones,  10  Bush,  Kentucky  Reports,  726,  it  is 
sufficiently  shown  that  the  governor,  as  a  canvassing  officer,  cannot 
pass  upon  any  question  of  ineligibility.  The  court  held  that — 

Where  the  inquiry  to  bo  made  involves  questions  of  law  as  well  as  fact,  where  it 
affects  a  legal  right  and  the  decision  may  result  in  terminating  or  destroying  that 
right,  the  power  to  be  exercised  and  the  duties  to  be  discharged  are  essentially  in- 
dicial,  and  such  as  cannot  be  constitutionally  delegated  to  or  imposed  upon  execu 
tive  officers. 


That  was  in  a  case  too  where  the  canvassing  officers  had  authority 
to  try  contested  questions. 

The  same  question  in  effect  was  decided  in  Cresar  Griffin's  case,  re 
ported  in  Chief-Justice  Chase's  Decisions,  by  Johnson. 

(d)  The  power  to  judge  of  ineligibility  is  judicial  power  and  there 
fore  cannot  be  exercised  by  the  governor  or  secretary  of  state,  for 
they  have  no  judicial  authority. 

This  results  from  the  inherent  character  of  the  office  of  governor 
and  secretary  of  state. 

The  constitution  of  Oregon  creates  three  separate,  distinct,  co 
ordinate  branches  of  government,  legislative,  executive,  and  judicial. 
It  does  more;  it  expressly  prohibits  the  executive  officers  from  assum 
ing  to  decide  a  question  of  eligibility  by  declaring  that — 

No  person  charged  with  official  duties  under  one  of  these  departments  shall  ex 
ercise  any  of  the  functions  of  another. 

The  construction  which  would  give  to  the  governor  as  incidental 
to  his  office  authority  to  judge  of  the  eligibility  of  candidates  would 
enable  him  to  swallow  up  th"  duties  of  all  other  departments.  It  is 
made  tho  duty  of  the  governor  to  execute  the  laws.  The  laws  re 
quire  the  punishment  of  those  who  are  guilty  of  crime.  But  the  gov 
ernor  cannot  inquire  as  to  the  guilt  of  the  smallest  offender,  though 
the  law  would  not  otherwise  be  executed  as  to  him,  because  the  in 
quiry  \sjitdicial. 

1.  The  governor  had  no  power  to  appoint  an  elector.  This  is  riot  pre 
tended.  As  he  was  utterly  destitute  of  power,  Cronin  cannot  claim 
any  right  as  an  officer  de  facto  by  virtue  of  any  unsupported  act  of 
the  governor. 

An  attempted  appointment  would  be  ultra  vires  and  void.  It  would 
confer  no  color  of  right. 

If  Crouin  claimed  under  such  appointment,  he  would  be  a  mere 
usurper,  and  his  acts  would  be  void. 

"A  mere  usurper  in  office,"  says  McCrary,  "  can  have  no  authority 
and  can  perform  no  valid  official  act."  (Daily  vs.  Estabrook,  1  Purt- 
lett,  section  80,  299.) 

And  now,  to  recapitulate  on  this  point,  the  governor  and  secretary 
of  state  cannot  judge  of  ineligibility  : 

1.  Because  the  power  to  canvass  votes,  as  determined  by  every  re 
spectable  authority,  does  not  reach  back  of  the  returns. 

2.  The  direct  question  as  to  eligibility  has  been  decided  by  courts 
whose  reasoning  is  unanswerable. 

3.  The  power  is  judicial,  and  executive  officers  can  exercise  no  ju 
dicial  power. 

4.  The  constitution  of  Oregon  expressly  prohibits  it  by  declaring 
that— 

The  persons  who  shall  receive  the  highest  number  of  votes  jhall  be  declared  duly 
elected, 

without  regard  to  eligibility,  which,  being  a  judicial  inquiry,  is  left 
to  the  courts. 

5.  The  statute  of  Oregon  expressly  prohibits  it  by  declaring  that — 
Tho  person  having  the  highest  number  of  votes  for  any  office  shall  be  deemed 

elected, 

no  matter  what  the  governor  may,  without  authority,  declare. 

2.  Theineligibility  of  Watts  icould  not  givethd  election,  to  Cronin  aminority 
candidate. 

The  Constitution  of  the  United  States  provides  that — 

Each  State  shall  appoint  "  *  *  electors.  *  *  *  but  no  Senator  or  Eepro- 
sentat  i ve.  or  person  holding  an  office  of  trust  or  profit  under  the  United  States,  shall 
be  appointed  an  elector. 

It  is  a  general  rule  that  if  an  ineligible  person  should  be  elected 
ho  can,  by  a  judicial  proceeding,  by  quo  warranto,  be  ousted  from 
office.  The  fact  that  quo  warranto  will  lie,  shows  that  the  election  is 
not  absolutely  void.  (State  vs.  Boal,  46  Missouri,  528.) 

The  election  is  not  void,  but  at  most  only  voidable. 

The  authorities  are  so  abundant  to  prove  that  aminority  candidate 
is  not  elected  by  the  ineligibility  of  an  opposing  candidate,  the  rea 
soning  so  logical  and  conclusive,  the  consequences  of  so  holding  so 
unjust,  pernicious,  and  against  the  policy  of  our  republican  institu 
tions,  that  I  will  content  myself  with  a  reference  to  some  of  the  au 
thorities  without  commenting  on  the  cases  at  large.  They  hold  tho 
doctrine  that  the  minority  candidate  is  not  elected.  This  has  been 
decided  in  Georgia,  Wisconsin,  Louisiana,  Pennsylvania,  Mississippi, 
and  California,  and  it  has  been  well  said  that  these  decisions  have 
the  stamp  of  unqualified  approval  from  such  distinguished  jurists  as 
Cooley  and  Dillon.  Cooley,  on  Constitutional  Limitations,  page  620, 
8ays: 

If  the  person  receiving  the  highest  number  of  votes  was  ineligible,  the  votes  cast 
for  him  will  still  be  effectual  so  far  as  to  prevent  the  opposing  candidate  being  chosen. 

Dillon,  on  Municipal  Corporations,  volume  1,  page  258,  section 
135,  observes: 

That  when  the  statute  fails  to  declare  that  votes  cast  for  an  ineligible  person  are 
void,  (and  there  is  no  such  statute  in  Oregon,)  the  effect  of  such  person  receiving  a 
majority  of  the  votes  cast  is,  according  to  the  weight  of  American  authority,  and 
the  reason  of  the  matter,  that  a  new  election  must  be  held,  and  not  to  give  the 
office  to  the  qualified  person  having  the  next  highest  number  of  votes. 

He  cites  the  following  cases  :  The  State  vs.  Swearingen  (12  Georgia, 
23;)  State  vs.  Giles,  (1  Chandler,  \Visconsin  112;)  State  vs.  Gartwell, 
(20  Louisiana,  114;)  Cooley  on  Limitations,  620;  McLaughlin  vs.  Sher 
iff  of  Pittsburgh,  (Legal  Journal,  July,  1868;)  opinion  of  the  judges  of 
Maine;  appendix  to  volume  38  of  Reports;  Sanders  vs.  Hayues,  (13 
Cal.,  145;)  State  rs.  Smith,  (14  Wisconsin,  497.) 


ELECTORAL  COMMISSION. 


Since  Dillon  wrote,  in  the  State  of  Mississippi,  in  the  case  of  Sub- 
lett  vs.  Bidwell,  (47  Miss.,  20(5,)  it  was  held  : 

If  the  majority  candidate  is  disqualified  it  docs  not  follow  that  he  who  has  re 
ceived  the  next  highest  vote,  and  is  qualified,  shall  take  the  office. 

In  Fish  rs.  Collins  (21  Louisiana,  289)  it  was  said : 
If  a  competitor  received  a  greater  number  of  lawful  votes  than  the  claimant, 

the  latter  does  not  establish  a  right  to  the  office  by  showing  that  his  competitor  was 

ineligible. 

In  California,  in  1859,  when  the  justices  of  the  supreme  court  were 
Field,  Baldwin,  and  Terry,  in  Sanders  vs.  Haynes,  (13  Cal.,  155,)  the 
exact  question  was  decided.  The  court  said  : 

It  will  be  observed  that  the  point  of  this  defense  is,  that  the  votes  cast  for  Tur" 
ner,  supposing  ho  received  the  highest  number,  were  nullities,  because  of  his  as 
sumed  ineligibility.  But  we  do  not  so  consider ,  although  some  old  cases  may  be  found 
affirming  this  doctrine.  "We  think  that  the  better  opinion  at  this  day  is  that  it  is 
not  correct. 

Our  legislative  precedents  seem  to  be  the  same  way.  Upon  principle,  we  think 
the  law  should  be  so  ruled.  An  election  is  the  deliberate  choice  of  a  majority,  a 
plurality  of  the  electoral  body.  This  is  evidenced  by  the  votes  of  the  electors. 
But  if  a  majority  of  those  voting,  by  mistake  of  law  or  fact,  happen  to  cast  their 
votes  upon  an  ineligible  candidate,  it  by  no  means  follows  that  the  nest  to  him  on 
the  poll  should  receive  the  office.  If  this  be  f  o,  a  candidate  might  bo  elected  who 
received  only  a  small  portion  of  the  votes,  and  who  never  could'have  been  elected 
at  all  but  for  this  mistake.  *  '  *  It  is  fairer,  more  just,  and  more  consistent 
•with  the  theory  of  our  institutions  to  hold  tbe  votes  so  cast  as  merely  ineffectual 
for  the  purposes  of  an  election  than  to  give  them  the  effect  of  disappointing  the 
popular  will  and  electing  to  office  a  mail  whose  pretensions  the  people  had  designed 
to  reject. 

And  from  an  eminent  lawyer  of  that  State,  Hon.  George  Caldwal- 
ader,  I  learn  t!iat  "  after  the  lapse  of  seventeen  years  the  same  ques 
tion  again  came  up  before  the  present  supreme  bench,  and  was 
decided  by  it  in  the  same  way  on  the  13th  day  of  November,  187(5,  in 
the  case  of  Crawford  vs.  Duubar.  The  court,  in  its  opinion,  after 
stating  that  Dunbar,  receiving  the  highest  number  of  votes,  was  not 
elected  because  ineligible,  in  regard  to  the  claim  of  Crawford,  that 
he  should  have  the  office  because  he  had  received  the  next  highest 
number  of  votes,  said  emphatically:  'This  position  cannot  be  main 
tained  ; '  and  then  goes  on  to  approve  and  adopt  the  views  expressed 
in  Sanders  vs.  Haynes,  seventeen  years  before." 

There  are  still  other  American  cases  against  the  doctrine  that  a 
minority  candidate  is  elected:  (Com.  vs.  Cluley,  56  Pa.  St.,  270;  Cor 
liss  Case,  16  American  Law  Register,  N.  S.,  15 ;  Whitman  vs.  Melony, 
10  Cal.,  47  ;  People  vs.  Moliter,  23  Mich.,  341 ;  State  vs.  Vail,  53  Mis 
souri,  97 ;  State  vs.  Gastiuel,  18  La.  An.,  517 ;  Cochran  vs.  Jones,  14 
American  Law  Register,  N.  S.,  222;  McCrary,  Law  of  Elections, 
chapter  5,  sec.  231-235.) 

The  legislative  precedents  generally  hold  the  same  doctrine.  (Mc 
Crary,  Law  of  Elections,  sec.  232;  Smith  vs.  Brown,  2  Bartlett,  395.) 

The  English  rule,  as  stated  by  Cushing,  by  Grant,  by  Angel  and 
Ames,  and  as  shown  by  the  decided  cases,  is  that  the  iueligibility  of 
the  plurality  candidate  does  not  secure  the  election  of  the  minority 
candidate  unless  the  ineligibility  is  proved  to  be  known,  for  it  is 
never  presumed  unless  patent  and  notorious ;  and  in  Queen  vs.  Mayor, 
3  Law  Reports  Q.  B.,  629,  it  was  said: 

It  is  not  enough  to  show  that  the  voter  knew  the  fact  only,  but  it  is  necessary 
to  show  sufficient  to  raise  a  reasonable  inference  that  ho  knew  tbat  the  fact 
amounted  to  a  disqualification.  (King  vn.  Monday,  Cowper,  537 ;  Rex  vs.  Hawk 
ins,  10  East,  211;  Hawkins  vs.  Hex,  2  Dow,  124 ;  Gosling  vs.  Veloy,  7  Adol.  and 
Ellis,  400 ;  Cieridgo  w.  Snyder,  5  Barn,  and  Adol.,  81 ;  Douglas,  396,'  u.  22 ;  Hex  vs. 
Bridge,  1  Wardle  and  Solwyn,  76.) 

The  Indiana  cases  follow  substantially  the  English  rule.  (Gulick 
vs.  New,  14  Ind.,  93;  Carson  vs.  McPhetridge,  15  Ind.,  327;  Price  vs. 
Baker,  41  Ind.,  572.) 

The  rule  in  New  York  is  stated  in  People  vs.  Clute,  50  New  York, 
451,  by  the  court  as  follows: 

The  existence  of  the  fact  which  disqualifies,  and  of  the  law  which  makes  that 


as  to  imply  a  willfulness  in  ac  ing  when  action  is  in  opposition  to  the  natural  im 
pulse  to  save  the  vote  and  make  it  effectual.  He  must  so  act  in  defiance  of  both 
the  law  and  the  fact,  and  so  in  opposition  to  his  own  better  knowledge  that  he  has 
no  right  to  complain  of  the  loss  of  the  franchise,  the  exercise  of  which  ho  has  wan 
tonly  misapplied. 

The  alleged  iueligibility  of  Watts  was  utterly  unknown  to  the  vot 
ers  of  Oregon.  There  is  not  one  case  in  any  court  in  any  country 
which  supports  Cronin  in  his  claim  to  oflice.  Solitary  and  alone  it 
stands  out  in  the  naked  deformity  of  a  huge  iniquity  which  no  man 
tle  of  charity  can  cover. 

Crouin,  then,  had  no  title  to  the  office  of  elector. 

I  now  proceed  to  a  third  proposition  material  to  the  inquiry  now 
before  the  Commission,  which  is: 

THIRD  PROPOSITION. 

Tliat  upon  the  law  and  the  evidence  Watts  was  duly  appointed  an  elector. 

His  appointment  by  Odell  and  Cartwright  is  regular  in  form. 

It  is  attacked  upon  the  ground  that  there  was  no  vacancy  to  fill; 
that  the  ineligibility  of  Watts  rendered  his  election  void ;  that  he  was 
not  an  incumbent  of  the  office,  and  therefore  there  was  no  vacancy, 
but  only  a  case  of  non-election,  and  that  the  statute  of  Oregon  does 
not  provide  for  filling  such  place  by  appointment. 

I  will  maintain — 

First,  that  the  Oregon  statute  does  provide  for  the  case  of  a  non-election; 
and, 


Second,  that  in  law  and  fact  no  such  case  has  arisen,  hut  that  Watts  was 
dull/  elected. 

These  positions  I  will  discuss  in  the  order  I  have  stated. 

1.  The  Oregon  statute  provides  for  filling  a  vacancy  by  non-election. 

The  act  of  Congress  of  January  23, 1845,  passed  before  Oregon  was 
a  State,  declares — 

First.  That  each  State  may  by  law  provide  for  the  filling  of  any  vacancies 
which  may  occur  in  its  college  of  electors  when  such  college  meets  to  givo  its 
electoral  vote ; 

And, 

Second.  When  any  State  has  held  an  election  *  *  *  and  failed  to  make  a. 
choice,  the  electors  may  be  appointed  on  a  subsequent  day  in  such  manner  as  the. 
Legislature  of  such  State  may  direct. 

This  word  "may"  in  each  of  these  provisions  is  by  all  the  anthori-. 
ties  to  be  construed  imperative— shall.  (Supervisors' vs.  United  States, 
4  Wallace,  435.) 

These  provisions  can  give  no  new  power  to  the  Legislature.    The 


vacancy 

by  a  failure  to  elect  on  that  day,  and  for  a  vacancy  occurring  there 
after. 

The  Legislature  of  Oregon  know  these  contingencies,  and  with 
this  law  of  Congress  before  it  provided  for  a  popular  election  of 
electors  on  the  proper  day,  and,  to  meet  both  the  contingencies  I  have 
stated,  provided  by  law  as  follows: 

The  electors  of  President  and  Vice-President  shall  convene  at  the  seat  of  govern-, 
ment  on  the  first  Wednesday  of  December  *  *  *  and  if  there  shall  be  auv  va 
cancy  in  the  office  of  an  elector  occasioned  by  (1)  death,  (2)  refusal  to  act,  (A)  neg 
lect  to  attend,  or  (4)  otherwise,  the  electors  present  shall  immediately  proceed  To 
fill  *  *  *  such  vacancy. 

This  authorizes  an  appointment  in  a  case  of  lion-election ;  there  is 
in  such  case  a  vacancy. 

I  will  present  some  of  the  reasons  why  this  must  be  so. 

(1.)  This  is  a  statute  to  be  liberally  construed.. 

(«)  If  it  does  not  provide  for  a  vacancy  in  case  of  noil-election,  no 
provision  is  made,  and  the  Legislature  of  Oregon  intended  to  disregard 
a  duty  required  by  the  Constitution  of  tlie  United  States;  intended 
to  deprive  Oregon  of  an  electoral  vote;  intended  to  deprive  all  the. 
States  of  their  claim  that  Oregon  should  act  with  her  whole  political 
power.  Sedgwick  says : 

It  is  a  safe  and  wholesome  rule  to  adopt  the  restricted  construction  when  a  more 
liberal  one  will  brine  us  in  conflict,  with  the  fundamental  law,  the  Constitution. 
(People  vs.  Board  of  Education,  13  Barb.,  409.) 

E  conrerso,  when  a  liberal  construction  will  avoid  a  conflict  with 
the  Constitution  and  execute  a  duty  required,  it  must  be  adopted. 

(6)  It  is  a  remedial  statute,  to  he  liberally  construed.  It  provides  a 
remedy  for  the  accident  of  non-election,  death,  and  all  other  cases  of 
vacancy. 

There  can  be  no  question — 

Says  D  warns — 

that  the  words  of  a  remedial  statute  are  to  be  construed  largely  and  beneficially,  so 
as  to  suppress  the  mischief  and  advance  the  remedy. — Dwarris,  page  <»3;i. 

This  is  indorsed  by  Sedgwick,  page  359. 

Broom  says  this  rule  is  adopted  "  to  add  force  and  life  to  the  cure, 
and  remedy  according  to  the  true  intent  of  the  makers  of  the  act  pro 
bono puhlico."  Here  this  rule  is  emphatically  invoked  pro  bono  pub- 
lico.  Its  words  are  fairly  capable  of  a  construction  which  will  secure 
the  public  good.  (State  vs.  Newhall,  3  Dutcher,  197 ;  14  Opinions 
Attorneys-General,  265.) 

2.  The  rule  that  statutes  inpari  materia  are  to  be  considered  tor/ether 
leads  to  the  same  result. 

"  All  acts  in  pari  materia,''  said  Lord  Mansfield,  "  are  to  be  taken 
together." 

This  rule  is  well  known  and  recognized  in  the  country.  (Sedgwick 
247.)  It  enables  courts  to  judge  what  one  provision  of  a  law  means  by 
reference  to  another.  The  Oregon  statute,  in  providing  for  some  va 
cancies  in  local  offices  to  be  filled  by  the  governor  and  the  courts,  lim 
its  the  vacancies  by  enumerating  those  which  arise  from  (1)  death, 
(2)  resignation,  (3)  removal,  (4)  non-residence,  (5)  conviction  of  crime, 
(6)  refusal  to  qualify,  and  (7)  judgment  of  ouster;  vacancies  in  all 
other  cases  are  to  bo  filled  by  popular  vote.  The  appointing  power- 
is  limited,  because  in  derogation  of  popular  suffrage. 

But  when  the  Legislature  provided  for  electors  these  limitations 
are  dropped,  and  it  is  declared  that  a  vacancy  shall  bo  filled,  if  there 
be  any,  "  occasioned  by  death,  refusal  to  act,  neglect  to  attend,  or  other 
wise." 

Here  is  the  broad,  unlimited,  comprehensive  term  "  or  otherwise.'' 
It  cannot  be  said  that  this  is  only  a  provision  for  vacancies  arising 
from  death,  refusal  to  act,  neglect  to  attend,  and  other  like  cases. 
Here  is  no  case  for  the  application  of  the  maxim  noscitur  a  sociisf 
because  this  cannot  limit  the  rules  of  construction  to  which  I  have 
already  referred.  They  apply  to  this  case,  and,  if  so,  no  other  rule 
can  overrule  them. 

But  here  is  clearly  no  case  for  the  application  of  the  maxim  noscitur 
a  sociis.  The  statute  does  not  say  that  vacancies  may  be  filled  in 
cases  of  "  death,  refusal  to  act,  neglect  to  attend,  and  other  Wee 
cases,"  but  it  says  >' or  otherwise." 

"  Otherwise "  cannot  be  in  similar  cases,  but  in  dissimilar  cases. 


148 


ELECTORAL   COMMISSION. 


There  can  be  no  similar  cases.     There  is  nothing  like  death,  or  refusal 
to  ;>ct,  or  refusal  to  Attend,  which  could  create  a  vacancy. 

The.  statute  regulating  electors  is  special  and  applicable  to  that 
particular  subject.  By  a  well-known  rule  of  construction  it  would 
control  any  general  statute  as  to  vacancies.  And  it  employs  words 
other  and  different  from  the  general  statute  to  give  it  a  broader, 
wider,  unlimited  scope. 

3.  The  rule  that  statutes  arc  to  'be  construed  according  to  the  intention  of 
the  Legislature,  leads  to  the,  same  results. 

It  must  be  presumed  the  Legislature  intended  to  provide  for  every 
contingency.  A  want  of  skill  is  not  to  be  presumed.  To  admit  a 
casus  omissus  is  to  impute  to  the  Legislature  ignorance,  or  neglect  of 
duty,  or  both.  This  cannot  be  justified.  A  casus  omissus  is  odious. 

Attorney-General  Staubery,  in  discussing  the  power  of  the  Presi 
dent  to  fill  vacancies,  said  the  policy  of  the  Constitution  was  clear 
that  "  there  shall  be  no  cessation,  no  interval  of  time  when  there  may 
be  an  incapacity  of  action."  (12  Opinions,  3(5.) 

The  same  policy  was  understood  by  the  Legislature  of  Oregon,  and 
the  same  policy  requires  a  const  ruction  now  which  shall  not  leave  the 
ollice  of  elector  incapable  of  act  ion  at  the  appointed  time. 

4.  Tlif  language  employed  gives  the  most  plenary  power  to  appoint  in  case 
of  mcaiK-y  by  non-election. 

The  power  to  appoint  is  given  ''if  there  shall  be  any  vacancy  by 
dca'h,  refusjil  to  act,  neglect  to  attend,  or  otherwise." 

Worcester  defines  "  vacancy"  for  legal  purposes: 

The  state  of  a  post,  office,  or  employment,  when  destitute  of  and  wanting  an  in 
cumbent  ;  a  place  or  otlico  which  is  empty  or  iiot  tilled. 

Johnson : 

State  of  a  post  or  employment  when  it  is  unsupplied. 

Bouvier : 

A  place  which  is  empty. 

When  the  Constitution  creates  the  office  of  elector,  and  fixes  the 
number  three  for  Oregon,  and  only  two  are  elected,  and  the  law  re 
quires  <<ne  more,  is  not  this  one  "wanting  an  incumbent,"  '''empty," 
"  not  tilled  ?"  If  so,  there  is  a  vacancy,  or  these  philologists  are  mis 
taken. 

The  law  says : 

If  there  shall  be  a  vacancy  by  death,  refusal  to  act,  neglect  to  attend,  or  other 
wise.. 

Webster  defines  "  otherwise,"  "  in  a  different  manner,"  "  by  other 
causes,"  '•  in  other  respects." 
The  statute  may  be  read,  then,  as  if  it  said  : 

If  there: shall  be  a  vacancy  by  death,  refusal  to  act,  neglect  to  attend,  or  "in  a 
different  manner,"  "  by  other  causes,"  "in  other  respects." 

This  would  cover  a  case  of  non-election. 

Philology  is  with  us,  reason  is  with  us,  justice  is  with,  us,  common 
sense  is  with  us. 

5.  The  authoriti/  of  the  courts  is  conclusive  in  favor  of  this  result. 

The  case  of  The  State  vs.  Adams,  2  Stewart's  Alabama  Reports,  231, 
by  reason  of  its  ability,  research  and  sound  law,  is  placed  by  Brightly 
in  bis  leading  Cases  on  Elections,  page  286.  A  part  of  the  syllabus 
is  this: 

A  failure  to  elect  creates  a  vacancy,  which  can  be  filled  by  executive  appointment. 

Two  candidates  for  sheriff  received  an  equal  number  of  votes,  and 
the  governor  filled  the  vacancy.  The  authority  of  the  governor  is 
found  in  these  words  of  the  constitution: 

Should  a  vacancy  occur  subsequent  to  an  election,  it  shall  be  filled  by  the  gov 
ernor,  as  in  other  cases. 

The  court  say  : 
The  whole  object  of  the  section--. 
Of  the  constitution  quoted — 

is  to  secure  the  means  by  which  offices  of  this  description  throughout  the  State 
shall  be  filled. 

*  *  ***** 

The  convention  could  make  no  provision  by  which  the  office  would  be  at  all  times 
filled  by  the  people;  there  might  bo  vacancies,  and  as  it  would  require  time  to  fill 
such  oflices  by  the  people,  it  was  necessary  that  the  duties  of  the  office  should  be 
discharged  in  the  mean  time. 

The  convention  therefore  intended  to  provide  for  filling  the  office  by  an  election 
in  the  first  instance,  and  a  vacancy  by  executive  appointment  when 'it  occurred. 
They  took  it  for  granted  that  elections  would  always  be  hold,  *  *  *  and  they 
proceeded  to  provide  a  mode  of  appointment  ill  the  event  of  the  election  by  the 
people  not  effecting  the  object  of  providing  a  sheriff.  *  *  *  This  construction, 
and  no  other,  completely  fulfills  the  intention  of  the  constitution.  Should  they 
fail  to  elect  a  sheriff  by  being  divided  as  to  their  choice,  the  general  election  ter 
minates,  and  a  vacancy  in  the  office  of  sheriff  takes  place. 

In  State  vs.  City  of  Newark,  3  Butcher,  185,  it  was  held  that — 
A  law  which  confers  power  to  supply  by  appointment  a  place  vacated  by  death 
or  disability  authorizes  an  appointment  to  be  made  where  the  vacancy  is  occa 
sioned  by  resignation. 

The  Attorney-General  has  decided  that — 

In  the  event  of  this  disability  or  death  of  a  surveyor,  where  there  is  a  power  to 
fill  a  vacancy,  a  resignation  creates  a  vacancy. — 14  (Opinions,  2G4. 

The  same  doctrine  -was  held  in  State  ex  rcl.  Attorney-General  vs. 
Irwin,  5  Nevada,  111.  The  constitution  of  Nevada  provides  that — 

When  any  office  shall,  from  any  cause,  become  vacant,  and  no  mode  is  provided 
by  the  constitution  and  laws  for  filling  such  vacancy,  the  governor  shall  have 
po'-rer  to  fill  such  vacancy. 

The  Legislature,  by  act  of  February  23,  1869,  which  took  effect 
April  1,  1869,  created  a  ne\v  county,  requiring  county  officers.  The 


governor  appointed  a  sheriff  for  the  county,  and  his  right  to  tho 
office  was  inquired  of  by  quo  warranto,  upon  the  ground  that  there 
was  no  vacancy  which  the  governor  could  fill.  The  supreme  court 
held  there  was  a  vacancy,  which  was  properly  filled,  and  quoted, 
with  approval,  the  language  of  the  supreme  court  of  Indiana  in 
Stocking  vs.  State,  7  Indiana,  329  : 

There  is  no  technical  nor  peculiar  moaning  to  the  word  "  vacant "  as  usfd  in 
the  constitution.  It  means  empty,  unoccupied.  As  applied  to  an  office  without  an 
incumbent,  there  is  no  basis  for  the  distinction  urged,  that  it  applies  only  to  offices 
vacant  by  death,  resignation,  or  otherwise.  An  existing  office  without  au  incum 
bent  is  vacant,  whether  it  bo  a  new  or  an  old  one.  A  new  house  is  as  vacant  as  one 
tenanted  for  years,  which  was  abandoned  yesterday. 

In  Stocking  vs.  State,  7  Indiana,  326",  it  is  shown  that  tho  Legisla 
ture  created  a  new  judicial  circuit  for  which  the  governor  appointed 
a  judge  under  section  18,  article  5,  of  tho  constitution,  which  pro 
vides  that  the  governor  shall,  by  appointment,  fill  a  vacancy  in  the 
office  of  judge  of  any  court;  and  it  was  held  that  it  was  competent  for 
the  governor  to  appoint  a  judge  "to  hold  his  office  until  a  judge" 
should  be  elected. 

In  People  vs.  Parker,  37  California,  050,  it  was  said  by  Spraguc, 
Justice,  in  his  opinion  defining  the  term  "  vacancy :  " 

It  not  only  includes  vacancies  in  terms  of  office  which  have  been  partially  filled 
by  au  incumbent,  but,  includes  all  offices  and  terms  of  ollice,  constitutional  and 
statutory,  having  no  dnju.ru  incumbent,  either  by  reason  of  a  statutory  vacancy  or 
by  reason  of  I  ho  existence  of  an  office  or  term  of  office  for  the  incumbency  of  which 
no  person  has  been  legitimately  designated. 

Crockett,  Justice,  remarked : 

A  vacancy  in  an  office  begins  when  there  ceases  to  bo  an  incumbent  to  fill  it,  and 
it  continues  as  long  as  there  is  no  incumbent. 

The  California  cases  hold  that  tho  power  to  fill  a  "vacancy  occur 
ring  from  any  cause"  gives  authority  to  fill  vacancies  caused  by  tho 
failure  of  the  people  to  elect. 

Chief- Justice  FIELD,  now  of  this  Commission,  in  his  learned  opinion 
in  The  People  vs.  Whitman,  10  California  Reports,  48,  denied  that  an 
officer  holding  beyond  a  term  "until  his  successor  was  elected  and 
qualified"  prevented  a  "vacancy."  He  said: 

For  many  of  tho  most  responsible  and  important  offices  in  the  State  there  can 
bo  no  election  except  to  fill  a  vacancy  or  for  a  full  term,  and  if  a  vacancy  cannot 
exist  by  a  failure  of  a  person  to  qualify,  whether  such  failure  arises  from  death, 
acceptance  of  an  appointment  under  the  Federal  Government,  or  resignation  in 
advance  of  the  right  to  the  office — and  the  reasons  assigned  in  the  present  case  will 
apply  to  any  of  those  causes — it  would  often  happen  that  weak  and  incompetent 
men,' for  whom  not  a  vote  could  bo  obtained  from  tho  people,  would  retain  for  long 
terms  positions  of  great  trust  and  power,  to  the  serious  detriment  of  tho  public 
interests. 

But  it  is  said  that  the  supreme  court  of  Rhode  Island  decided  in 
November  last  that  ineligibility  avoids  an  election  and  that  in  such 
case,  with  or  without  resignation,  there  is  no  vacancy.  (10  American 
Law  Register,  N.  S.,  15.)  But  the  court  decided  no  such  general 
question.  The  court  held  that  these  facts  did  not  create  such  a  va 
cancy  as  is  provided  for  in  the  peculiar  statute  of  that  State.  Its 
language  is : 

If  any  electors  chosen  asaforesaid  shall,  after  their  said  election,  (1 )  decline  the  said 
office  or  (2)  bo  prevented  by  any  cause  from  serving  thereon,  the  other  electors 
when  met  *  *  *  shall  fill  such  vacancies. 

Here  the  power  is  not  to  fill  all  vacancies,  but  such  vacancies: 
vacancies  of  electors  who  had  been  actually  chosen,  vacancies  only  in 
two  specified  cases:  (1)  when  a  duly  appointed  elector  declines  to  act 
and  (2)  when  such  elector  is  prevented  from  serving  by  sickness  or 
other  causes.  The  Oregon  statute  gives  a  broader  power,  a  power  to 
fill  vacancies  arising  in  any  manner;  not  in  two  specified  cases,  but  in 
all  cases. 

There  is  a  class  of  cases  in  which  some  courts  have  held  that,  when 
an  officer  is  elected  for  a  given  term,  "  and  until  a  successor  is  elected 
and  qualified,"  in  case  of  a  non-election  at  the  expiration  of  tho  term, 
there  is  no  vacancy,  because  by  force  of  express  provision  the  incum 
bent  continues.  (Brightly,  670  ;  Com.  vs.  Hanley,  9  Pa.  St.,  513  ;  Com. 
vs.  Baxter,  27  Pa.  St.,  444  ;  State  vs.  Cobb,  2  Kansas,  32;  State  vs. 
Jenkins,  43  Mo.,  201 ;  State  vs.  Robinson,  1  Kansas,  17  ;  State  vs.  Ben 
edict,  15  Minn.,  199 ;  McCrary  on  Elections,  page  170,  section  236 ; 
Stratton  vs.  Oatlaud,  28  Cal.,  51 ;  People  vs.  Stratron,  28  Cal.,  382  ; 
People  vs.  Tilton,  37  Cal.,  614  :  Contra.  People  vs.  Reed,  6  Cal.,  288; 
People  vs.  Mizner,  7  Cal. ,524  ;  People  vs.  Parker,  37  Cal.,  639.)  These 
cannot  affect  the  question  I  am  now  discussing. 

The  Constitution  of  the  United  States  provides  as  to  Senators 
that— 

If  vacancies  happen  by  resignation  or  otherwise  during  the  recess  of  the  Legisla 
ture  of  any  State,  the  executive  thereof  may  make  temporary  appointments  until 
the  next  meeting  of  the  Legislature. — A'i  t.  1,  sec.  3. 

It  has  been  held  that  this  does  not  authorize  an  appointment  in  a 
case  where  the  Legislature  has  failed  to  elect.  But  this  rests  on  two 
grounds  not  applicable  to  the  case  of  electors :  first,  that  the  word 
"  happen  "  limits  the  power  to  cases  where  there  has  been  an  incumbent, 
and  that  a  restrictive  rule  of  interpretation  applies,  because  the  Leg 
islature  can  always  be  convened,  and  the  goveruorshould,  on  grounds 
of  public  policy,  have  no  occasion  for  refusing  to  call  a  session  thereby 
to  magnify  his  own  power.  (Story,  Const.,  sec.  1559;  McCrary,  171, 
sec.  237  ;  Clarke  &  Hall,  871.) 

I  submit,  then,  to  this  honorable  Commission,  that  if  there  was  a 
case  of  non-election  there  ivasa  "vacancy"  which Odell  and  Cartwright 
could  and  did  lawfully  fill. 


ELECTORAL  COMMISSION. 


149 


I  now  proceed  to  show — 

Second,  that  Watts  was  elected ;  that  he  became  de  facto  an  elector, 
if  not  dejure;  that  the  acts  of  such  an  officer  are  valid,  and  that  his 
resignation  created  a  vacancy  which  was  properly  filled  by  his  re-ap 
pointment. 

It  has  already  been  shown  that  Watts  received  a  majority  of  the 
popular  vote  and  that  he  presents  sufficient  evidence  of  title  to  the 
office. 

On  these  facts  he  was  lawfully  elected,  for  reasons  some  of  which  I 
will  state : 

1.  The  constitution  and  statute  of  Oregon  in  express  terms  declare 
that  he  "  having  the  highest  number  of  votes  shall  bo  declared  and 
deemed  elected."    The  policy  of  the  statute  is  to  secure  officers  with 
out  an  interregnum. 

2.  The  disqualifying  clause  of  the  constitution  is  directory,  not  man 
datory. 

The  constitution  does  not  say  that  "a  person  holding  an  office  of 
trust  or  profit"  shall  not  hold  the  office  of  elector,  but  it  directs  the 
people  who  vote  in  the  exercise  of  their  duties.  It  prescribes  a  rule 
of  public  policy,  but  noi  a,  mandatory  prohibition  on  the  person  appointed. 

Lord  Mansfield  declared  that  those  provisions  are  mandatory  which 
relate  to  "  circumstances  which  are  of  the  essence  of  a  thing  required 
to  be  done"  while  others  are  directory.  (Rex.  vs.  Loxdale,  1  Barr.,  447.) 

The  appointment  is  the  essence  of  the  thing  required  to  be  done,  the 
qualifications  of  the  candidate  are  non-essentials,  or  at  least  are  not 
the  essence  of  what  is  to  bo  done. 

3.  This  question  is  determined  by  the  authorities.    In  St.  Louis  County 
vs.  Sparks,  10  Missouri,  121,  the  court  say : 

A  statute  prescribing  qualification  to  an  office  is  merely  direc'orit,  and  although 
an  appointee  does  not  possess  the  requisite  qualification  hia  appointment  is  not 
therefore  void  unless  it  is  so  expressly  enacted.  (20  Louisiana  An.,  114;  People  vs. 
Cook,  14  Barb. ,259:  Grecnleaf  vs.  Low,  4  Denio,  1C8  ;  Weeks  vs.  Ellis,  2  Barb., 
324;  Keeser  vs.  McKisson,  2  liawle,  139  ;  MeCrary  on  Elections,  sec.  7ri.) 

In  Commonwealth  vs.  Cluley,  5(3  Pa.  State  Reports,  270,  it  is  shown 
that  Cluley  received  a  majority  of  votes  as  a  candidate  for  sheriff 
against  McLaughlin,  the  minority  candidate.  McLaughlin  instituted 
quo  u-arranto  proceedings  to  oust  McCluley,  on  tho  ground  that  lie  was 
ineligible  by  reason  of  having  held  the  office  previous  to  this  election 
as  long  as  the  constitution  permitted.  His  Honor  Judge  STRONG,  now 
of  this  Commission,  in  deciding  the  case,  said : 

The  votes  cast  at  an  election  for  a  person  who  is  disqualified  from  holding  an 
office  are  not  nullities  ;  they  cannot  bo  rejected  by  the  inspectors,  nor  thrown  out 
of  the  count  by  the  return'  judges :  tho  disqualified  person  is  a  person  still  and 
every  vote  thrown  for  him  is  formal. 

In  Saunders  vs.  Haynes,  13  California,  page  153,  the  court  say  : 

It  will  be  observed  that  the  point  of  this  defense  is  that  the  votes  cast  for  Turner, 
supposing  he  received  the  highest  number,  were  nullities  because  of  his  assumed 
incligibility ;  but  wo  do  not  so  consider.  Although  some  old  cases  may  bo  found 
affirming  this  doctrine,  we  think  that  tho  better  opinion  at  this  day  is  that  it  is  not 
correct. 

4.  If  Watts  was  ineligible  his  election  and  induction  into  office 
made  him  an  officer  de  facto,  and  his  acts  as  such  are  valid. 

The  courts  have  met  directly  the  question  whether  the  acts  of  offi 
cers  can  be  declared  invalid  because  not  duly  elected,  and  it  is  now 
undisputed  law  that,  if  a  person  comes  into  office  by  color  of  legal 
appointment  or  election,  he  is  an  officer  de  facto,  his  acts  in  that  ca 
pacity  are  valid  and  effectual  when  they  concern  the  public  and  third 
persons,  although  it  may  appear  he  has  no  legal  or  constitutional 
right  to  the  office.  His  official  acts  are  as  valid  as  those  of  an  officer 
de  jure,  and  they  cannot  be  invalidated  by  any  inquiry  or  evidence 
back  of  his  certificate  of  election. 

This  doctrine  has  been  deemed  so  essential  to  the  public  interest 
that  persons  declared  ineligible  by  law  have  nevertheless  been  re 
garded  as  officers  de  facto  and  their  official  acts  valid  when  done  under 
color  of  legal  appointment. 

The  law  is  so  well  settled  upon  this  subject  that  I  will  content  my 
self  with  areference  to  authorities  without  reading  them.  In  McGregor 
vs.  Balch,  14  Vermont,  428,  it  was  held  that  although  a  postmaster  was 
ineligible  to  be  elected  justice  of  the  peace,  yet  having  been  elected 
and  acting  under  color  of  office  he  was  a  justice  of  the  peace  de  facto, 
and  his  acts  were  valid  as  to  the  public  and  third  persons. 

In  Baird  vs.  Bank  of  Washington,  11  Serg.  and  R.  Pa.,  414,  the  court 
say: 

The  principle  of  colorable  election  holds  not  only  in  regard  to  the  right  of  elect 
ing  but  of  being  elected.  A  person  indisputably  ineligible  may  be  an  officer  de 
facto  by  color  of  election.  (Pritchett  vs.  People,  1  Oilman,  529  ;  People  vs.  Amnions, 
5  Gilnian,  107;  cases  collected  in  Chaso's  Decisions  by  Johnson,  4C2,  whore  sco 
Caesar  Griffin's  case.) 

In  Saint  Louis  County  vs.  Sparks,  10  Missouri,  121,  tho  court  say : 

When  the  appointing  power  has  made  an  appointment  and  a  person  is  appointed 
who  has  not  the  qualifications  required  by  law,  the  appointment  is  not  therefore 
void.  Tho  person  appointed  is  de  facto  an  o'fficer.  His  acts  *  *  *  are  valid  and 
binding. 

To  the  same  effect  is  Knight  vs.  Wells,  Lutwych,  508 ;  16  Vine's 
Abridgment,  114 ;  Bean  vs.  Tnompsou,  19  New  Hampshire,  115 ;  Mc- 
Crary  on  Elections,  sec.  79. 

The  postmasters  who  were  appointed  as  electors  in  1836,  although 
ineligible,  voted  for  President,  and  their  right  to  do  so  was  so  far  con 
ceded  that  no  complete  inquiry  was  made  of  the  facts.  (House  Mis 
cellaneous  Document  13,  second  session  Forty-fourth  Congress,  p.  71.) 

Tho  Houses  of  Congress  have  determined  that  the  acts  of  officers 


dc  facto  are  valid  for  all  purposes  of  an  election.     (Barnes  vs.  Adams. 
2  Bartlett,  7(JO;  McCrary,  sec.  79.) 

Many  laws  have  been  passed  in  Congress  by  the  casting  votes  of 
members  who  were  subsequently  declared  not'  legally  elected.  But 
the  laws  they  made  by  their  votes  have  always  been  •  eld  valid. 

The  same  may  be  said  of  the  laws  in  almost  every  State  in  the 
Union.  Judgments  have  been  rendered  in  the  courts  by  judges  who 
were  subsequently  ousted  from  office  on  quo  warranto  as  not  legally 
elected,  but  their  judgments  still  stood  as  valid  and  unquestioned. 

A  large  part  of  the  land  titles  in  many  of  the  States  depends  on 
official  acts  of  persons  ousted  from  office  as  not  legally  elected,  but 
the  titles  are  not  thereby  disturbed.  To  overturn  all  this  law  is  to 
destroy  the  foundations  of  society,  the  title  to  property,  the  obliga 
tions  of  the  domestic  relations,  aud  convert  tho  laud  into  a  pande 
monium. 

Tho  ineligibility  of  Watts,  then,  did  not  render  his  election  void. 
He  was  an  elector  de  facto  when  ho  did  any  official  act.  As  there  was 
then  no  vacancy  it  was  impossible  that  Cronin  could  be  at  the  same 
time  an  elector  de  jure  or  de  facto. 

Watts  did  act  under  his  election.  He  resigned,  and  that  was  an  offi 
cial  act.  Ho  must  have  entered  on  tho  office  in  order  that  he  might 
resign. 

The  record  shows  sufficiently  that  he  acted  in  the  organization  of 
the  electors,  and  after  that  absented  himself,  resigned,  was  re-ap 
pointed,  again  appeared,  and  acted. 

His  title  to  office  is  twofold:  an  appointment  by  the  people,  shown 
in  evidence  by  the  lists  of  electors  certified  by  the  secretary  of  state, 
and  an  appointment  by  the  remaining  two  electors,  whose  title  to 
office  is  clear  and  unquestionable. 

From  all  this  it  is  shown  that  Watts  was  duly  appointed  an  elector 
and  that  the  votes  cast  by  Odell,  Cartwright,  and  Watts  for  President 
and  Vice-Presideut  are  the  votes  provided  for  by  the  Constitution. 
This  result  is  not  only  sanctioned  and  sanctified  by  law,  but  it  is  still 
further  sanctified  by  the  gratifying  fact  that  it  carries  out  the  pur 
pose  of  our  republican  institutions  by  giving  effect  to  the  will  of  the 
people  of  Oregon. 

If  the  vote  of  Cronin  could  be  counted  for  President  and  Vice- 
President  it  would  rob  the  people  of  Oregon  of  tho  highest  political 
right  they  have ;  it  would  rob  tho  people  of  the  whole  Republic  of 
their  lawful  choice  of  President  and  Vice-Presideut,  and  bring  shame 
and  dishonor  upon  our  institutions.  It  needs  no  expose  of  any  at 
tempted  bribery  to  render  this  purpose  effectual,  to  secure  for  it  the 
detestation  of  mankind  and  the  execration  of  history. 

Mr.  Commissioner  .EDMUNDS.  Mr.  President,  I  move  that  the 
Commission  take  a  recess  until  seven  o'clock,  to  meet  in  the  Senate 
Chamber. 

Mr.  Commissioner  ABBOTT.  I  move  that  we  now  adjourn  until 
ten  o'clock  to-morrow  morning. 

Mr.  Commissioner  THURMAN.  I  hope  the  motion  will  be  with 
drawn  for  a  moment  until  we  decide  whether  we  shall  extend  tho 
time  for  the  argument  by  counsel. 

Mr.  Commissioner  ABBOTT.  I  withdraw  the  motion  if  Judge 
TIIURMAX  desires. 

Mr.  Commissioner  EMMUXDS.    I  withdraw  my  motion. 

Mr.  Commissioner  THURMAN.  If  we  are  not  to  extend  the  time 
allowed  for  argument  I  should  be  in  favor  of  adjourning  until  to 
morrow,  and  then  the  four  hours  of  argument  may  be  heard  and  con 
cluded  by  two  o'clock  and  we  shall  have  time  to  deliberate  :  but  if 
tho  time'is  to  be  extended  then  I  might  be  quite  willing,  unwell  aa  I 
am,  to  stay  to-night. 

The  PRESIDENT.     I  understood  that  counsel  asked  an  extension. 

Mr.  Commissioner  THURMAN.  If  counsel  insist  upon  that  request, 
I  hope  that  will  be  decided  first. 

The  PRESIDENT.    What  was  the  request  ? 

Mr.  IIOADLY.  We  did  request  an  extension  of  time  for  two  hours 
additional. 

Mr.  EVARTS.  On  our  part  we  do  not  desire  any  additional  time, 
as  wo  suppose  the  discussion  is  mainly  one  of  law. 

Mr.  Commissioner  HOAR.  I  should  like  to  have  the  counsel  state 
whether  they  propose  to  offer  any  testimony  and  whether  they  have 
that  offer  of  testimony  now  prepared. 

Tho  PRESIDENT.  I  will  allow  that  question  to  be  answered  before 
I  put  the  motion. 

Mr.  HOADLY.  We  expect  to  offer  testimony.  We  have  asked  the 
Commission  to  make  an  order  fo*-the  production  of  certain  testimony 
hi cli  we  desire  to  use. 

The  PRESIDENT.  It  has  been  made.  The  subpoena  has  been 
signed. 

Mr.  Commissioner  HOAR.  I  should  like,  Mr.  President,  before 
determining  the  question  of  the  extension  of  time,  to  have  the  offer 
of  testimony  made  in  form,  made  now. 

Mr.  Commissioner  BRADLEY.  So  as  not  to  occupy  time  to-morrow  ? 

Mr.  Commissioner  HOAR.  I  do  not  mean  by  that  that  I  desire  tho 
counsel  to  offer  their  witnesses  now,  but  I  desire  to  have  the  offer 
(which  has  been  made  in  all  the  other  cases)  before  the  tribunal  as 
to  the  substance  of  the  fact  that  is  proposed  to  be  proven,  before  vot- 
iuo-  on  the  question  of  the  extension  of  time. 

Tho  PRESIDENT.  I  will  inquire.  Are  counsel  ready  to  make  the 
offer? 

Mr.  HOADLY.    We  are. 


J50 


ELECTORAL  COMMISSION. 


The  PRESIDENT.     Make  it. 

Mr.  IIOADLY.  I  say  ready.  I  suppose  it  is  in  the  next  room.  We 
have  prepared  the  offer  and  caused  it  to  be  printed,  and  I  suppose  it 
can  be  had  in  a  moment. 

Mr.  MERRICK.     It  is  very  brief. 

Mr.  HOADLY.    There  is  not  a  copy  in  the  room  now. 

Mr.  Commissioner  HOAR.  I  move  that  counsel  be  permitted  to 
offer  that  before  the  other  question  is  decided. 

Mr.  Commissioner  EDMUNDS.  To  occupy  the  time  while  this  paper 
is  being  sent  for,  I  wish  to  say  on  the  question  of  the  extension  of 
time  that  it  is  now  Wednesday  night ;  Saturday  week  will  be  the 
3d  da\  of  March,  and  there  are  several  States  yet  to  be  gone  through, 
and  one  which  according  to  the  general  rumor  will  be  one  that  we 
shall  be  obliged  ourselves  to  act  upon.  Now  it  does  seem  to  mo  that 
we  ought  all  to  submit  to  much  personal  inconvenience,  as  I  do,  and 
as  I  know  Judge  THURMAX  does,  in  order  to  get  on.  The  Senate 
Chamber  is  at  our  disposal,  where  we  can  be  as  comfortable  as  we 
can  be  here  in  the  daytime,  except  from  the  weariness  of  long  sitting. 
Sol  should  hope  that  on  all  hands  we  should  be  willing  now,  with  all 
these  questions  as  to  what  are  the  offers  and  how  much  time  may  be 
needed,  which  perhaps  we  cannot  tell — I  should  be  very  glad  to  give 
all  that  is  necessary  and  that  is  possible — but  I  think  it  better  we 
should  take  a  recess  now  and  meet  at  seven  o'clock,  and  then  in  an 
hour  or  two  we  can  ascertain  exactly  where  we  are  and  what  we 
ought  to  do. 

The  PRESIDENT.  I  think  we  ought  to  receive  the  offer  before 
any  motion. 

Mr.  Commissioner  EDMUNDS.  I  did  not  make  a  motion,  only  a 
suggestion. 

Mr.  Commissioner  MORTON.  Mr.  President,  I  desire  to  say  that 
considering  the  critical  condition  of  public  business  and  the  exigency 
now  before  the  country,  we  ought  not  to  extend  the  time.  I  would 
always  be  willing  to  gratify  and  accommodate  counsel;  but  I  believe 
that  every  idea  they  have  to  advance,  every  authority  referred  to, 
can  be  produced  satisfactorily  in  two  hours  on  each  side.  1  do  not 
believe  there  is  the  slightest  advantage  to  be  gained  by  anybody  by 
the  extension  of  time. 

The  PRESIDENT,  (to  counsel.)  Are  you  ready  to  make  the  offer  of 
proof  ? 

Mr.  HOADLY.    Not  at  this  moment.    Mr.  Green  has  gone  for  it. 

Mr.  MERRICK.  The  papers  were  here,  but  accideutaUy  have  been 
mislaid. 

The  PRESIDENT.  Mr.  Commissioner  MILLER  suggests  that  we  had 
better  take  the  question  upon  the  motion  for  the  extension  of  time 
without  waiting  for  the  offer. 

Mr.  MP^RRICK.    1  have  a  copy  here  now. 

The  PRESIDENT.  You  can  read  that.  The  Commission  desire 
that  the  offer  should  be  read  in  their  hearing  audibly. 

Mr.  HOADLY— 

First.  The  undersigned,  of  counsel  for  objectors  to  certificate  No.  1,  offer  in  evi 
dence  a  duly  certified  copy  of  the  commission  of  John  W.  Watts  as  postmaster  at 
Yam  Hill,  in  the  county  of  La  Fayette,  State  of  Oregon,  which  said  commission  was 
issued  in  the  year  187HJ  and  they  also  offer  to  prove  that  said  Watts  duly  qu  ililied 
and  entered  upon  said  office,  being  an  office  of  prolit  and  trust  under  the  United 
States,  and  that  he  was  the  incumbent  thereof  on  the  7th  day  of  November,  187(5, 
and  up  to  and  after  the  6th  day  of  December,  187ti,  and  until  his  successor  was 
thereafter  appointed  and  qualified  ;  and  they  further  offer  to  prove  that  said  John 
W.  Watts  is  the  same  person  whose  name  appears  in  said  certificate  No.  1  as  hav 
ing  voted  for  President  and  Vice-President  of  the  United  States,  as  a  member  of 
the  electoral  college  of  the  State  of  Oregon. 

Second.  The  undersigned  further  offer  to  prove  that  more  tlian  eleven  hundred 
voters  of  the  State  of  Oregon  who  cast  their  ballots  in  favor  of  said  Watts  as  elector 
for  President  and  Vice-President  of  the  United  States  at  the  election  held  on  the 
7th  day  of  November,  1876.  had  notice  that  said  Watts  was  a  postmaster  in  the  serv 
ice  of  the  United  States,  and  that  he  was  thereby  disqualified  from  becoming  an 
elector  for  President  and  Vice-President  of  the  United  States. 

This  is  signed : 

R.  T.  MERRICK, 
GEORGE  HOADLT. 

The  PRESIDENT.  Now  I  will  put  the  question  on  the  extension 
of  the  time.  The  request  is  to  extend  the  time  two  hours  on  the  side 
of  the  objectors  to  certificate  No.  1. 

Mr.  Commissioner  BRADLEY.  Mr.  President,  I  should  be  very  re 
luctant  to  curtail  the  time  of  counsel  in  the  discussion  of  the  questions 
before  us,  so  important  as  they  are,  and  I  always  have  been  disposed 
to  extend  time  when  it  has  been  asked ;  but  it  seems  to  me  that  after 
the  question  has  already  been  discussed  in  many  of  its  leading  aspects, 
two  hours  on  each  side  already  occupied  with  two  hours  more  will  be 
as  much  as  can  be  reasonably  asked  .in  the  present  exigency  of  public 
affairs.  I  would  much  prefer  that  counsel  should  confine  themselves 
to  the  time  we  have  laid  down  in  our  rules,  and  that  we  should  ad 
journ  until  to-morrow  instead  of  extending  the  time  and  sitting  to- 
iiight. 

Mr.  Commissioner  HUNTON.  Mr.  President,  I  understand  that  the 
two  hours  proposed  to  be  devoted  to  the  argument  of  this  case  on 
either  side  embrace  also  the  argument  on  the  offer  of  testimony  and 
upon  the  whole  case.  Now,  under  the  rules  of  this  Commission  coun 
sel  have  a  right  to  debate  each  offer  of  evidence  for  fifteen  miuutes 
on  each  side ;  and  it  was  understood  in  the  last  case,  as  I  believe,  that 
in  lieu  of  those  fifteen  minutes  on  the  offering  of  each  piece  of  testi 
mony  we  should  extend  the  time  for  the  main  argument  and  let  all 
the  offers  be  made  at  once.  I  think  that  rule  ought  to  be  pursued  in 
this  case;  in  lieu  of  the  fifteen  miuutes  that  the  counsel  would  have 


a  right  to  debate  each  offer  of  testimony  under  the  rule,  I  think  we 
should  extend  the  time  so  as  to  cover  that  fifteen  minutes'  debate  on 
each  point  of  testimony.  I  think,  therefore,  it  is  reasonable  that  the 
time  of  the  argument  should  be  extended. 

The  PRESIDENT.  I  desire  to  add  one  remark  in  explanation  of  the 
vote  I  shall  give.  I  shall  vote  to  extend  the  time.  I  do  it  very 
largely  on  the  ground  that  after  the  argument  closes,  there  is  no  op 
portunity  for  the  examination  of  authorities.  We  depend  chiefly 
upon  the  bar  for  our  information  in  respect  to  the  authorities  during 
the  arguments,  and  with  that  view  I  shall  vote  to  extend  the  time. 

Mr.  Commissioner  EDMUNDS.  Mr.  President,  I  make  this  motion 
on  the  subject  of  the  application  for  the  extension  of  time : 

That  we  proceed  with  the  case  at  seven  o'clock  in  the  Senate  Chamber,  and  that 
counsel  have  three  and  a  half  hours. 

There  are  two  objections  hero  which  would  cover  half  an  hour's  ar 
gument.  I  want  to  give  all  the  time  possible.  I  move  that  they  have 
three  and  a  half  hours  on  a  side,  for  the  argument  of  objections,  and 
merits,  and  everything. 

Mr.  EVARTS.    The  offers  of  testimony  ? 

Mr.  Commissioner  EDMUNDS.  Yes,  including  the  offers  of  testi 
mony. 

Mr.  MERRICK.     That  will  be  satisfactory. 

Mr.  Commissioner  BAYARD.  la  the  extension  of  time  desired  on 
both  sides  ? 

Mr.  Commissioner  EDMUNDS.  No;  the  opposite  side  say  not ;  but 
of  course  in  making  the  order  we  ought  to  extend  it  to  both  sides.  If 
we  can  spend  two  hours  this  evening  it  will  be  about  fair. 

The  P.RESIDENT.  I  will  treat  that  as  the  original  motion.  Please 
reduce  it  to  writing. 

Mr.  Commissioner  EDMUNDS.  My  motion  is  that  the  hearing  pro 
ceed  in  the  Senate  Chamber  at  seven  o'clock  and  thirty  minutes  p.  m., 
and  that  counsel  have  three  hours  and  a  half  on  each  side  for  the 
whole  case,  covering  offers  of  proof,  &c. 

Mr.  Commissioner  THURMAN.  Mr.  President,  as  that  order  is 
drawn  up,  it  does  not  include  the  time  that  might  be  occupied  in 
hearing  the  testimony  in  case  any  shall  be  admitted. 

Mr.  Commissioner  EDMUNDS.  I  do  not  intend  to  have  the  tes 
timony  of  witnesses  come  out  of  the  three  hours  and  a  half  be 
cause  it  is  obvious  that  we  could  not  hear  the  testimony  of  eleven 
hundred  witnesses  to  prove  that  they  knew  the  disqualification  in 
that  time. 

Mr.  Commissioner  THURMAN.  Then  the  proposition  is  that  the 
argument  shall  proceed  before  any  testimony  is  offered. 

Mr.  Commissioner  EDMUNDS.  That  depends.  In  whatever  order 
they  go,  they  have  so  much  time  for  speaking. 

Mr.  Commissioner  THURMAN.  I  have  never  been  able  to  under 
stand  since  this  Commission  had  its  first  sitting  why  facts  that  are 
indisputable  have  not  been  admitted  and  thereby  save  the  time  of 
the  Commission.  The  first  offer  of  proof  in  this  case  is  that  "Watts 
was  postmaster  at  Yam  Hill,  in  the  county  of  La  Fayette,  Oregon, on 
the  ?th  of  November,  187G,  and  up  to  and  after  the  6'th  of  December, 
1870."  That  he  was  postmaster  on  the 7th  of  November,  187G,  I  have 
supposed  was  not  a  disputed  fact.  Why  that  should  not  be  admitted 
and  proof  in  regard  to  that  and  the  time  that  would  be  occupied  in 
making  the  proof  should  not  be  saved,  I  am  not  at  all  able  to  under 
stand.  Whether  he  was  postmaster  on  the  6th  of  December,  187(3,  I 
do  not  understand  to  be  an  undisputed  question,  and  upon  that  testi 
mony  might  well  bo  taken. 

So  as  to  the  second  proposition,  as  to  whether  more  than  eleven 
hundred  voters  of  the  State  of  Oregon  who  cast  their  votes  for  him 
knew  of  his  ineligibility ;  that  is  a  question,  of  course,  that  no  one 
could  be  asked  to  admit.  But  so  far  as  time  can  be  saved  by  admit 
ting  what  is  indisputable,  I  have  thought  from  the  very  first  that  the 
admission  ought  to  have  been  made  on  both  sides. 

Now,  in  respect  to  this  testimony,  until  the  Commission  decides 
whether  it  shall  be  received  or  not  I  do  not  know  how  counsel  can 
proceed.  We  propose  to  give  three  hours  and  a  half.  I  think  that  is 
ample  for  the  discussion,  both  of  the  question  of  admissibility  and  of 
the  merits,  but  until  you  decide  whether  the  testimony  shall  be  ad 
mitted  at  all  I  really  do  not  see  how  counsel  are  to  know  how  to  con 
duct  their  case 

Mr.  Commissioner  HOAR.  Mr.  President,  if  this  motion  should  be 
adopted,  a  motion  will  be  made  that  the  counsel,  in  discussing  the 
admissibility  of  their  testimony  on  either  side,  may  draw  at  their 
pleasure  on  the  time  allowed  for  their  final  argument,  as  was  done  in 
the  Louisiana  case.  That  answers  Judge  THURMAN'S  question. 

The  PRESIDENT.  I  do  not  quite  understand  you,  Mr.  HOAR. 
Mr.  Commissioner  HOAR.  I  say,  if  this  proposition  of  Mr.  ED 
MUNDS  should  be  adopted,  a  further  motion  will  be  made,  that  coun 
sel,  in  discussing  the  question  of  the  admissibility  of  testimony,  shall 
be  permitted  to  add  to  the  fifteen  miuutes  as  much  of  their  final  time 
as  they  see  fit  to  take,  as  they  did  in  the  Louisiana  case ;  that  is, 
counsel  having  three  and  a  half  hours  in  all,  if  they  choose,  instead 
of  spending  fifteen  minutes  only  on  their  first  offer  of  testimony,  they 
may  spend  three  and  a  half  hours  on  it. 

The  PRESIDENT.  I  do  not  consider  any  motion  before  the  Com 
mission  except  the  one  submitted  by  Mr.  EDMUNDS,  that  the  Com 
mission  proceed  in  the  Senate  Chamber  at  seven  and  a  half  o'clock 
this  evening,  and  that  the  counsel  have  three  and  a  half  hours  on  each 
side  for  the  discussion  of  the  whole  case. 


ELECTORAL  COMMISSION. 


151 


Mr.  Commissioner  GARFIELD.  Mr.  President,  I  have  no  objection 
to  that  proposition  if  it  caii  be  executed  in  accordance  with  the  mani 
fest  intention  of  the  mover;  that  is  if  we  can  go  forward  to-night 
and  hold  a  session  which  will  hear  a  large  part  of  the  argument  that 
we  expect  to  hear.  But  we  did  precisely  this  sort  of  thing  a  week 
ago,  extended  the  time  to  four  hours  and  a  half  on  a  side,  with  an 
understanding  that  we  were  to  have  anight  session,  and  before  we  had 
started  over  twenty  minutes  on  that  night's  session,  or  a  little  longer, 
perhaps,  we  adjourned  over,  and  then  we  had  the  whole  accumulated 
time  in  our  hands  and  nothing  gained. 

Mr.  Commissioner  MILLEK.  That  was  on  account  of  counsel  who 
Baid  they  could  not  go  on. 

Mr.  Commissioner  GARFIELD.  I  was  out  at  the  moment  that  was 
done.  But  if  it  can  be  that  we  shall  have  a  session  to-night  and  hear 
the  major  part  of  this  argument,  I  shall  cheerfully  vote  for  the  reso 
lution. 

Mr.  Commissioner  THURMAN.  I  want  to  say  one  word  in  reply 
to  the  suggestion  of  brother  HOAR.  He  says  that  if  this  rule  be 
adopted,  then  the  counsel  may  take  out  of  their  time  allowed  for  the 
argument  upon  the  merits  as  much  time  as  they  please  and  occupy 
that  time  in  arguing  the  question  of  the  admissibility  of  the  testi 
mony,  as  was  done  in  the  Louisiana  case.  But  the  cases  are  very  dif 
ferent.  In  the  Louisiana  case  the  Commission  directed  them  to 
argue  the  question  of  the  admissibility  of  the  testimony,  and  the 
Commission  decided  that  question  before  they  were  called  upon  to 
make  any  argument  on  the  merits.  It  is  very  true  that  they  occu 
pied  all  their  time,  so  that  they  had  no  time  left  for  argument  upon 
the  merits.  But  if  this  order  be  adopted,  then  without  knowing 
whether  they  are  to  give  their  evidence  or  not,  they  are  to*  go  on 
upon  each  side  and  occupy  the  three  hours  and  a  half,  and  they  will 
not  know  what  will  be  the  decision  of  the  Commission  as  to  the  ad 
missibility  of  the  testimony.  I  do  not  think  that  is  the  way  to  try 
a  case.  It  seems  to  me  it  would  be  very  much  better  to  stick  to  our 
rule  and  give  iif  teen  minutes  upon  an  offer  pf  testimony  which  would 
give  half  an  hour  on  a  side,  and  then  allow  the  three  hours  for  the 
argument  upon  the  merits,  which  would  amount  to  the  same  thing  as 
the  order  offered  by  the  Senator  from  Vermont. 

Mr.  Commissioner  HOAR.  The  suggestion  I  made  does  not  require 
counsel  to  take  more  than  fifteen  minutes.  It  leaves  the  whole  mat 
ter  to  the  discretion  of  counsel.  Counsel  make  these  two  offers  of 
testimony.  If  they  choose  to  present  that  point  of  their  case  in  a 
fifteen  minutes'  argument  or  without  argument  they  can  do  so.  If 
they  wish  to  draw  fifteen  minutes  or  an  hour  out  of  their  final  time, 
as  it  has  been  extended,  they  can  do  so.  The  order  does  not  require 
them  ;  it  only  permits  them  in  their  discretion,  to  which  the  case  cer 
tainly  can  be  intrusted. 

Mr.  Commissioner  THURMAN.  But  the  question  which  troubles 
me  is,  when  will  the  Commission  decide  ou  the  admissibility  of  testi 
mony  ? 

Mr.  Commissioner  HOAR.    After  it  is  argued. 

Mr.  Commissioner  MILLER.  When  the  court  get  through  hearing 
argument  they  decide  whether  the  testimony  shall  be  admitted  or 
not. 

The  PRESIDENT.  The  only  question  before  the  Commission  is  on 
the  motion  of  Senator  EDMUXDS. 

Mr.  Commissioner  ABBOTT.  I  desire  to  ask  Senator  EDMUNDS 
how  long  it  is  proposed  that  we  shall  hold  a  session  this  evening? 

Mr.  Commissioner  EDMUNDS.  I  think  we  ought  to  sit  two  full 
hours. 

Mr.  Commissioner  ABBOTT.     I  agree  to  that. 

The  PRESIDENT.   Are  you  ready  for  the  question  ou  the  motion  ? 

Mr.  Commissioner  MORTON.     What  is  the  motion  ? 

The  PRESIDENT.  That  the  hearing  of  the  case  proceed  in  the 
Senate  Chamber  at  half  past  seven  o'clock;  and  that  the  parties  have 
three  and  a  half  hours  on  each  side  for  argument. 

Mr.  Commissioner  MORTON.  I  suggest  that  that  motion  is  divis 
ible.  The  question  about  going  to  the  Senate  Chamber  is  one  thing. 
I  should  like  to  have  the  question  separated. 

The  PRESIDENT.  I  will  regard  the  question  as  divisible.  The 
first  question  is  whether  the  Commission  will  proceed  with  the  hear 
ing  in  the  Senate  Chamber  at  half  past  seven  o'clock. 

This  branch  of  the  motion  was  agreed  to. 

The  PRESIDENT.  The  other  division  of  the  motion  is  that  the 
parties  be  allowed  three  hours  and  a  half  on  a  side  for  the  discussion 
of  the  whole  question. 

This  branch  of  the  motion  was  agreed  to. 

Mr.  Commissioner  HOAR.  I  move  that  in  arguing  the  question  of 
admissibility  of  evidence,  counsel  be  permitted  to  take,  in  addition  to 
the  fifteen  minutes  allowed  by  the  rule,  as  much  of  the  time  remain 
ing  to  them  as  they  see  fit. 

Mr.  Commissioner  EDMUNDS.  That  is  unnecessary.  This  is  a 
substitute  for  the  whole  thing.  They  proceed  under  thfs  order  alone. 

Mr.  Commissioner  HOAR.     If  that" is  the  understanding,  all  right. 

The  PRESIDENT,  (at  six  o'clock  and  forty-four  minutes  p.  m.) 
The  Commission  will  now  take  a  recess  until  half  past  seven  o'clock. 

The  Commission  re-assembled  in  the  Senate  Chamber  at  seven 
o'clock  and  thirty  minutes  p.  m. 

Mr.  IIOADLY.  Mr.  President  and  gentlemen  of  the  Commission, 
the  first  proposition  to  which  I  desire  to  address  myself  is  that  the 
decisions  made  by  the  Commission  in  the  cases  of  Florida  and  Loui 


siana  applied  to  this  case  require  the  Commission  to  sustain  the  elect 
oral  votes  cast  by  Cronin,  Miller,  and  Parker,  namely,  one  for  Tilden 
and  Hendricks,  and  two  for  Hayes  and  Wheeler.  Without  retracing 
its  steps  and  withdrawing  the  positions  the  Commission  has  an 
nounced  as  its  conclusions  in  the  cases  of  Florida  and  Louisiana,  the 
result  cannot  be  reached  which  is  desired  by  our  learned  antagonists. 
In  order  that  we  may  in  the  briefest  possible  manner  ascertain  the 
point  of  contention,  I  will  read  from  the  decision  of  this  Commission 
in  the  case  of  Louisiana: 


President  of  the  Senate  in  the  presence  of  the  two  nouses  to  prove  that  other  per 
sons  than  those  regularly  certified  to  by  the  governor  of  the  State  of  Louisiana  oa 
and  according  to  the  determination  and  declaration  of  their  appointment  by  the 
returning  officers  for  election  in  the  said  State  prior  to  the  time  required  for  the 
performance  of  their  ditties  had  been  appointed  electors,  or  by  counter-proof  to 
show  that  they  had  not;  or  that  the  determination  of  the  said  returning  officers 
was  not  in  accordance'with  the  truth  and  the  fact;  the  Commission  by  a  majority 
of  votes  being  of  opinion  that  it  is  not  within  the  jurisdiction  of  the'two  Houses 
of  Congress  assembled  to  count  the  votes  for  President  and  Vice-President  to  enter 
upon  a  trial  of  such  questions. 

I  do  not  understand  that  this  is  a  ruling  upon  a  mere  question  of 
proof,  but  that  it  is  a  ruling  upon  a  high  proposition  of  jurisdiction. 
Nor  do  I  understand  that  by  this  decision  is  meant  that  anything  and 
everything  which  any  person  claiming  to  be  an  elector  may  envelope 
and  address  to  the  President  of  the  Senate  has  the  force  of  testimony 
before  this  honorable  Commission,  but  only  that  such  documents  and 
papers  as  if  offered  aliunde  would  be  competent  to  be  received,  may 
be  considered  when  found  within  the  envelopes,  and  that  the  deter 
mination  and  decision  of  the  returning  board  of  a  State,  acted  upon 
by  the  governor  of  the  State  in  the  manner  provided  in  the  one  hun 
dred  and  thirty-sixth  section  of  the  Revised  Statutes,  is  final  and 
conclusive,  and  that  the  names  therein  contained  are  the  names  of 
the  true  and  valid  electors  of  the  State. 

That  I  am  right  in  this  construction  of  this  decision  is  confirmed  to 
me  by  the  views  of  one  for  whom  a  long  knowledge  has  impressed 
me  with  great  respect.  I  am  not  personally  intimate  with  him  but 
intimate  in  the  sense  in  which  any  citizen  may  be  intimate  with  the 
judgment,  the  opinions,  and  the  accuracy  of  statement  of  a  statesman. 
I  say,  that  I  am  right  in  this  conclusion  is  confirmed  tome  by  a  state 
ment  made  of  reasons  for  this  conclusion  in  the  Senate  of  the  United 
States  on  the  20th  of  February  by  a  member  of  this  Commission,  the 
honored  Senator  from  Indiana,  [Mr.  MORTOX.]  He  said: 

The  Constitution  says  the  certificate  shall  be  opened  by  the  President  of  the  Sen 
ate  in  the  presence  of  the  two  Houses.  Whether  heis  to  count  the  votes  or  whether 
the  two  Houses  are  to  count  the  votes,  and  I  assume  under  this  law  the  two  Houses 
are  to  do  it,  or  in  certain  cases  this  Electoral  Commission,  what  can  they  do  1  They 
have  but  one  duty  to  perform,  and  that  is  to  ascertain  that  these  certificates  came 
from  the  electorsof  the  State.  Whentbatis  done  "  the  voteshall  then  be  counted." 
T  hey  must  ascertain  the  fact  whether  they  came  from  the  electors  of  the  State ;  and 
when  they  have  ascertained  that  their  duty  is  at  an  end.  There  is  no  time,  there 
is  no  place  to  try  any  question  of  iueligibiiity  or  of  election  when  the  votes  are  to 
be  counted.  And  how  are  we  to  know  that  the  certificates  came  from  the  electors 
of  the  State  ?  In  the  first  place,  the  act  of  Congress  provides  prima  facie  evidence, 
the  governor's  certificate,  but  that  is  not  conclusive.  That  is  the  result  of  an  act 
of  Congress.  Congress  may  repeal  that  act  or  it  may  provide  by  anol  her  to  go  bo- 
hind  it,  but  when  you  go  behind  that  and  come  to  the  action  of' the  officers  of  the 
State,  there  your  inquiry  is  at  an  end.  "Whenever  the  officers  appointed  by  a  State 
to  declare  who  have  been  chosen  electors  have  acted  and  made  that  declaration,  it 
is  final  so  far  as  Congress  is  concerned.  The  action  of  the  State  officers  is  the  act 
of  the  State. 

With  that  statement  of  principle  I  am  content.  My  proposition  ia 
that  the  State  of  Oregon,  through  her  State  officers,  through  her  gov 
ernor,  supported  by  her  canvassing  board,  has  spoken,  and  the  result 
of  her  speech  is  here  in  the  certificates  of  E.  A.  Croniu,  William  H. 
Odell,  and  John  C.  Cartwright,  which  certificates  are  attached  to  the 
votes  of  Crouin,  Miller,  and  Parker,  and  are  the  only  legitimate,  law 
ful  evidence  of  the  act  of  Oregon,  without  which  the  pretended  votes 
of  Odell,  Cartwright,  and  Watts  fail  to  have  any  legal  effect  what 
ever. 

Mr.  MATTHEWS.    What  is  it  you  read  from  ? 

Mr.  HOADLY.  From  a  speech  of  Senator  MORTOX  in  the  Senate  on 
the  20th  of  February,  1877,  on  page  14  of  the  RECORD— yesterday. 
For  greater  convenience  I  will  place  it  before  you. 

Mr.  MATTHEWS.     Thank  you. 

Mr.  HOADLY.  The  views  expressed,  find  confirmation  in  the  case 
of  Dennett,  petitioner,  in  volume  32  of  the  Reports  of  the  State  of 
Maine,  page  503.  Your  honors  will  not  find  this  in  any  brief  that  is 
printed.  The  opinion  is  pronounced  by  Shepley,  chief-justice,  and 
there  is  no  dissenting  opinion. 

The  act  of  opening  and  comparing  the  votes  returned  for  county  commissioners 
cannot  be  pcrformedby  the  persons  holding  the  offices  of  governor  and  of  council 
ors,  unless  they  act  in  their  official  capacities,  for  it  is  only  in  that  capacity  that 
the  power  is  conferred  upon  them.  The  duty  is  to  be  performed  upon  tho  responsi 
bility  of  their  official  stations  and  under  the  sanctity  of  their  official  oaths.  The 
governor  and  council,  and  not  certain  persons  that  may  he  ascertained  to  hold 
those  offices,  must  determine  the  number  of  votes  returned  for  each  person  as 
county  commissioner,  aud  ascertain  that  some  one  has  or  has  not  a  sufficient  num 
ber  to  elect  him. 

The  case  of  Marbury  vs.  Madison,  I  Cranch,  137,  does  not  appear  to  be  opposed 
to  these  positions.  The  opinion  in  that  case  states  that  "  the  province  of  tho  court 
is  solely  to  decide  on  tho  rights  of  individuals,  not  to  inquire  how  the  executive  or 
executive  officers  perform  duties,  in  which  they  have  a  discretion.  Questions  in 
their  nature  political,  or  which  are  by  the  constitution  and  laws  submitted  to  the 
executive,  can  never  bo  made  in  this  court."  All  interference  with  the  executive 
department  of  the  government  is  in  that  case  expressly  disclaimed. 


ELECTORAL  COMMISSION. 


It  is,  then,  the  State  of  Oregon  which  speaks  when  the  governor, 
under  section  136  of  the  Kevised  Statutes  of  the  United  States,  in 
obedience  to  the  return  and  canvass  of  the  returning  officers,  to  the 
declaration  and  determination  of  the  result  of  the  canvass  by  the  re 
turning  officers,  issues  that  certificate. 

It  shall  be  tho  duty  of  the  executive  of  each  State — 

Says  the  statute —  'fy  ''. 

to  cause  three  lists  of  the  names  of  the  electors  of  such  State  to  be  made  and 
certified,  and  to  bo  delivered  to  the  electors  on  or  before  the  day  on  which  they  are 
required  by  the  preceding  section  to  meet. 

Again,  section  138 : 

The  electors  shall  make  and  sign  three  certificates  of  all  the  votes  given  by  them, 
each  of  which  certificates  shall  contain  two  distinct  lists,  &c. 

And  so  the  next  section,  that  the  certificates  shall  bo  sealed  and  de 
livered,  one  to  the  Federal  district  judge,  one  sent  by  mail  to  the 
President  of  the  Senate,  and  one  sent  by  messenger  to  the  President 
of  the  Senate. 

Now,  I  ask  your  honors'  attention  to  the  question.  Who  were  the 
electors  ascertained  to  be  appointed  by  tho  official  decision  and  de 
termination  (that  I  believe  to  have  been  the  language  used  in  the 
Florida  case)  of  the  board  of  State  canvassers  of  the  State  of  Oregon  ? 
Or,  to  use  the  language  adopted  in  the  Louisiana  case,  Who  were  the 
returning  officers  upon  and  according  to  whose  determination  of  their 
appointment  the  governor  acted  or  failed  to  act,  as  the  case  may  be, 
in  the  issue  of  the  certificates  in  the  case  of  the  State  of  Oregon  ? 

This  leads  us  to  an  examination  and  comparison  of  the  statutes  of 
the  State  of  Oregon  in  connection  -with  the  statutes  of  the  States  of 
Florida  and  Louisiana,  for  I  refer  to  Florida  and  Louisiana,  as  I  shall 
hereafter  refer  to  Massachusetts,  in  order  that  we  who  are  of  counsel 
may  have  a  guide  in  tho  opinions  already  pronounced  by  this  Commis 
sion.  I  mean  of  course  in  applying  to  thiscaseof  Oregon  the  decisions 
made  by  this  Commission  in  the  matter  of  Florida  and  Louisiana.  In 
Florida"  certain  persons  are  to  "form  a  board  of  State  canvassers,  and 
proceed  to  canvass  the  returns  of  said  elootion,  and  determine  and  de 
clare  who  shall  have  been  elected  to  any  such  office  or  as  such  mem 
ber,  as  shown  by  such  returns." 

Hero  the  office  of  determination  and  declaration  is  superadded  to 
the  office  of  canvassing ;  and  by  a  later  provision  in  the  same  section 
tho  board  are  required  to  "make  and  sign  a  certificate  containing  in 
words  written  at  full  length  the  whole  number  of  votes,"  &c. 

And— 

"When  any  person  shall  be  elected  to  tho  office  of  elector  *  *  *  tho  governor 
shall  make  out,  sign,  and  cause  to  bo  sealed  with  the  seal  of  the  State,  and  trans 
mit  to  such  person  a  certificate  of  his  election. 

The  point  to  which  I  desire  particularly  your  attention  is  that, 
under  the  laws  of  Florida,  the  canvass,  the  scrutiny,  tho  tabulation, 
the  determination,  and  decision  are  separated  in  legal  thought,  and 
thus,  in  legal  act,  form  the  canvass  itself;  and  so  we  find  it  in  Loui 
siana,  as  is  made  manifest  in  tho  oath  that — 

I  will  carefully  and  honestly  canvass  and  compile  the  statements  of  the  votes. 

Again — 

Within  ton  days  after  the  closing  of  the  election  said  returning  officers  shall  meet 
in  New  Orleans  to  canvass  and  compile  t  lie  statement  of  votes  made  by  the  commis 
sioners  of  election,  and  make  returns  of  the  election  to  the  secretary  of  state.  They 
shall  Continue  in  session  until  such  returns  have  been  compiled.  The  presiding 
officer  ahull,  at  such  meeting,  open  in  tho  presence  of  the  said  returning  officers  the 
statements  of  the  commissioners  of  elect  ion,  and  the  said  returning  officers  shall,  from 
said  statements,  canvass  and  compile  the  returns  of  the  election  in  duplicate  ;  one 
copy  of  such  returns  they  shall  file  in  the  office  of  the  secretary  of  state, .and  of  one 
copy  they  shall  make  public  proclamation,  by  printing  in  the  official  journal  and 
such  other  newspapers  as  they  may  deem  proper,  declaring  tho  names  of  ail  per 
sons  and  officers  voted  for,  the  number  of  votes  for  each  person,  and  tho  names  of 
tho  persons  who  have  been  duly  and  lawfully  elected.  The  returns  of  the  election 
thus  made  and  promulgated  shall  be  prima  facie  evidence  in  all  courts  of  justice 
and  before  all  civil  officers,  until  sot  aside  after  contest  according  to  law,  of  the 
right  of  any  person  named  therein  to  hold  and  exercise  tho  office  to  which  ho  shall 
by  such  return  bo  declared  elected.  Tho  governor  shall,  within  thirty  days  there 
after,  issue  commissions  to  all  officers  thus  declared  elected,  who  are  required  by 
law  to  bo  commissioned. 

Now  in  Oregon  the  language  of  tho  sixtieth  section  is  this : 
The  votes  for  tho  electors  shall  bo  given,  received,  returned,  and  canvassed  as 
the  same  are  given,  returned,  and  canvassed  for  members  of  Congress.    The  secre 
tary  of  state  shall  prepare  two  lists  of  the  names  of  the  electors  elected,  and  affix 
tho  seal  of  the  State  to  the  same,  &o. 

I  will  come  back  to  that  presently.  Let  us  now  see  how  votes  are 
given,  received,  returned,  and  canvassed  for  members  of  Congress. 
Section  37  is : 

The  county  clerk,  immediately  after  making  the  abstract  of  the  votes  given  in 
his  county,  shall  make  a  copy  of  each  of  said  abstracts,  and  transmit  it  by  mail  to 
tho  secretary  of  state,  at  tho  seat  of  government ;  and  it  shall  bo  the  duty  of  the 
secretary  of  state,  in  the  presence  of  tho  governor,  to  proceed  within  thirty  days 
after  the  election,  and  sooner  if  tho  returns  bo  all  received,  to  canvass  the  votes 
given  for  secretary  and  treasurer  of  state,  State  printer,  justices  of  the  supreme 
court,  members  of  Congress,  and  district  attorneys. 

•  If  this  were  all  tho  statute,  an  argument  by  implication  might  be 
made  inferentially,  claiming  that  the  duty  to  canvass  involved  the 
duty  to  determine  the  results  of  the  canvass.  But  this  is  not  all,  for 
the  governor,  who  is  required  to  be  present  for  that  purpose,  is  not 
an  idle  spectator,  as  is  claimed  by  the  objectors  to  certificate  No.  2: 

And  the  governor  shall  grant  a  certificate  of  election  to  the  person  having  the 
highest  number  of  votes,  and  shall  also  issue  a  proclamation  declaring  the  election 
of  such  person. 


And  this  is  made  perfectly  plain  by  the  next  sentence: 

In  case  there  shall  bo  no  choice  by  reason  of  any  two  or  more  persons  having  an 

equal  and  the  highest  number  of  votes  for  either  of  such  offices,  the  governor  shall, 

by  proclamation,  order  a  new  election  to  fill  said  offices. 

For  what  purpose  is  the  governor  present  ?  Ho  is  to  witness  the 
canvass  and  declare  its  result,  and  his  declaration  of  its  result  is  tho 
certificate  ho  gives,  and  his  proclamation  declaring  the  election  of 
such  person.  lie  is  not  there  as  an  idle  ceremony  any  more  than  the 
two  Houses  of  Congress  are  present  at  the  opening  of  tho  envelopes 
as  a  mere  idle  ceremony.  He  is  there  to  do  what  is  required  of  him 
to  do — to  witness  the  canvass  and  to  declare  its  result.  But  if  this 
bo  not  so  in  tho  matter  of  members  of  Congress  of  Oregon,  it  is  un 
questionably  so  with  regard  to  the  final  determination,  decision,  and 
declaration  of  the  result  of  the  election  of  electors.  The  secretary 
of  state  is  to  canvass.  No  duty  is  imposed  on  him  to  declare  any  re 
sult  whatever.  He  is  to  canvass,  and  what  is  that  canvass?  I 
copied — perhaps  it  was  an  idle  thing — from  the  approved  lexicogra 
phers  the  definition  of  the  word.  Worcester  says : 

1.  To  sift ;  to  examine  ;  to  scrutinize. 

I  have  made  careful  search,  and  canvassed  the  matter  with  all  possible  diligence. — 
Woodward. 

2.  To  debate ;  to  discuss  ;  to  agitate. 

They  canvassed  the  matter  one  way  and  t'  other. — L' Estrange. 

3.  To  solicit  votes  from  ;  to  bespeak. 

And  Webster  traces  the  origin  of  the  word  to  the  old  French  word 
canvasser,  and  he  defines  it  thus : 

To  examine  curiously ;  to  search  or  sift  out,  as  canvass  in  Old  English,  and  prob 
ably  in  Old  .French  signified  also  a  seive,  a  straining-cloth. 

1.  To  sift,  to  strain,  to  examine  thoroughly  ;  to  search  or  scrutinize  ;  &a  to  canvass 
the  votes  for  senators. 

2.  To  take  up  for  discussion ;  to  debate. 

An  opinion  that  we  are  likely  soon  to  canvass. — Sir.  W.  HamiHon. 

3.  To  go  through  in  the  way  of  solicitation  ;  as.  to  canvass  a  district  for  votes. 

Here  is  no  necessary  implication  that  tho  word  means  "  to  deter 
mine  the  result."  It  is  to  examine,  scrutinize,  tabulate,  and  formu 
late,  but  not  necessarily  to  ascertain  and  determine  results,  and  so 
the  word  is  used  in  Florida,  and  so  the  word  is  used  in  Louisiana,  and 
so  the  corresponding  word,  as  I  shall  presently  show  you,  is  used  in 
Massachusetts,  and  so  tho  word  is  used  in  Oregon.  \Vhen  we  come 
to  the  sixtieth  section  of  the  statute  we  find  that  this  view  is  pre 
cisely  confirmed.  Let  us  now  return  to  the  sixtieth  section  : 

The  votes  for  the  electors  shall  be  given,  received,  returned,  and  canvassed  as 
the  same  are  given,  returned,  and  canvassed  for  members  of  Congress. 

It  does  not  say  "  given,  received,  returned,  canvassed,  and  declared," 
or  "given,  received,  returned,  canvassed,  and  certified."  It  says, 
"given,  received,  returned,  and  canvassed,"  and  the  provision  with 
regard  to  the  final  determination  and  decision  is  contained  in  the 
next  clause  of  the  section. 

The  secretary  of  state  shall  prepare  two  lists  of  the  names  of  tho  electors  elected, 
and  affix  tho  seal  of  the  State  to  the  same. 

Two  lists,  not  three  ;  the  secretary  of  state,  not  the  governor.  It 
is  not  under  tho  act  of  Congress  that  this  is  required,  for  the  act  of 
Congress  calls  for  no  great  seal  of  Oregon,  and  calls  for  no  certificate 
of  the  secretary  of  state  of  Oregon.  The  act  of  Congress  calls  for  a 
certificate  which  may  be  without  a  seal,  which  may  bo  without  tho 
attestation  of  a  secretary.  The  act  of  Congress  simply  provides  that 
it  shall  be  the  duty  of  the  executive  of  each  State  to  cause  three  lists 
of  tho  names  of  the  electors  of  such  State  to  be  made  and  certified. 

The  secretary  of  state  shall  prepare  two  lists  of  tho  names  of  the  electors  elected, 
and  affix  the  seal  of  the  State  to  the  same.  Such  lists  shall  be  signed  .by  tho  gov 
ernor  and  secretary,  and  by  the  latter  delivered  to  tho  college  of  electors  at  the 
hour  of  their  meeting  on  such  first  Wednesday  of  December. 

And  hero  come  the  lists  prepared  under  this  section,  to  which  are 
signed  tho  names  of  the  governor  and  secretary,  under  the  great  seal 
of  the  State,  declaring  that  William  II.  Odell,  John  C.  Cartwright, 
and  E.  A.  Croniu  are  the  electors  elected. 

I,  L.  F.  Grover,  governor  of  the  State  of  Oregon,  do  hereby  certify  that,  at  a 
general  election  held  in  said  State  on  tho  7th  day  of  November.  A.  D.  1676,  William 
H.  Odell  received  15,206  votes,  John  C.  Cartwright  received  15,214  votes,  E.  A. 
Cronin  received  1-1,157  votes  for  electors  of  President  and  Vice-President  of  tho 
United  States;  being  the  highest  number  of  votes  cast  at  said  election  lor  persons 
eligible,  under  the  Constitution  of  the  United  States,  to  bo  appointed  electors  of 
President  and  Vice  President  of  tho  United  States,  they  are  hereby  declared  duly 
elected  electors  as  aforesaid  for  the  State  of  Oregon. 

That  is  the  voice  of  Oregon  according  to  the  admission  of  this  Com 
mission  in  the  cases  of  Florida  and  Louisiana.  Its  truthfulness  has 
been  impeached  ;  but  of  one  thing  I  am  certain  in  these  presence,  it 
is  as  true  as  the  certificates  which  have  received  the  approval  of  this 
Commission  coining  from  Florida  and  Louisiana.  They  are  duly 
elected.  They  are  hereby  declared — 

duly  elected  electors  as  aforesaid  for  the  State  of  Oregon. 

LAFAYETTE  GROVEK, 

Governor  of  Oregon. 
Attest : 
S.  F.  CHADWJCK, 

Secretary  of  State  of  Oregon. 

But,  says  my  learned  friend,  the  secretary  of  state  has  simply  signed 
it  as  a  witness.  Ho  signed  it  in  attestation  of  the  truth  of  the  fact. 
He  is  a  participant  in  the  declaration  thereby.  He  has  attached  the 
great  seal  of  the  State.  It  is  the  act  of  the  governor,  and  the  act  of 
the  secretary  in  tho  ordinary  form,  and  being  such,  which  has  com 
pliance  with  the  sixtieth  section  of  the  statute  of  Oregon  and  at  the 


ELECTORAL  COMMISSION. 


153 


same  time  with  the  one  hundred  and  thirty-sixth  section  of  the  Re 
vised  Statutes  of  the  United  Stut.es,  constitutes  the  final  and  con 
clusive  decision  and  determination  of  the  vote  of  the  State  of 
Oregon  according  to  the  only  evidence  provided  by  law  by  which  this 
tribunal  can  communicate  with  the  State  of  Oregon.  The  laws  of 
the  United  States  have  provided  but  a  single  method  by  Avhich  this 
tribunal  can  communicate  with  Oregon.  It  is  in  the  one  hundred  and 
thirty-sixth  section  of  the  Eevised  Statutes  of  the  United  States. 
There  is  the  method  pointed  out  by  law  by  which  the  voice  of  Oregon 
may  speak  to  this  tribunal,  to  the  two  Houses  of  Congress,  and  which 
this  tribunal,  standing  in  the  place  of  the  two  Houses  of  Congress, 
may  hear  as  the  voice  of  Oregon,  as  has  been  decided  by  this  tribunal 
in  the  cases  of  Florida  and  Louisiana. 

I  humbly  submit  this  proposition  in  connection,  however,  with  a 
decision  in  the  State  of  Massachusetts. 

Mr.  Commissioner  THURMAN.  Who,  by  the  laws  of  Oregon,  had 
the  custody  of  the  great  seal  of  the  State  ? 

Mr.  HOADLY.     I  am  unable  to  answer  the  question. 

Mr.  MATTHEWS.    The  secretary  of  state,  by  the  constitution. 

Mr.  HOADLY.  It  has  been  answered  probably  correctly.  I  do 
not  mean  by  "probably  correctly"  to  impeach  my  learned  friend.  I 
meant 

Mr.  MATTHEWS.    The  constitution  says  so. 

Mr.  HOADLY.  I  have  not  looked  at  it ;  but  I  say  there  is 
nothing  in  the  laws  of  Oregon  which  authorizes  any  such  certificate  or 
exemplification  as  is  presented  by  the  supporters  of  certificate  No.  1. 
It  cannot  be  found  there.  There  is  the  provision  of  Oregon,  section 
sixty  ;  and  the  certificate,  which  is  simply  a  certified  statement  of 
the  number  of  votes  received  at  the  election,  is  a  provision  aliunde  of 
the  laws  of  Oregon,  although  it  is  within  the  envelope  opened  by  the 
President  of  the  Senate. 

Mr.  Representative  LAWRENCE.  The  secretary  of  state  can  cer 
tify  at  common  law. 

Mr.  HOADLY.  But  the  laws  of  Oregon  have  determined  and 
prescribed  who  shall  certify  to  this  tribunal.  That  certificate  we  pre 
sent.  Now  I  call  your  honors'  attention  to  the  opinion  of  the  supreme 
judicial  court  of  Massachusetts,  signed  by  them  all — Horace  Gray, 
John  Wells,  James  D.  Colt,  Seth  Ames,  Marcus  Morton,  William  C. 
Eudicott,  and  Charles  Devens,jr.,  Boston,  March  5,  1875 — to  be  found 
on  page  GOO  of  the  one  hundred  and  seventeenth  volume  of  Massa 
chusetts  Reports : 

The  seventh  chapter  of  the  general  statutes  has  constituted  the  governor  and 
council  a  board  to  examine,  as  soon  as  may  be  after  receiving  them,  the  returns  of 
votes  from  the  various  cities  and  towns  for  district  attorneys  and  other  officers 
named  in  this  article  of  the  constitution,  and  requires  the  governor  forthwith  to 
transmit  to  such  persons  as  appear  to  bo  chosen  to  such  ollices  a  certificate  of  such 
choice,  signed  by  the  governor  and  countersigned  by  the  secretary  of  the  Common 
wealth. 

Notice,  the  governor  and  council  are  obliged  to  examine  the  returns; 
it  does  not  say  "  to  examine  and  declare  the  result,"  but  "  to  exam 
ine:" 

The  nature  of  the  duties  thus  imposed  and  the  very  terms  of  tho  statute  show 
that  they  are  to  bo  performed  without  unnecessary  delay,  and  that  tho  certificate 
issued  by  the  governor  to  any  person  appearing  upon  such  examination  to  bo  elected 
is  the  final  and  conclusive  evidence  of  the  determination  of  tho  governor  and 
council  as  to  his  election. 

Now,  I  submit  that  by  parity  of  reasoning  the  certificate  or  list 
signed  by  the  governor  and  secretary  of  state  of  Oregon,  under  the 
groat  seal  of  the  State,  and  by  the  latter  delivered  to  the  college  of 
electors  at  the  hour  of  their  meeting  on  the  first  Wednesday  of  De 
cember,  is  the  final  and  conclusive  evidence  of  tho  determination  of 
the  governor  and  secretary  as  to  their  election.  Why  are  the  gov 
ernor  and  secretary  required  to  sign  these  lists  ?  It  is  that  the  chief 
executive  of  the  State  and  the  canvassing  officer  shall  unite  in  de 
claring  who  are  elected.  The  secretary,  the  canvassing  officer,  is 
required  to  prepare  two  lists  of  the  names  of  electors  elected  and  to 
affix  the  great  seal  of  the  State  to  the  same ;  and  the  governor,  in 
whose  presence  the  canvass  is  to  proceed,  is  also  to  sign,  and  together 
their  signatures,  with  the  great  seal  of  the  State,  constitute  the  final 
and  conclusive,  irrefragible  evidence  who  are  the  electors  of  the  State 
of  Oregon. 

I  pass  from  this  proposition  to  consider  another.  It  is  a  familiar 
proposition  of  law  that  when  a  commission  or  certificate  of  election 
has  been  delivered  to  an  officer  and  he  accepts  it  and  enters  upon  tho 
performance  of  the  duties  of  that  office,  he  becomes  an  officer  dcjnre 
et  de  facto  in  all  courts,  in  all  places,  under  all  circumstances,  except 
when  his  title  shall  be  impeached  by  quo  warranto,  certiorari,  or  con 
test  proceeding  under  a  statute  for  contest.  This  evidence  is  here 
presented  by  E.  A.  Cronin,  J.  N.  T.  Miller,  and  John  Parker.  They 
come  hero,  Cronin  as  a  certificated  elector  having  vouched  in  Miller 
and  Parker  to  vote  with  him  in  consequence  of  the  refusal  of  Cart- 
wright  and  Odell  to  act  with  him.  I  will  stop  a  moment  simply  to 
say  that  in  my  judgment  the  statements  contained  in  the  record  in 
connection  with  certificate  No.  2  are  confirmed  and  placed  beyond 
the  possibility  of  a  doubt  by  the  statements  contained  in  certificate 
No.  1.  Mr.  Crouin  says  (and  he  presents  the  authentic,  official  advice 
to  this  Commission  of  his  election  and  the  election  of  Odell  and  Cart- 
wright)  that  they  refused  to  act  with  him,  and  they  say  that  they 
were  elected  with  Watts,  and  that  they  organized  with  Watts  by  ac 
cepting  the  resignation  of  Watts  and  electing  into  the  place  thus 
made  vacant  by  the  declination,  of  Watts  Mr.  Watts  himself. 


I  respectfully  submit,  Mr.  President  and  gentlemen  of  the  Com 
mission,  that  there  is  no  contradiction  between  these  certificates.  Mr. 
Cronin  was  in  possession  of  the  official  decision  and  determination  of 
the  canvassers  of  Oregon.  He  proposed  to  act.  Mr.  Watts's  name 
is  not  in  the  official  decision  and  determination  of  the  canvassers  of 
Oregon,  but  was  excluded  by  them.  Mr.  Watts  proceeded  to  act  with 
Odell  and  Cartwright.  They  did  not  say,  as  my  learned  friend  who, 
closed  tho  argument  for  tho  objectors  would  have  this  Commission  to 
understand,  that  they  (Odell  and  Cartwright,  with  Cronin)  made  tho 
board  and  that  Croniu  refused  to  act  with  them.  There  is  no  refusal 
without  an  opportunity.  They  proceeded  to  exclude  Crouin  by  ac 
cepting  Watts's  resignation. 

Mr.  Commissioner  ABBOTT.  Is  there  any  allegation  anywhere  on. 
that  certificate  that  they  refused  to  act  with  Crouiu  or  Croiiiu  refused 
to  act  with  them  ? 

Mr.  HOADLY.  Croniu's  name  is  not  in  that  certificate.  He  ia 
ignored  utterly  and  entirely.  Odell  and  Cartwright  state  that  they/ 
acted  with  Watts,  that  they  met  with  Watts,  that  they  accepted! 
Watts's  resignation  and  elected  Watts  to  take  the  place  of  Watts,, 
all  the  while  it  being  shown  by  the  official  decision  and  determina 
tion  that  Crouin  was  ready  to  act,  Crouin  alleging,  with  Miller  and 
Parker,  that  they  refused  to  act  with  him,  and  they  alleging,  without 
naming  him,  that  they  did  refuse  to  act  with  him  by  alleging  that 
they  did  act  without  him  and  with  Watts. 

I  was  wrong  in  saying  that  their  record  docs  not  name  Croniu.  It 
does  name  him,  but  it  names  him  to  confirm  the  statement  I  just  made. 
Certificate  No.  1  says  that  Odell  and  Cartwright  required  of  the  gov 
ernor  and  the  secretary  of  state  certified  lists,  which  both  those  offi 
cers  refused  to  give  them,  thus  adding  to  their  official  decision  and 
determination  a  refusal  to  give  such  evidence  to  anybody  else. 

Mr.  Commissioner  EDMUNDS.     That  is  the  affidavit. 

Mr.  HOADLY.     It  is  in  the  record. 

Mr.  Commissioner  EDMUNDS.  I  do  not  know  that  it  makes  any 
difference. 

Mr.  HOADLY.  And  so  far  as  evidence  aUundc  the  lists  may  be  con 
sidered,  (a  question  which  this  Commission  may  yet  be  called  upon 
to  decide,)  they  do  say  : 

And  being  informed  that  such  lists  had  been  delivered  to  one  E.  A.  Cronin  by 
said  secretary  of  state,  we,  each  and  all — 

That  is,  Watts,  Odell,  and  Cartwright,  each  and  all — 

demanded  such  certified  lists  of  said  E.  A.  Cronin  ;  but  he  then  and  there  refused 
to  deliver  or  to  exhibit  such  certified  lists  to  us  or  either  of  us. 

And,  therefore,  Mr.  Croniu  produces  the  lists  which  do  not  contain 
the  name  of  Watts.  I  was  going  on  to  say  that  a  certificated  or  com 
missioned  officer  who  enters  upon  the  discharge  of  duty  is  an  officer 
dcjare  ct  de  facto  in  all  tribunals,  in  all  places,  with  reference  to  any 
action  of  his  in  his  office  until  challenged  by  writ  of  quo  icarranlo  and 
contest  of  election  or  a  writ  of  certiorari.  The  lists  provided  for  by 
the  one  hundred  and  thirty-sixth  section  of  the  Revised  Statutes  and 
the  sixtieth  section  of  the  statutes  of  Oregon  being  held  by  E.  A. 
Cronin  did  make  him  an  elector  dcjure  ct  de  facto  as  to  all  persons,  ex 
cept  the  State  challenging  upon  quo  icarranto,  or  except  upon  certiorari, 
or  except  upon  contest  of  election ;  and  to  that  proposition  I  desire 
to  direct  a  few  remarks,  which  will  be  mainly  in  the  way  of  referring 
to  authority. 

I  will  read  first  from  the  case  of  The  People  vs.  Miller,  16  Michigan 
Reports,  page  56.  Your  honors  will  find  these  cases  all  cited  in  the 
small  brief,  not  in  the  large  brief  ;  your  honors  have  been  furnished 
each  with  one  copy  of  the  small  brief.  It  is  tho  opinion  of  his  honor 
Mr.  Justice  Christiaucy,  and  concurred  in  by  Judge  Cooley  and  Judge 
Campbell,  and  I  am  sure  I  need  not  say  in  this  Hall  that  an  opinion 
from  such  a  source  with  such  confirmation  cannot  be  challenged  with 
safety  in  any  court  of  justice  in  tho  land. 

Tho  certificate  of  election,  whether  rightfully  or  wrongfully  given,  confers  upon 
the  person  holding  it  tho  primafacie  right  of  holding  it  for  tho  term,  and  thisprima 
facie  right  is  subject  to  be  defeated  only  by  his  voluntary  surrender  of  the  office, 
or  by  a  judicial  determination  of  the  right.  We  do  not  mean  to  say  that  if  the  re 
spondent  had  abandoned  or  should  abandon  his  claim  to  tho  office  under  tho  elec 
tion,  witnessed  by  tho  certificate  admitting  the  rclator's  right,  that  the  board 
might  not  have  received  and  approved  thordator's  bond,  but  they  certainly  had  no 
jurisdiction  to  try  the  validity  of  tho  election  as  between  tho  relator  and  tho  re 
spondent,  and  in  such  a  contest  the  certificate  of  election  was  conclusive  upon  them 
until  tho  right  should  bo  judicially  tried. 

The  head-note  of  the  case  is: 

The  certificate  of  election,  whether  rightfully  or  wrongfully  given  by  the  board 
of  canvassers,  confers  upon  tlio  person  holding'it  the  primafacie  right  to  tho  office 
until  his  right  is  rejected  by  a  voluntary  surrender  or  by  ajudicial  determination 
against  him. 

This  proposition  has  been  three  times  solemnly  decided  in  the  State 
of  Pennsylvania  in  three  cases  to  which  I  will  direct  your  honors,  be 
ginning  with  the  case  of  Commonwealth  ex  relative  Ross  vs.  Baxter, 
35  Pennsylvania  State  Reports,  page  263  : 

A  return  by  the  election  officers  that  A  B  received  a  majority  of  tho  votes  .for 
a  townsip  office  is  legal  and  prima  facie  evidence  of  his  title  to  tho  office ;  and  it 
can  only  bo  net  aside  by  proceedings  for  a  false  return  under  tho  act  of  July  2, 1839. 
It  cannot  bo  inquired  into  by  quo  warra/ito. 

So  in  the  forty-first  volume  Pennsylvania  State  Reports,  Kulseman 
and  Brinkworth  vs.  Reeves  and  Shier,  page  401,  a  case  of  great  inter 
est  in  many  respects.  I  read  from  pages  400  and  401.  It  was  an 
action  in  equity  for  an  injunction,  for  in  Pennsylvania  it  is  held  that 


154 


ELECTORAL  COMMISSION. 


a  conflict  between  two  officers  claiming  right  may  be  decided  under 
certain  circumstances  by  injunction  in  equity  : 

"Wo  have,  therefore,  no  ground  left  for  our  interference  but  the  single  one  that 
the  return  judges  included  in  their  enumeration  returns  purporting  to  bo  from 
three  companies  of  volunteers,  which  wore  mere  forgeries.  Wo  admit,  therefore, 
that  the  evidence  proves  that  these  certificates  of  the  election  of  tho  defendants 
are  founded  in  manifest  fraud,  tho  forgery  of  some  unknown  pel-son,  but  wo  do 
not  find  that  the,  defendants  had  any  hand  in  it ;  and  we  trust  they  had  not.  Can 
wo  on  this  account  interfere  and  declare  tho  certificates  void  ? 

Mr.  Commissioner  HOAR.     Who  were  the  defendants  in  that  case  ? 

Mr.  HOADLY.  It  was  a  proceeding  in  equity  by  John  Htilsemau 
and  George  Brinkworth,  citizens  and  qualified  voters,  against  James 
Reeves  and  Charles  B.  Siner. 

Mr.  Commissioner  HOAR.  Were  they  the  persons  claiming  the 
office? 

Mr.  HOADLY.  They  were  the  persons  claiming  the  office  and 
holding  the  certificates  of  election. 

According  to  onr  laws  tho  election  has  passed  completely  through  all  its  forms, 
the  result  has  been  in  duo  form  declared  and  certified,  and  the  defendants  have  re 
ceived  their  certificates  of  election,  and  are  entitled  to  their  seats  as  members  of 
the  common  council.  The  title-papers  of  their  offices  are  complete  and  have  tho 
signatures  of  tho  proper  officers  of  tho  law;  and  if  they  are  vitiated  by  any  mis 
take  or  fraud  in  tho  process  that  has  produced  them  this  raises  a  case  to  bo  tried  by 
tho  forms  of  "  a  contested  election  before  the  tribunal  appointed  by  law  to  try 
such  questions,  and  not  by  the  ordinary  forms  of  legal  or  equitable  process  before 
tho  usual  judicial  tribunals.  It  is  part  of  the  process  of  political  organization  and 
not  a  question  of  private  rights,  and  therefore  the  constitution  does  not  require 
that  the  courts  shall  determine  its  validity. 

In  Kerr  and  others  vs.  Trego  and  others,  47  Pennsylvania  State  Re 
ports,  page  292,  the  syllabus  is  : 

In  all  bodies  that  are  under  law,  where  there  has  been  an  authorized  election  for 
the  office  in  controversy,  the  certificate  of  election  which  is  sanctioned  by  law  or 
usage  is  the  prima  facie  written  title  to  the  office,  and  can.  only  be  set  aside  by  a 
contest  in  tho  forms  prescribed  by  law. 

To  the  same  effect  the  case  of  The  People  vs.  Cook,  in  4  Soldeu's  Re 
ports,  page  68 : 

Tho  certificate  of  tho  board  of  canvassers  may  bo  conclusive  of  tho  election  of 
an  officer  in  a  controversy  arising  collaterally,  or  between  the  party  holding  it  and 
a  stranger.  But  between  the  people  and  the  party  in  an  action  to  impeach  it,  it  is 
only  prima  facie  evidence  of  the  right.  It  is  the  will  of  the  electors  and  -not  the 
certificate  which  gives  tho  right  to  the  office. 

So  again  in  33  New  York  Reports.  I  will  read  from  page  GOO,  the 
case  of  Hadley  vs.  Mayor.  It  was  a  case  of  a  policeman  for  salary. 
In  other  words,  it  was  an  action  in  which  tho  question  arose,  as  it 
arises  here,  collaterally ;  it  did  not  arise  by  quo  warranto  ;  it  did  not 
arise  by  certi-orari;  it  did  not  arise  by  contest ;  it  arose  as  here  : 

Tho  second  exception  was  to  tho  decision  by  which  the  court  excluded  the  in 
spectors'  returns.  Tho  object,  I  suppose,  was  to  show  that  the  returns  elected  Mr. 
Quackenbush  and  not  Mr.  Perry.  Hut  tho  law  having  committed  to  the  common 
council  the  duty  of  canvassing  the  returns  and  determining  tho  result  of  tho  elec 
tion  from  them,  and  the  council  having  performed  that  duty  and  made  a  determi 
nation,  the  question  as  to  the  effect  of  the  returns  was  not  open  for  a  determination 
by  a  jury  in  an  action  in  which  tho  title  of  tho  officer  came  up  collaterally.  If  the 
question  had  arisen  upon  an  action  in  the  nature  of  a  quo  warranto  information,  tho 
evidence  would  have  been  competent.  But  it  would  bo  intolerable  to  allow  a  party 
affected  by  the  acts  of  a  person  claiming  to  be  an  officer  to  go  behind  tho  official 
determination  to  prove  that  such  official  determination  arose  out  of  mistake  or 
fraud. 

So  also  in  Butcher's  Reports,  New  Jersey,  page  355,  the  case  of  The 
State  vs.  The  Clerk  of  the  County  of  Passaic : 

A  quo  warranto  is  tho  legal  and  usual  mode  in  which  title  to  office  may  bo  tried 
and  finally  adjudicated. 

The  determination  of  tho  board  of  county  canvassers  has  no  such  final  effect  as 
to  interfere  with  a  full  investigation  of  the  result  of  an  election  upon  a  writ  of  quo 
warranto. 

Again,  on  page  356 : 

In  the  present  instance  the  writ  appears  to  have  been  designed  as  ancillary  to 
the  application  fora  mandamus,  in  order  to  bring  before  the  court  the  decision  of 
toe  board  of  county  canvassers  and  the  evidence  upon  which  it  was  founded.  That 
application  having  been  denied  and  tho  office  having  been  tilled,  a  decision  upon 
tho  validity  of  tho  proceedings  of  tho  board  would  be  nugatory.  It  would  neither 
vacate  the  commission  which  has  been  issued  nor  avail  the  plaintiff  in  any  subse 
quent  proceedings  which  may  bo  instituted  to  determine  his  rights.  If  tho  deter 
mination  of  the  board  of  county  canvassers  partakes  at  all  of 'the  character  of  a 
judicial  act.  it  certainly  has  no  such  final  or  conclusive  effect  as  to  interfere  with 
the  full  and  free  investigation  of  the  legal  result  of  the  election  upon  a  writ  of  QUO 
warrant®. 

So  in  Minnesota,  in  the  fifteenth  volume  of  Minnesota  Reports,  page 
455,  a  decision  of  a  court,  one  of  the  members  of  whom  is  an  honored 
member  of  the  present  United  States  Senate,  Mr.  McMillan,  State  of 
Minnesota  ex  rel.  R.  A.  Briggs  vs.  O.  A.  Churchill,  auditor,  &c.: 

Under  tho  laws  of  this  State  the  result  of  tho  canvass  by  a,  board  of  county  can 
vassers  is  a  decision  and  determination  of  tho  election  of  tho  persons  whom  they 
declare  to  be  elected . 

The  abstract  of  tho  canvass  of  tho  votes  in  the  form  prescribed  in  the  statute  is 
the  authentic  and  official  evidence  of  tho  canvass  by  the  board  by  which  tho  county 
auditor  is  to  be  governed  in  issuing  the  certificates'  of  election. ' 


issued  and  determine  tho'correctness  of  the  canvass  involves  the  determination  of 
the  right  of  tho  holder  of  the  certificate  to  the  office ;  this  cannot  bo  done  upon 
mandamus. 

And  so  in  three  cases  in  the  twenty-fifth  volume  of  the  Louisiana 
Annual  Reports.  Certainly  whatever  authority  this  volume  may  have, 
whatever  respect  or  want  of  respect  may  be  shown  to  it,  it  is 'not  for 
those  here  who  have  sustained' before  this  tribunal  the  acts  of  the 
State  government  of  which  tho  authors  of  this  volume  are  part  and 


parcel  to  challenge  the  decision  made  by  the  court  of  which  Mr.  Lud- 
eling  was  chief-justice.    In  The  State  vs.  Wharton,  page  3,  they  say: 

"Where  two  sets  of  officers  claim  to  bo  the  legal  board  of  returning  officers,  it  is 
difficult  to  conceive  why  this  is  not  a  judicial  question. 

The  governor  is  not  vested  with  tho  extraordinary  discretion  to  determine  who 
are  the  returning  officers  under  the  law. 

In  Collin  vs.  Knoblock  and  others,  page  563,  they  say : 

The  adjustment  and  compilation  of  election  returns,  determining  the  number  of 
legal  and  illegal  votes  cast  for  each  candidate,  declaring  the  result  of  an  election 
and  furnishing  the  successful  candidate  with  the  proper  certificate,  in  short, 
superintending  and  controlling  all  tho  details  of  an  election,  belong  properly  to  the 
political  department  of  the  government. 

In  The  State  on  tho  relation  of  Bonner  vs.  Lynch,  page  267,  they 
say: 

The  defendant  having  been  returned  by  tho  legal  returning  board  of  the  State- 
as  elected  judge  of  the  fourth  district  court  of  New  Orleans,  and  upon  that  return 
the  acting  governor  having  issued  a  commission  to  him  according  to  law,  it  cannot 
be  said  that  one  holding  an  office  under  such  a  commission  has  intruded  into  or 
unlawfully  holds  the  office. 

In  the  twentieth  volume  of  Vermont  Reports,  page  473,  in  tho  case 
of  Overseer  of  the  Poor  of  Norwich  vs.  Halsey  J.  Yarriugton,  the 
court  say  : 

When  a  person,  acting  as  justice  of  the  peace,  holds  a  commission  for  that  office 
from  the  governor,  under  tho  seal  of  the  State,  the  court  will  not  go  behind  that 
commission  to  inquire  whether  ho  had  been  duly  appointed,  to  that  office  by  the 
General  Assembly  of  tho  State  or  not. 

So  in  three  cases  in  the  State  of  Ohio. 

Mr.  Commissioner  MILLER.  That  was  not  in  a  proceeding  directly 
against  him  to  invalidate  the  act? 

Mr.  HOADLY.  Of  course  if  it  had  been  a  quo  warranto,  a  certiorari, 
or  a  contest,  the  question  would  have  arisen  judicially  and  properly  ; 
but  it  was  not.  It  was  a  complaint  in  regard  to  a  transaction  in 
bastardy,  where  the  woman  for  the  space  of  thirty  days  had  neg 
lected  to  charge  a  putative  father,  and  a  controversy  thereupon  arose. 
So  in  three  cases  in  the  State  of  Ohio,  in  which  it  was  decided  by  tho 
supreme  court  of  that  State  each  time  that  a  proceeding  to  try  a  title 
to  an  office  was  a  judicial  proceeding.  In  one  of  those  cases  the  su 
preme  judicial  court  of  the  State  of  Ohio  were  called  upon  to  pass 
upon  one  of  the  most  important  questions  that  ever  arose  in  the  State. 
It  had  been  decided  in  the  county  of  Wayne  that  John  K.  McBride 
was  elected  probate  judge  of  the  county  of  Wayne  by  reason  of  the 
fact  that  the  law  allowing  the  soldiers  of  that  county  in  the  field, 
out  of  tho  State  of  Ohio,  to  vote,  was  not  in  conformity  with  the 
constitution  of  the  State  of  Ohio;  and  the  cause  was  taken  by  writ 
of  error  to  the  supreme  court  of  Ohio.  The  first  question  that  court 
was  called  upon  to  decide  was  whether  this  was  a  judicial  question 
which  could  be  removed  by  petition  in  error,  in  accordance  with  our 
forms  of  practice,  to  that  court ;  and  the  court  decided  that  it  was  ; 
that  a  proceeding  to  contest  the  election  of  John  K.  McBride  was  a 
judicial  proceeding,  and  the  commission  having  been  delivered  to 
him  or  to  his  antagonist,  I  forget  which,  the  decision  and  ascertain 
ment  of  who  the  truly  elected  probate  judge  of  the  county  of  Wayne 
was  was  a  judicial  determination  and  decision  properly  conducted  in 
that  cause.  To  the  same  effect  is  tho  case  of  The  State  vs.  The  Com 
missioners  of  Marion  County,  14  Ohio  State  Reports,  57d,  and  the 
case  of  Powers  vs.  Reed  and  others,  19  Ohio  State  Reports,  205,  206, 
in  which  the  question  that  arose  was  whether  the  declaration  as  to 
the  result  of  an  election,  upon  which  depended  the  change  of  the 
county  seat  of  Wood  County  from  Bowling  Green  to  Perrysburgh,  or 
from  Perrysburgh  to  Bowling  Green,  was  a  judicial  declaration,  and  it 
was  argued  before  the  supreme  court  of  Ohio,  as  your  honors  will  find 
by  reference  to  that  case,  by  one  of  the  first  lawyers  in  the  Western 
States,  a  gentleman  who  had  filled  tho  highest  place  in.  the  judicial 
department  in  the  State  of  Ohio — I  mean  Judge  Ranney — and  whose 
abilities  arc  equal  to  the  positions  he  has  held,  that  that  question  was 
a  political  question,  and  not  a  judicial  question.  But  his  argument 
was  overruled  by  the  unanimous  opinion  of  tho  court. 

So  in  the  case  of  Morgan  vs.  Quackenbush,  which  was  cited  to  us  the 
other  day — I  will  read  a  passage  or  two — decided  by  Mr.  Justice  Ira 
Harris.  I  will  read  from  page  72  of  22  Barbour.  The  passage  which 
I  will  read  is  not  on  my  brief.  I  have  copied  it  into  the  margin : 

The  certificate  of  a  board  of  canvassers  is  evidence  of  the  oerson  upon  whom  tho 
office  lias  been  conferred.  Upon  all  questions  arising  collaterally,  or  between  a 
party  holding  a  certificate  and  a  stranger,  it  is  conclusive  evidence;  but  in  a  pro 
ceeding  to  try  the  right  to  office,  it  is  only  prima  facie  evidence. 

Again,  on  page  79 : 

If  the  certificate  of  tho  canvassers  declaring  Mr.  Perry  elected  vested  him  with 
colorable  title  to  the  office,  as  I  think  it  did,  so  that  ho  had  a  right  to  enter  upon 
the  discharge  of  its  duties,  another  effect  of  that  decision  was  to  exclude  tho  defend 
ant,  Quackenbush,  as  well  as  everybody  else,  from  the  office.  They  could  not  hold 
as  tenants  in  common,  each  having  a  legal  right  to  perform  its  functions.  If  Mr. 
Perry  became  mayor  de  facto,  tho  defendant  Quackeubush,  whatever  his  right,  could 
not  be  mayor  in  fact  at  tho  same  time. 

My  proposition  is  that  E.  A.  Cronin  became  vested  with  the  title 
and  the  office,  if  it  may  be  called  an  office,  at  least  with  the  right  to 
discharge  the  trusts  and  functions  of  an  elector,  by  the  certificate  of 
the  governor  of  Oregon,  attested  by  the  secretary  of  state  under  the 
great  seal  of  the  State,  and  that  this  made  him  de  facto  elector  so  that 
the  office  could  not  be  held  at  the  same  time  as  tenant  in  common  or 
otherwise  by  John  W.  Watts.  He  was  the  incumbent ;  and  the  only 
reply  that  I  care  to  make  to  the  argument  which  is  founded  on  the 
statute  of  Oregon  with  regard  to  vacancies,  is  that  that  statute  re- 


ELECTORAL  COMMISSION". 


155 


lates  to  and  authorizes  an  incumbent  to  resign  and  does  not  author 
ize  a  claimant  to  resign,  even  though  ho  be  claiming  de  jure  against 
an  incumbent  de  facto  holding.  I  am  not  now  alluding  to  the  statute 
of  Oregon  with  regard  to  the  election  of  electors,  but  to  the  statute 
in  regard  to  tilling  vacancies  in  State  offices.  That  I  do  not  think 
your  honors  will  tind  has  any  reference  to  this  case  at  all  under  any 
circumstances. 

Again,  in  Coolidge  vs.  Brigham,  1  Allen,  335,  Chief -Justice  Bigelow, 
pronouncing  the  opinion  of  the  whole  court,  said : 

The  magistrate  before  whom  the  action  was  originally  brought  was  an  officer 
de  facto.  He  was  not  a  mere  usurper,  undertaking  to  exercise  the  duties  of  an 
office  to  which  lie  had  no  color  of  title.  He  had  an  apparent  right  to  the  office. 
Ho  had  a  commission  under  the  great  seal  of  the  State,  hearing  the  signature  of 
the  governor,  with  his  certificate  thereon,  that  the  oaths  of  office  had  been  duly  ad 
ministered,  and  in  all  respects  appearing  to  have  been  issued  with  the  formalities 
required  by  the  constitution  and  laws  of  the  Commonwealth.  Ho  was  thus  invested 
with  the  apparent  muniments  of  full  title  to  the  office.  Although  he  might  not 
have  been  an  officer  dejuie,  that  is,  legally  appointed  and  entitled  to  hold  and  enjoy 
the.  office  by  a  right  which  could  not  on  duo  proceedings  being  had  bo  impeached 
or  invalidated,  he  was  nevertheless  in  possession,  under  a  commission  prima  facie 
regular  and  legal,  and  performing  the  functionsof  the  office  under  acoloraud  show 
of  right.  This  made  him  a  justice  of  the  peace  de  facto. 

So  your  honors  will  tind,  unless  something  can  be  discovered  by 
more  diligent  search  than  I  have  made,  and  1  have  been  very  diligent, 
that  when  a  man  holds  a  certificate  or  a  commission  according  to 
which  may  be  the  ordinary  evidence  of  title,  and  enters  upon  the 
possession  of  the  office,  he  is  an  officer  defaclo,  the  office  is  full,  there 
can  be  no  other  officer  de  facto.  His  title  can  be  impeached  only  judi 
cially.  It  may  be  taken  from  him  by  quo  warranto  ;  it.  may  be  taken 
by  certiorari  ;  it  may  be  taken  from  him  by  proceedings  to  contest  his 
election  ;  but  in  the  absence  of  these  three  methods  of  proceeding  his 
title  is  perfect  against  all  the  world.  Where  is  the  quo  warranto 
against  E.  A.  Crouin  ?  It  may  be  said  that  there  was  a  very  short 
time.  No  shorter,  your  honors,  than  was  given  in  the  case  of  Florida. 
Where  is  the  ci-rtiorarif  Where  was  the  proceeding  to  contest? 
Here  comes  E.  A.  Croniu  with  the  certificate  of  election  under  the 
great  seal  of  Oregon,  signed  by  the  secretary  of  state,  signed  by  the 
governor,  and  no  judicial  proceeding  to  impeach  it.  Is  this  tribunal 
a  judicial  tribunal  ?  And  were  it  a  judicial  tribunal,  long  ago  frauds 
that  were  ottered  to  be  proven  your  honors  in  the  case  of  Louisiana 
would  have  been  heard  and  redressed.  Were  this  a  judicial  tribunal, 
long  ago  the  wrongs  that  were  done  in  Florida  would  have  been 
heard  and  redressed.  But  this  is  a  legislative  body,  or  part  of  a  leg 
islative  body,  delegates  from  the  legislative  body  of  the  United  States, 
without  power  to  exercise  any  judicial  function  whatever.  You  can 
not  try  upon  quo  warranto  ;  you  cannot  try  upon  certiorari ;  you  can 
not  permit  proceedings  to  contest  elections.  The  judicial  power  of 
the  United  States  has  been  confided  to  the  judges  of  the  Supreme 
Court  of  the  United  States  and  of  the  inferior  courts,  and  this  is  not 
the  Supreme  Court  of  the  United  States,  nor  any  other  court,  inferior 
or  otherwise. 

If  it  be  thought  that  my  argument  is  inconsistent  with  what  has 
been  argued  by  others  in  the  cases  of  Florida  or  Louisiana,  I  have  to 
reply  that  it  is  consistent  with  a  perfect  respect  for  the  decisions  of 
this  tribunal.  It  is  not  for  counsel  to  exhibit  such  disrespect  to  this 
tribunal  as  to  attempt  to  overrule  or  overthrow  its  decision.  The  ob 
ject  of  this  argument  is  to  enforce  the  decisions  of  this  tribunal  and 
cause  their  application  to  the  State  of  Oregon  in  such  way  that  the  de 
cisions  made  in  Florida  and  Louisiana  shall  not  have  the  effect  to  re 
verse  the  judgment  which  the  people  of  the  United  States  on  the  7th 
of  November  last  pronounced.  Your  determination,  which  is  my 
highest  authority,  written  in  your  decisions,  pronounced  as  the  re 
sult  of  your  conscientious  examination,  is  to  you  a  higher  authority 
than  any  expression  of  persuasive  opinion,  however  cogent,  that  I 
might  cite  from  the  decisions  of  courts,  however  respectable,and  there 
fore  I  commend  it  to  this  tribunal  as  final  and  conclusive  evidence  of 
the  principles  and  rules  of  action  which  this  tribunal  ought  to  adhere 
to  and  apply  in  this  case. 

But,  if  otherwise,  I  will  submit  that  upon  the  merits  of  this  con 
troversy,  going  behind  for  the  present  the  propositions  I  have  made, 
your  honors  should  be  required  to  decide  in  favor  of  the  Cronin  vote. 
Here  I  desire  to  call  your  honors'  attention  to  two  propositions  :  first, 
that  the  papers  inclosed  with  the  certificate  No.  1  are  of  no  value  as 
evidence  by  being  in  that  certificate  or  otherwise  unless  they  are 
shown  to  be  duly  authenticated  in  conformity  with  the  laws  of  Ore 
gon.  I  read  from  section  78  of  Freeman  on  Judgments : 

Nothing  can  be  made  a  matter  of  record  by  calling  it  by  that  name,  nor  by  in" 
sorting  it  among  the  proper  matters  of  record. 

And  from  27  Connecticut  Reports,  Nichols  vs.  City  of  Bridgeport. 
This  is  not  on  my  brief.  The  question  was  only  called  to  my  atten 
tion  by  hearing  the  debate  of  the  objectors  to  certificate  No.  2. 

Mr.  Commissioner  GARFIELD.  The  point  you  are  making  now  is 
on  your  brief  ? 

Mr.  HOADLY.  It  is  not.  I  did  not  know  what  was  contained  in 
certificate  No.  2  until  this  afternoon.  I  read  from  27  Connecticut, 
page  465 : 

Between  the  reservation  of  the  case  and  the  term  to  which  it  bad  been  continued 
to  await  our  advice,  it  is  obvious  that  there  were  no  proceedings  in  the  superior 
court,  and  that  whatever  proceedings  took  place  in  the  case  were  in  this  court,  and 
consequently  that  there  were  no  proceedings,  excepting  the  continuance  of  it,  which 
it  was  the  duty  or  province  of  the  clerk  of  the  superior  court,  or  which  it  would 
have  been  proper  for  him  to  record  as  a  part  of  the  doings  of  that  court ;  and, 
plainly,  it  is  only  of  the  doings  of  that  court  that  the  plaintiff  in  error  can  complain 


on  this  writ  of  error.  Such  being  the  case,  the  reservation  by  that  court  cannot 
properly  be  regarded  as  a  part  of  its  record,  notwithstanding 'it  has  been  inserted, 
as  if  it  were  a  part  of  it,  by  the  clerk  or  certified  by  him  to  bo  such;  for  if  it  ia 
not,  in  its  nature,  a  proper  matter  of  record  in  the  case,  it  cannot  be  made  such  by 
the  mere  circumstance  that  it  has  lleen  so  inserted  or  attested.  He  cannot  make 
it  a  record,  if,  from  its  qualities,  it  is  not  so,  either  by  treating  it  as  such  or  calling 
it  by  that  name. 

An  observation  came  from  the  other  side  a  little  while  ago  that  at  the 
common  law  the  secretary  might  certify.  He  might  exemplify  a  stat 
ute  of  the  State,  but  where  is  the  authority  in  the  law  of  Oregon  for  the 
secretary  to  furnish  by  certificate  evidence  of  anything  else  ?  When 
it  has  been  produced,  my  learned  colleague  who  is  to  reply  in  this 
case  will  comment  upon  it  if  there  be  any  such  statute  in  existence. 
As  he  well  suggests,  the  question  is  not  what  he  might  certify,  but 
whether  it  is  evidence  when  ho  has  certified  it.  But  I  say  ho  can 
not  certify,  so  far  as  I  am  at  present  advised. 

In  the  next  place  the  question  arises,  going  behind  these  matters 
and  going  to  what,  if  evidence  were  received,  might  be  called  the 
merits  of  this  controversy — the  question  arises,  What  is  the  law  of 
Oregon — not  the  general  American  public  law,  but  the  law  of  Ore 
gon  with  regard  to  the  election  of  electors  under  circumstances  like 
the  present  ?  It  has  been  argued  and  seriously  claimed  that  the  gov 
ernor  of  Oregon  had  no  right  to  pass  upon  the  eligibility  of  electors  ; 
that  he  was  bound  to  see  the  Constitution  of  the  United  States  vio 
lated;  that  he  was  imbecile,  without  power.  My  friends  seem  to 
deal  for  their  stock  in  trade  in  want  of  power,  imbecility.  It  was 
the  imbecility  of  this  tribunal,  according  to  their  argument,  which 
prevented  the  examination  of  the  truth  of  the  fact  with  regard  to 
Florida  and  Louisiana,  and  now  it  is  the  imbecility  of  the  governor 
of  Oregon  which  will  enable  this  tribunal  to  lend  its  aid  to  a  vio 
lation  of  the  Constitution  of  the  United  States,  although  the  governor 
refused  to  be  a  partaker  in  that  wrong.  Let  us  see. 

It  is  admitted  that  the  law  of  Indiana  is  that  where  there  is  an 
ineligible  elector  the  governor  not  only  may  but  must  take  cogni 
zance  of  the  fact  and  refuse  the  commission.  It  is  admitted  that  that 
is  the  law  of  Indiana;  that  the  governor  not  only  may  but  must 
recall  a  commission  once  issued  when  the  evidence  of  ineligibility 
growing  out  of  a  constitutional  disqualification  is  presented.  If  it  be 
law  in  Indiana,  why  is  it  not  law  in  Oregon  ?  It  is  law  in  Arkansas ; 
it  is  law  in  Missouri;  it  is  law  in  Rhode  Island  ;  it  is  law  in  Massa 
chusetts  ;  it  is  law  in  Oregon ;  and  the  authority  for  the  statement  is 
the  solemn  adjudication  of  the  supreme  court  of  each  one  of  these 
States  ;  in  all  but  two,  judicially  speaking,  in  a  controversy  between 
parties ;  in  two,  speaking  in  obedience  to  the  constitution  and  laws 
of  the  State  in  answer  to  a  demand  by  the  governor  for  judicial  infor 
mation.  It  is  the  law  of  Arkansas ;  so  held  in  two  cases  in  the  first 
volume  of  Arkansas  reports,  (Pike's  Reports;)  and  one  of  those  casesis 
a  case  which  Senator  Kelly  began  to  read  this  afternoon,  page  21, 
Taylor  vs.  The  Governor,  which  was  a  case  where,  by  the  law  of  Ar 
kansas,  a  defaulter  in  office  was  disqualified.  There  it  was  held  by 
the  supreme  court  of  that  State  that  the  governor  had  a  right  to  take 
notice  of  the  disqualification  and  withhold  the  commission,  and  not 
only  that  he  had  the  right  to  do  it,  but  that  it  was  his  duty  to  do  it. 
In  the  same  volume,  in  a  later  case,  the  exact  proposition  now  under 
discussion  was  at  great  length  considered.  I  refer  to  the  case  of  Haw 
kins  vs.  The  Governor,  pages  570  to  595.  There  it  is  said : 

Again  the  executive  is  bound  to  see  that  the  laws  are  faithfully  executed  ;  and 
he  has  taken  an  oath  of  office  to  support  the  constitution.  How  can  he  perform 
this  duty  if  he  has  no  discretion  left  him  in  regard  to  granting  commissions  ?  For 
should  the  Legislature  appoint  a  person  constitutionally  ineligible  to  hold  any  office 
of  profit  or  trust,  would  the  executive  be  bound  to  commission  him  ?  and  that,  too, 
when  his  ineligibility  was  clearly  and  positively  proven  ?  In  such  case  the  exer 
cise  of  his  discretion  must  be  admitted,  or  you  make  him,  not  the  guardian,  but 
the  violator  of  the  constitution.  What,  then,  becomes  of  his  oath  of  office  1 

Your  honors,  long,  long  ago  and  by  one  of  the  greatest  men  that 
ever  sat  in  judgment  in  the  United  States  of  America,  a  man  whose 
word  is  law  to-day,  though  the  grass  has  been  growing  over  his  grave 
now  for  nearly  half  a  century,  the  law  was  thus  laid  down. : 

It  is  argued  — 

Said  Chief-Justice  Parson,  in  5  Massachusetts,  533  — 

that  the  Legislature  cannot  give  a  construction  to  the  constitution,  cannot  make 
laws  repugnant  to  it.  But  every  department  of  eovernment  invested  with  certain 
constitutional  powers  must,  in  the  first  instance,  but  not  exclusively,  be  the  judge 
of  its  powers,  or  it  could  not  act. 

In  accordance  with  the  same  principle,  in  the  great  case  of  Martin 
vs.  Mott,  12  Wheatou,  29,  the  President  of  the  United  States  was  de 
clared  to  be  the  final  and  conclusive  judge  whether  a  case  of  insurrec 
tion  existed  calling  for  the  use  of  the  military  and  naval  forces  of 
the  United  States  for  its  suppression.  So  it  will  be  found  in  the  case 
The  State  ex  relatione  Bartley  vs.  Fletcher,  39  Missouri,  388 ;  and  if 
your  honors  will  refer  to  the  case  of  The  State  vs.  Vail,  53  Missouri, 
which  was  cited  this  afternoon  by  Mr.  Lawrence,  you  will  find  that 
the  two  cases  can  stand  together.  The  case  of  The  State  vs.  Vail  does 
not  overrule  the  Indiana  case  of  Gulick  vs.  New,  but  cites  it  and  dis 
tinguishes  it.  But  let  me  read  a  passage  from  53  Missouri  to  show 
that  the  case  in  Indiana  is  there  cited  and  not  disapproved  : 

But  in  the  case  in  Indiana,  it  is  conceded  that  where  the  candidate  receiving  the 
highest  number  of  votes  is  ineligible  by  reason  of  a  cause  which  the  voters  were 
not  bound  to  know,  such  as  lion-age,  want  of  naturalization,  &c.,  tie  result  is  a 
failure  to  elect. 

It  is  unnecessary  to  determine  whether  it  would  be  the  rule,  in  any  case  of  disqualifi 
cations,  whether  patent  or  latent. 


15(5 


ELECTORAL  COMMISSION".. 


Now  come  back  to  the  case  of  the  State  on  the  relation  of  Hartley 
vs.  Fletcher,  39  Mo.,  388.  The  opinion  was  pronounced  by  Mr.  Justice 
Wagner.  After  reciting  that  it  is  by  the  constitution  of  the  State  made 
the  auty  of  the  governor  to  commission  all  officers  not  otherwise  pro 
vided  by  law,  that  this  is  clearly  an  exercise  of  political  power  of  a 
ministerial  character,  the  court  say : 

The  governor  is  bound  to  see  that  the  laws  are  faithfully  executed,  and  he  has 
taken  an  oath  to  support  the  constitution.  In  the  correct  and  legitimate  perform 
ance  of  his  duty  he  must  inevitably  have  a  discretion  in  regard  to  granting  commis- 
Bons  •  for  should  a  person  bo  elected  or  appointed  who  was  constitutionally  ineligi 
ble  to  hold  any  oflico  of  profit  or  trust,  would  the  executive  be  bound  to  commission 
him  when  Mfl  ineligibilfty  was  clearly  and  positively  proven  ?  If  ho  is  denied  the 
exercise  of  any  discretion  in  such  case,  he  is  made  the  violator  of  the  Constitution, 
not  its  guardian.  Of  what  avail  then  is  his  oath  of  office?  Or.  if  ho  has  positive 
and  satisfactory  evidence  that  no  election  lias  been  held  in  a  county,  shall  ho  be  ro- 

S aired  to  violate  the  law  and  issue  a  commission  to  a  person  not  elected,  because  a 
erL 
beliii 


rests  upon  the  ground  that  a  constitutional  proliibition  is  interposed. — Gulick  vs. 
New,  14  Ind.,  93. 

The  issuing  of  a  commission  is  an  act  by  the  executive  in  his  political  capacity, 
and  is  one  of  the  means  employed  to  enable  him  to  execute  the  laws  and  carry  on 
the  appropriate  functions  of  the  State  ;  and  for  tho  manner  in  which  ho  executes 
this  duty  he  is  in  nowise  amenable  to  the  judiciary.  The  court  can  no  more  inter 
fere  with  executive  discretion  than  tho  Legislature  or  executive  can  with  judicial 
discretion. 

The  granting  of  a  commission  by  the  executive  is  not  a  mere  ministerial  duty, 
but  an  oilicial  act  imposed  by  the  constitution,  and  is  an  investiture  of  authority 
in  tho  person  receiving  it.  We  are  of  the  opinion,  therefore,  that  mandamus  will 
not  lie  against  tho  governor  in  a  case  like  this. 

So  in  the  case  in  Maine.  In  Maine  the  language  of  the  constitution, 
which  I  have  caused  to  be  printed  in  my  brief,  is  that  a  majority  of 
the  votes  shall  elect,  and  yet  to  the  opinion  which  was  read  by  Senator 
Kelly  this  afternoon  declaring  that  by  that  constitutional  provision 
a  majority  of  votes  for  eligible  candidates  is  meant  are  signed  the 
honored  names  of  Preutiss,  Mellen,  and  Nathan  Weston,  with  their  as 
sociate,  Albion  K.  Paris.  Tell  mo  that  tho  opinion  that  votes  for  in 
eligible  candidates  are  to  be  void  stands  upon  no  authority  in  America, 
when  the  name  of  one  of  the  greatest  judicial  lights  that  ever  illu 
minated  the  sky  of  legal  jurisprudence  in  New  England  and  of  another 
second  only  to  him  are  signed  to  that  opinion ! 

This  opinion  comes  to  us  from  one  of  the  signers  of  the  Declaration 
of  American  Independence.  The  first  judgment  ever  pronounced  in 
the  United  States  to  the  effect  that  a  million  of  people  voting  for  an 
ineligible  candidate  cannot  defeat  the  mandate  of  the  Constitution  to 
elect,  came  from  Samuel  Chase,  who  long  presided  at  the  head  of  the 
judiciary  of  Maryland,  and  as  a  member  of  the  Supreme  Court  of  the 
United  States,  against  whose  temper  much  was  said,  but  against 
whose  judicial  judgments  there  has  passed  into  history  no  sound 
criticism  whatever. 

It  has  been  said  here  this  afternoon  that  a  few  insignificant  opinions 
are  to  that  effect.  Yes,  they  are  the  insignificant  opinions  of  Samuel 
Chase,  and  Prentiss  Mellen,  and  Nathan  Weston,  and  Albion  K.  Paris, 
and  Samuel  E.  Perkins,  who,  for  a  quarter  of  a  century  has  been  a 
judge  of  the  supreme  court  of  Indiana,  and  now  by  the  vote  of  tho 
people  last  October  has  entered  upon  another  term  of  six  years.  Tho 
judicial  opinions  of  these  men  are  those  upon  which  this  doctrine  rests. 
The  time  may  come  when  justice,  blind,  deaf,  and  robbed  of  the  rest 
of  her  powers,  may  be  wafted  into  that  haven  of  intellectual  inanition 
which  the  majority  of  the  human  race  believe  is  reserved  for  that 
which  is  absolutely  perfect  when  its  earthly  work  is  done.  On  that 
day  the  names  of  these  great  jurists  and  the  recollection  of  the  wise 
counsels  they  have  left  for  us  will  be  forgotten  among  those  who 
walk  in  the  ways  of  American  jurisprudence  according  to  the  tradi 
tion  of  their  fathers,  because  on  that  day,  but  not  sooner,  a  violation 
of  tho  Constitution  will  become  a  muniment  of  office. 

But  I  was  considering  the  question  whether  the  governor  had  not 
furnished  to  us  tho  final  and  conclusive  evidence  of  tho  law  of  Ore 
gon,  and  I  had  cited  the  case  in  Arkansas,  the  case  in  Missouri;  I 
had  not  cited,  but  I  do  now  refer  your  honors  to  the  opinion  of  Mr. 
Justice  Cooley,  as  stated  in  his  work  on  Constitutional  Limitations. 
I  had  cited  the  opinions  of  the  judges  of  Maine  in  the  seventh  volume 
of  Greeuleaf's  Reports.  I  now  ask  your  attention  to  the  very  recent 
action  of  the  judges  and  executive  of  the  State  of  Rhode  Island  in 
the  case  of  Corliss,  which  is  precisely  the  action  which  was  taken  in 
the  case  of  Cronin  by  the  governor  of  Oregon.  Had  the  governor  of 
Oregon  been  invested  by  the  constitution  of  Oregon  with  the  right 
to  call  for  the  opinions  of  the  judges  and  upon  that  call  received 
them,  the  action  of  Rhode  Island  and  the  action  of  Oregon  would 
have  been  precisely  parallel.  In  Rhode  Island  the  governor  was  con 
fronted  by  the  fact  that  George  H.  Corliss  was  a  centennial  commis 
sioner  and  that  his  name  was  on  the  roll  of  men  receiving  the  highest 
number  of  votes  for  electors.  Did  he  give  him  the  certificate  ?  Did 
ho  refuse  the  certificate  ?  He  refused.  He  called  upon  the  judges  of 
Rhode  Island  for  their  judgment  and  advice.  Recollect  I  have  fur 
nished  the  law  on  this  subject  in  my  brief,  and  you  will  find  that  the 
advice  is  given  to  him  not  as  a  judicial  judgment  on  which  he  may 
pass,  but  as  advice  for  tho  guidance  of  his  executive  action,  and  he 
acted;  he  called  the  Legislature  together.  He  did  not  give  the  certi- 
cate  to  Corliss ;  he  withheld  it  from  Corliss.  Ho  called  the  Legisla 
ture  together  and  they  elected  a  man  who  received  tho  certificate  by 
force  of  the  election  by  the  Legislature.  So  in  Oregon  Senator  Kelly 
read  you  this  afternoon  the  letter  from  the  chief -justice  of  Oregon, 


from  which  it  appears  that  in  the  State  of  Oregon  it  has  been  judi 
cially  determined  that  the  governor  has  a  right,  although  a  district 
attorney  is  in  office  exercising  the  powers  and  discharging  the  duties, 
of  tho  office,  to  declare  the  office  vacant,  and  where  the  constitution* 
has  worked  a  vacation  of  the  office,  to  appoint  a  successor,  and  that' 
action  of  tho  governor  in  Oregon,  in  the  case  of  Gibbs  vs..  Bellinger,, 
was  sustained  by  the  supreme  court  of  Oregon.  The  opinion  would, 
have  been  pronounced  and  published  in  the  reports  long  ago  but  for 
the  death  of  the  lamented  Judge  Thayer,  by  whom  it  was  expected 
to  bo  written. 

Now  I  say  that  in  Oregon  as  well  as  in  Rhode  Island,  in  Maine, 
in  Arkansas,  in  Missouri,  we  are  fortified  in  the  opinion  that  the  ac 
tion  of  tho  governor  in  this  case  was  proper,  and  that  it  was  and  is. 
the  action  of  the  executive,  conclusive  and  final  as  evidence  to  this 
court  of  what  the  law  of  Oregon  is.  Why,  consider  for  one  moment. 
Suppose  the  governor  had  given  a  certificate  to  Mr.  Watts  notwith 
standing  his  disqualification,  would  not  that  have  been  evidence  that. 
Mr.  Watts  was  the  elector  ?  Would  it  not  have  been  cited  as  evidence* 
that  the  law  of  Oregon  was  that  notwithstanding  the  disqualification 
Mr.  Watts  had  a  right  to  the  certificate?  Was  not  the  governor 
called  upon,  compelled  to  elect  which  horn  of  tho  dilemma,  if  it  wero< 
such,  he  would  choose ;  which  view  of  the  law  at  least  ho  would  take?' 
Could  he  avoid  it  ?  He  must  say  by  giving  the  certificate  to  Watts, 
"Notwithstanding  the  Constitution  of  the  United  States,  and  not- 
withstaud  the  law  and  constitution  of  Oregon  say  that  I  am  to  main 
tain  the  laws,  notwithstanding  this  man  is  disqualified  by  law,  he 
shall  have  the  certificate."  What  is  the  constitution  of  Oregan  in 
this  particular  ?  Let  me  read  the  passage.  Section  10,  article  5,  of ' 
the  executive  department,  says,  that  "he,"  (the  governor)  "  shall  take- 
care  that  the  laws  be  faithfully  executed."  And  he  is  sworn  to  support! 
the  Constitution  of  the  United  States ;  and  yet  it  is  said  that  he,, 
bound  to  see  that  laws  were  ^faithfully  executed  and  to  maintain  the 
Constitution  of  the  United  States,  violated  his  duty  in  not  giving  to 
one  disqualified  by  tho  Constitution  of  the  United  States  a  certifi 
cate  of  election !  But  I  pass  from  this  proposition. 

In  the  next  place  there  was  no  vacancy  into  which  Watts  could  be 
elected.  First  there  was  an  officer,  if  it  may  be  called  such,  an  elector 
holding  office  de  facto,  and  I  refer  to  the  case  read  the  other  day  by  the 
learned  senior  counsel  on  the  other  side  from  the  eleventh  volume  of 
Sergeant  and  Rawle.  I  refer  to  the  passages  which  were  read  by  him 
to  show  that  when  there  is  in  office  an  officer  de  facto  he  completes 
tho  whole  circumference  of  the  office  and  occupies  it  all,  and  that 
there  can  be  no  vacancy  and  can  be  no  intrusion  upon  him  while  ho 
occupies  otherwise  than  by  tho  action  of  a  court  of  justice  acting 
judicially. 

Then  there  was  no  vacancy  for  the  reason  that  by  the  laws  of  the 
United  States  contemplation  is  made  of  two  contingencies,  namely, 
a  failure  to  elect,  and  a  vacancy  when  the  electors  meet ;  and  this  was 
the  first  of  these  two  cases.  Upon  that  subject  I  have  already  been 
heard  in  the  Florida  case  by  the  Commission. 

My  learned  friend,  if  he  will  allow  me  to  call  him  such,  on  the  other 
side  of  this  case,  informed  us  the  other  day  that  there  was  no  choice ; 
wo  had  to  say  office  filled  or  office  vacant ;  there  is  no  tertium  quid  no 
via  media  in  which  our  footsteps  may  be  safely  directed.  But  such  is 
not  the  law  of  the  Senate  of  the  United  States  in  this  Chamber.  I 
may  say  that  the  Senate  of  the  United  States  from  tho  foundation  of 
the  Government  has  never  deviated  from  the  rule  that  the  office  of 
Senator  cannot  be  filled  by  the  appointment  of  the  governor  of  a< 
State  when  the  Legislature  have  failed  to  create  an  incumbent  during 
its  session,  as  is  shown  by  Lanmon's  case. 

But  I  am  told  that  tho  House  decided  otherwise.  Ay,  the  House 
did  decide,  and  if  my  learned  friend  had  not  stopped  with  his  read 
ing  of  history  just  where  he  did,  he  would  have  learned  all  that  the 
House  decided  in  the  case  to  which  he  referred.  I  do  not  quote  tho 
decision  of  a  partisan  House  in  times  of  hot  party  politics  for  much, 
and  I  certainly  do  not  count  the  decision  which  was  reached  by  118 
yeas  against  101  nays  on  the  3d  day  of  October,  1837,  giving  to  Clai 
borne  and  Gholson  their  seats  as  Representatives  from  the  State  of 
Mississippi,  as  much  by  way  of  authority  when  I  find  that  in  the  list 
of  negative  votes  are  inscribed  the  names  of  John  Quincy  Adams  andv 
Millard  Fillmore,  of  John  Sergeant  and  Richard  Fletcher,  of  John 
Bell  and  Thomas  Corwin,  of  Caleb  Gushing  and  R.  M.  T.  Hunter,  of, 
Henry  A.  Wise  and  George  Evans,  of  Elisha  W'hittlesey  and  James 
Harlan  and  Thomas  M.  T.  McKennan.  That  is  a  roll  of  names  before 
which  I  bow  as  possessing  greater  authority  than  any  on  the  whole 
list  of  the  118  who  voted  in  tho  affirmative.  But  the  record  of  the 
House  does  not  stop  there.  On  Monday,  the  5th  day  of  February,  1838, 
(page  160  of  the  sixth  volume  of  the  Congressional  Globe,)  on  motion 
of  John  Bell,  of  Tennessee,  by  a  vote  of  121  yeas  to  113  nays,  the  fol 
lowing  resolution  was  adopted : 

Resolved,  That  tho  resolution  of  this  House  of  tho  3d  of  October  last  declaring 
that  Samuel  J.  Gholson  and  John  F.  H.  Claiborne  were  duly  elected  members  of 
the  Twenty-fifth  Congress  be  rescinded,  and  that  Messrs.  Gholson  and  Claiborne 
are  not  duly  elected  members  of  the  Twenty-fifth  Congress. 

First,  on  adopting  this  as  an  amendment,  the  yeas  were  119,  the 
nays  112,  and,  secondly,  on  adopting  the  resolution  as  thus  amended, 
tho  yeas  were  121,  the"  nays  113.  And  that  is  the  judgment  of  "tho 
sober  second  thought"  of"  the  House  of  Representatives  of  1837  and 
1838  on  this  question. 

Mr.  Commissioner  EDMUNDS.    Is  there  not  something  peculiar  in 


ELBCTOEAL  COMMISSION. 


157 


the  conclusion  respecting  the  filling  of  the  office  of  a  Senator  by  a 
governor  growing  out  of  the  language  of  the  Constitution,  that  where 
a  vacancy  shall  happen  during  the  recess  of  the  Legislature  the  gov 
ernor  may  fill  it  by  a  commission,  which  shall  hold  until  the  next 
meeting  of  the  Legislature?  Does  not  that  have  some  bearing  upon 
the  subject? 

Mr.  HOADLY.  No  doubt.  I  do  not  claim  that  all  the  cases  are 
precisely  parallel. 

Mr.  Commissioner  HOAR.  What  was  the  point  decided  in  that 
case  ?  Be  good  enough  to  state  it. 

Mr.  IIOADLY.  The  point  was  that  neither  Claiborne  and  Ghol- 
sou  nor  Prentiss  and  Ward  were  duly  elected  Representatives  in  the 
Twenty-lii'th  Congress. 

Mr.  Commissioner  HOAR.  That  was  not  the  point  decided  ;  that 
was  the  fact. 

Mr.  HOADLY.  The  point  decided  is  that  the  resolution  adopted 
on  the  3d  of  October,  to  which  reference  was  made  the  other  day, 
awarding  to  Claiborne  and  Gholson  their  seats  as  members  of  the 
Twenty-fifth  Congress,  was  rescinded. 

Mr.  Commissioner  HOAR.  My  question  was,  what  was  the  prin 
ciple  of  law  which  was  decided  and  for  which  you  cited  that  case  ? 

Mr.  HOADLY.  It  is  extremely  difficult  to  answer  that  question. 
There  might  be  differences  of  opinion  as  to  the  precedents.  I  do  not 
cite  this  case  as  authority  but  it  having  been  cited  in  authority 
against  me  the  other  day,  I  state  the  whole  of  the  facts  of  the  case 
in  order  that  it  shall  not  be  vouched  in  any  longer  as  authority  upon 
the  other  side.  Of  course,  where  there  was  a  political  controversy, 
my  own  private  opinion  is,  if  I  may  bo  allowed  to  indicate  it,  that 
the  party  feeling  with  the  supporters  of  Mr.  Van  Buren  and  the  an 
tagonists  of  his  administration  had  much  more  to  do  with  the  result 
thau  any  judicial  considerations  whatever. 

Mr.  Commissioner  HOAR.  Was  it  not  a  case  where  an  extra  ses 
sion  was  called  and  gentlemen  from  Mississippi  were  chosen  before 
the  general  law  permitted  them  to  be  chosen,  on  proclamation  of  the 
governor  ? 

Mr.  HOADLY.    That  is  precisely  the  case. 

Mr.  MATTHEWS.  Allow  me  to  interrupt  a  moment.  I  would  ask 
you  whether  or  not  the  resolution  of  the  House  of  Representatives 
admitting  Claiborno  and  Gholsou  to  the  extra  session  was  not  that 
there  was  a  vacancy  in  the  representation  of  Mississippi  in  the  House 
of  Representatives  in  consequence  of  the  expiration  of  the  terms  of 
the  previous  members  of  Congress,  and  the  fact  that  the  election  for 
the  members  of  the  next  Congress  did  not  occur  until  the  following 
November,  and  did  not  the  Governor  of  Mississippi  cause  that  va 
cancy  to  be  filled  by  a  proclamation,  in  which  ho  called  upon  electors 
to  elect  Representatives  to  fill  that  vacancy  ?  Was  not  the  resolu 
tion  admitting  them  as  members  of  the  Congress  resciudcd  at  the 
regular  session  because  they  were  elected  only  to  fill  a  vacancy  ? 

Mr.  HOADLY.  I  hope  this  will  not  come  out  of  my  time.  I  will  answer 
by  saying  that  the  whole  statement  is  correct  except  the  "  because." 
It  was  rescinded.  Now,  rescinding  means  withdrawing  the  original 
proposition,  and  that  is  the  language  used.  It  was  not  by  virtue  of 
a  vote  that,  the  vacancy  having  expired  or  the  time  having  expired, 
therefore  they  were  no  longer  members.  But  Mr.  Bell's  amendment 
was  that  the  original  resolution  should  be  rescinded. 

This  reminds  me  of  another  matter  which  I  had  almost  forgotten, 
and  that  is  that  my  friends  may  state  against  me  possibly  the  decision 
of  the  United  States  House  of  Representatives  in  what  is  known  as 
the  "broad-seal  case"  from  New  Jersey,  a  debate  in  which  the  Presi 
dent  of  this  learned  Commission  participated  as  a  member  of  the 
House.  My  answer  to  that,  if  it  be  cited  against  me,  will  be  that  it 
was  before  a  House  who  were  the  judges  of  the  returns  and  qualifi 
cations  of  their  own  members ;  and  a  reference  to  Cooley,  page  133, 
will  show  that  that  is  a  judicial  power  expressly  conferred  upon  the 
House. 

This  reminds  me  also  of  a  case  famous  in  the  annals  of  Ohio,  and 
which  ought  to  be  famous  in  the  annals  of  the  Federal  Union,  where 
a  question  once  arose  between  the  certificate  of  the  returning  officer 
and  the  abstract  of  the  votes,  in  which  the  judgment  arrived  at  was 
most  conspicuous  and  most  beneficent.  In  the  year  1848  the  clerk  of 
the  courj  of  common  pleas  of  the  county  in  which  I  live,  who,  by 
law,  was  the  returning  officer,  certified  under  the  seal  of  the  county 
that  George  Pugh,  Alexander  Long,  and  their  associates  were  elected 
representatives  to  the  Legislature  of  Ohio ;  and  the  abstract  of  votes, 
of  which  a  certified  copy  was  taken,  of  Oliver  M.  Spencer,  J.  W.  Ruu- 
yon,  and  their  associates  showed  that  they  had  a  majority  of  the  votes 
cast.  The  question  was  a  question  upon  the  constitutionality  of  the 
act  of  the  Legislature  of  Ohio  dividing  the  county  of  Hamilton  for 
purposes  of  icpresentation  in  the  State  Legislature.  For  thirty  days 
the  State  of  Ohio  was  without  a  Legislature,  in  anarchy  and  confu 
sion,  with  two  conflicting  parties  contending  for  pre-eminence  ;  and 
at  the  end  of  thirty  days  two  gentlemen,  still  living,  honored  citi 
zens  of  Ohio,  men  of  neither  the  whig  nor  the  democratic  party,  took 
the  responsibility  of  judging  that  the  certificate  of  the  clerk  was  the 
official  evidence  of  the  title,  and  upon  it  organized  that  Legislature. 

Mr.  MATTHEWS.  Let  me  ask  you  there  whether  or  not  both  sides 
were  not  excluded  until  after  the  organization  ? 

Mr.  HOADLY.    That  may  be ;  but  the  organization 

Mr.  MATTHEWS.  Mr.  Commissioner  PAYNE  can  answer,  prob 
ably. 


Mr.  HOADLY.  I  will  take  your  statement,  as  you  were  ono  of  the 
authors  of  the  illustrious  act  to  which  I  allude,  a  partaker  of  its 
honors  and  of  its  responsibilities ;  and  among  the  many  reasons  for 
which  the  people  of  Ohio  have  to  thank  God  that  you  have  lived,  this 
is  the  most  conspicuous. 

Mr.  MATTHEWS.     I  hope  not. 

Mr.  HOADLY.  I  will  take  your  statement.  What  did  that  act 
result  in  ?  It  made  as  its  first  result  it  possible  for  the  black  man, 
who  before  that  time  had  been  an  alien  and  a  vagabond  in  Ohio,  to 
live  on  its  soil  a  citizen  of  the  State.  It  made  it  in  the  second  place 
possible  for  him  to  bo  heard  in  a  court  of  justice  as  a  witness  against 
a  white  man.  In  the  third  place  it  made  Salmon  P.  Chase  Senator 
of  the  United  States  from  the  State  of  Ohio  and  enabled  him  to  begin 
that  illustrious  career  which  landed  him  in  the  chief -justiceship  of 
the  Supreme  Court  of  the  United  States,  in  which  he  died.  Every 
man  in  Ohio  who  joined  in  this  act  has  been  honored  by  the  people 
of  the  State.  George  E.  Pugh  has  been  Attorney-General  and  Sena 
tor  ;  Salmon  P.  Chase  twice  governor  by  the  votes  of  the  men  against 
whom  his  election  was  then  conducted.  I  think  as  a  citizen  of  Ohio 
I  have  no  reason  to  be  ashamed  of  the  doctrine  that  the  broad  seal  of 
the  county  of  Hamilton  is  better  evidence  of  title  to  office,  even  though 
the  clerk  in  issuing  it  determined  upon  the  constitutionality  of  a 
statute,  than  the  abstract  of  votes  copied  and  certified  to  by  him. 

There  is  no  vacancy  in  the  office  in  Oregon ;  I  am  coming  back  to 
that.  A  vacancy  may  exist  in  Oregon  when  "occasioned  by  death, 
refusal  to  act,  neglect  to  attend,  or  otherwise."  My  learned  friend 
Mr.  Lawrence  says  the  word  "  otherwise"  means  every  other  possible 
manner  whatsoever.  It  is  a  cardinal  rule  iu  the  interpretation  of 
statutes  that  every  word  must  have  its  force  and  that  words  will  not 
be  treated  as  superfluous  in  statutes  ;  and  yet  by  this  argument  the 
learned  gentleman  has  eliminated  all  these  words  including  the  word 
"  otherwise"  from  the  statute.  He  defines  the  word  "  otherwise"  KO 
that  it  may  as  well  bo  obliterated  from  the  law  in  which  it  is 
written : 

And  if  there  shall  be  any  vacancy  in  tho  office  of  elector  occasioned  by  death, 
refusal  to  act,  neglect  to  attend,  or  otherwise — 

This  means  that  there  are  some  vacancies  which  the  electors  pres 
ent  may  not  immediately  proceed  to  fill.  It  is  not  "if  there  shall  be 
any  vacancy  in  the  office  of  elector,  the  electors  present  shall  imme 
diately  proceed  to  fill  it,"  but  it  is  "  if  there  shall  be  any  vacancy  oc 
casioned  by  death,  refusal  to  act,  neglect  to  attend,  or  otherwise." 
That  is  the  class  of  vacancies  it  may  fill ;  not  every  vacancy.  If  it 
had  been  every  vacancy  they  might  fill,  then  these  words,  "  occasioned 
by  death,  refusal  to  act,  neglect  to  attend,  or  otherwise,"  would  have 
been  omitted.  In  order  that  these  words  may  have  their  proper  force, 
tho  word  "otherwise"  must  be  construed  in  its  ordinary  and  normal 
legal  signification,  "of  other  like  manner;"  noscitur  a.socii*  is  the  rule. 
General  words  are  restrained  by  the  fitness  of  things.  We  have  in 
the  statutes  of  Ohio  a  law  by  which  a  railroad  company  may  acquire 
and  convey  at  pleasure  all  its  real  or  personal  estate  necessary  or 
proper ;  and  yet  tho  supreme  court  of  Ohio,  in  10  Ohio  State  Reports, 
the  case  of  Coo  vs.  tho  Columbus,  Piqua  and  Indiana  Railroad  Com 
pany  have  said  that  although  the  language  of  the  statute  is  general, 
and  they  may  convey  any  real  estate  necessary  and  proper  to  be  ac 
quired  by  them,  yet  they  cannot  convey  one  foot  of  the  land  which 
is  pledged  to  the  maintenance  of  the  public  uses  for  which  they  are 
established.  They  cannot  convey  tho  track ;  they  cannot  convey  the 
right  of  way  except  by  mortgage ;  and  that  is  because  the  general 
words  are  restrained  by  tho  fitness  of  tho  subject-matter. 

"  Occasioned  by  death,  refusal  to  act,  neglect  to  attend,  or  other 
wise,"  does  not  mean  "  occasioned  by  every  possible  circumstance  on 
earth."  If  it  did  it  would  have  said  so.  It  means  ''  occasioned  by 
these  methods,"  and  not  occasioned  otherwise  except  by  these  methods 
or  the  like  unto  them,  in  like  manner;  death 

Mr.  Representative  LAWRENCE.    Death  or  something  like  death. 

Mr.  IIOADLY.  Death,  or  something  which  comes  within  the  chain 
of  thought  which  connects  these  three  enumerated  classes,  which 
means  occurrences  happening  after  election.  The  act  of  Congress 
makes  the  distinction.  It  says  if  there  is  a  failure  to  elect  the  Legis 
lature  may  point  out  what  provision  shall  be  made.  If  there  is  a 
vacancy  when  the  college  meets  the  Legislature  may  point  it  out. 
These  are  all  cases  of  vacancy  occurring  after  the  event  of  the  elec 
tion,  and  do  not  contemplate  a  vacancy  which  occurs  by  reason  of 
what  I  should  call  the  non-filling  of  the  office,  occurring  by  reason  of 
there  being  a  non-election. 

But  my  time  is  rapidly  passing  and  I  desire  to  hurry  on.  Suppose 
there  had  been  a  tie-vote  ?  Is  that  "otherwise  ?"  Does  non-election 
by  a  tie  vote  create  a  vacancy  within  the  meaning  of  that  statute? 
That  tests  the  question.  I  say  not.  Why  not?  Because  "  occasioned 
by  death,  refusal  to  act,  neglect  to  attead,  or  otherwise  "  are  words 
that  cannot  be  dispensed  with  and  nec'essarily  involve  that  there  are 
some  methods  of  occasioning  vacancy  which  are  not  within  the  stat 
ute.  It  would  have  said  "  if  there  be  any  vacancy  the  electors  pres 
ent  may  fill  it"  had  it  been  supposed  these  words  would  be  interpreted 
as  now  claimed?  A  tie  vote  involves  a  vacancy  or  what  may  be 
called  by  way  of  courtesy  a  vacancy.  It  is  a  failure  to  elect  which  is 
not  contemplated  by  this  statute  and  not  provided  for  by  this  statute, 
and  that  is  the  case  in  the  State  of  Rhode  Island  of  Corliss  or  might 
have  been.  It  was  alluded  to  iu  the  decision  in  tho  State  of  Rhode 


158 


ELECTORAL  COMMISSION. 


Island.  Yonr  honors  will  find  by  referring  to  the  brief  which  we  have 
on  file  a  large  number  of  cases  in  which  the  same  principle  is  upheld. 

Mr.  Commissioner  MILLER.  What  do  you  make  of  the  words 
"refusal  to  act?" 

Mr.  HOADLY.  An  elector  who  has  been  elected  who  refuses  to 
act  is  an  elector  who  creates  a  vacancy.  I  consider  the  word  "  other 
wise"  to  refer  to  all  cases  which  occur  after  there  has  been  a  com 
plete  election  just  as  section  133  of  the  Revised  Statutes  of  the  United 
States  provides.  Those  are  all  cases  coming  within  the  same  rule. 

Mr.  Commissioner  MILLER.  You  do  not  think  it  necessary  that 
he  should  have  accepted  or  entered  on  the  duties  of  the  office? 

Mr.  HOADLY.  The  words,  "refusal  to  act,"  modify  that  sense. 
If  it  were  not  for  those  words  and  the  power  of  the  Legislature  to 
provide  in  that  way,  I  think  the  rule  would  have  been  otherwise. 
But  where  there  is  an  elector  in  office  de  facto,  asCronin  was,  another 
party  cannot  make  a  vacancy  by  refusing  to  act.  The  ordinary  rule 
is  that  in  order  that  a  party  may  resign  he  must  be  an  incumbent. 
So  Cockburn,  chief-justice  in  The  Queen  m  Blizzard,  Law  Report,  2 
Q.  B.,  55,  held  ;  so  Sawyer  held,  now  judge  of  the  United  States  cir 
cuit  court  in  People  vs.  Tilton,  37  California ;  so  in  Miller  vs.  The  su 
pervisor  of  Sacramento  County,  25  California;  so  in  Commonwealth 
ex  rd.  Broom  vs.  Hanley,  9  Pennsylvania  State  Reports,  513.  And  it 
is  held  in  an  opinion  which  I  will  hand  to  your  honors,  received  to 
day  by  mail,  of  the  supreme  court  of  Missouri,  a  case  printed  in  the 
Central  Law  Journal  of  Saint  Louis,  volume  4,  number  7,  on  Friday 
last,  page  156,  (in  accord  with  the  views  of  the  case  to  which  I  have 
alluded,)  that  the  office  had  been  filled,  and  therefore  there  was  a 
•  vacancy ;  as  they  cite  with  approval  the  case  of  the  State  vs.  Lusk, 
18  Missouri,  to  the  effect  that  if  the  office  had  not  been  filled  by  the 
qualification  of  McCortl  and  his  death,  there  would  have  been  no  va 
cancy. 

I  have  but  a  few  moments  and  I  shall  have  to  steal  a  little  from  the 
time  which  my  brother  Merrick  and  I  have  allotted  between  us. 

Mr.  MERRICK.     Certainly. 

Mr.  HOADLY.  I  come  to  consider  the  remaining  question  in  the 
case.  I  say  that  by  Oregon  law,  as  shown  by  the  certificate  of  the 
governor  who  was  obliged  to  act,  as  well  as  by  the  better  opinion, 
the  weight  of  authority  if  not  the  weight  of  cases  in  the  United  States, 
the  mandate  to  elect  is  such  paramount  authority  that  the  people 
cannot  disobey  it  by  voting  f<ir  a  disqualified  candidate.  My  friends 
on  the  other  side,  in  order  to  maintain  their  proposition,  must  not 
only  stand  upon  a  violation  of  the  Constitution  of  the  United  States 
by  the  election  of  a  disqualified  person  ;  they  must  also  contend  that 
a  plurality  may  violate  the  Constitution  and  prevent  an  election. 
That  is  their  proposition ;  and  by  making  their  officer  de  facto  who 
did  not  hold  the  certificate  dc  facto  they  thus  manufacture  this  viola 
tion  of  the  Constitution  of  the  United  States  by  a  plurality  into  a 
muniment  of  title  to  office. 

We  have  several  things  to  consider  here:  first,  the  Constitution  of 
the  United  States  says  "  thou  shalt  elect,"  to  the  people  of  Oregon. 
If  I  may,  without  irreverence,  borrow  the  simile,  the  first  great  com 
mandment  of  the  gospel  of  American  liberty  is  "  thou  shalt  elect," 
and  the  second  is  "thou  shalt  not  elect  a  disqualified  candidate." 
The  plurality  may  elect;  and  if  the  plurality  may  elect  and  electing 
a  disqualified  candidate  defeats  an  election,  then  the  plurality  may 
defeat  an  election.  What  is  more  than  thai,  it  is  shown  upon  my 
brief  in  one  of  the  earlier  pages  of  it  that  it  would  be  perfectly  easy 
for  more  than  three  candidates  each  one  to  receive  a  majority  of  votes 
in  the  State  of  Oregon.  I  put  a  case  there  which  I  will  take  the 
liberty  to  ask  your  honors'  attention  to  for  a  moment,  because  it  fairly 
states  the  principle  which  we  are  considering;  it  is  on  page  29  of  the 
brief.  Thus  we  may  suppose  that  in  the  State  of  Oregon  where  there 
were  three  electors  to  be  chosen,  20,000  votes  may  be  cast,  divided 
among  six  candidates:  A,  B,  and  C  receive  each  9,800  votes;  D,  E, 
and  F  receive  9,700  votes.  The  remaining  500  votes  may  be  thus  dis 
tributed  :  To  A,  B,  and  D,  200  votes  ;  to  A,  C,  and  D,200  votes ;  to  B, 
C,  and  D,  100  votes.  The  result  will  be :  For  A,  10,200  ;  for  B,  10,100; 
for  C,  10,100,  and  for  D,  10,200.  Supposing,  now,  that  A  were  dis 
qualified  by  holding  a  Federal  office,  who  would  be  elected,  and  which 
rule  ought  to  be  adopted?  That  which  rejects  A  as  disqualified,  and 
B  and  C  as  not  elected,  by  reason  of  the  votes  for  them  having  re 
sulted  in  a  tie,  and  only  D  elected;  or  that  which  rejects  A  as  dis 
qualified  and  returns  B,  C,  and  D  as  elected? 

This  is  not  very  likely  to  happen  at  this  time,  when  electors  are 
mere  automata  to  register  the  votes  ;  but  when  there  shall  be  three 
parties  again,  if  that  may  ever  be,  and  that  thing  shall  happen  which 
happened  in  Pennsylvania,  that  two  of  them  coalesce  on  the  same 
list  of  electors,  with  the  intention  of  dividing  the  votes  of  the  elect 
ors  according  to  the  heads  of  the  tickets,  as  was  proposed  to  be  done 
in  Pennsylvania  in  1850,  this  thing  might  very  easily  happen  ;  and 
yet,  according  to  the  proposition  of  my  friends  on  the  other  side,  the 
result  would  be  that  the  man  having  the  highest  number  of  votes 
was  elected,  though  disqualified.  Now,  the  principle  to  govern  us 
must  be  consistent :  First,  with  the  constitutional  mandate  that  the 
State  shall  appoint.  That  is  the  mandate  of  the  Federal  Constitu 
tion  ;  it  is  the  mandate  of  the  Revised  Statutes  ;  it  is  the  mandate  of 
Oregon.  Second,  with  the  constitutional  inhibition  no  person  hold 
ing  an  office  of  trust  or  profit  under  the  United  States  shall  be  ap 
pointed.  Thirdly,  with  the  rule  that  a.  majority  vote  is  not  necessary, 
but  a  plurality  suffices  for  election.  Fourthly,'  with  the  possibility  to 


which  I  have  just  addressed  my  attention.  And,  fifthly,  to  the  fact 
that  upon  the  views  of  their  work  entertained  by  those  who  made 
the  constitution  the  candidates  for  electors  do  not  run,  like  rivals 
for  the  office  of  sheriff,  against  each  other,  but  the  choice  is  made  by 
selection  of  the  successful  candidates  out  of  the  whole  list  of  those 
named  in  that  connection. 

I  have  referred  your  honors  to  the  decision  in  Maine.  It  so  hap 
pens  that  in  the  State  of  Maine  that  opinion  of  Chief-Justice  Mellen, 
Chief-Justice  Weston,  and  Judge  Paris  became  crystallized  by  the 
legislative  department  of  the  State  as  one  of  the  laws  of  the  State  as 
early  as  1840,  and  has  remained  the  law  of  the  State  of  Maine  until 
now,  and  my  brief  refers  your  honors  to  the  law  of  the  State  of  Maine 
by  which  ballots  cast  for  ineligible  persons  are  not  to  be  counted.  It 
is' the  law  of  the  State  of  Massachusetts,  God  bless  her.  I  have  her 
book  printed  by  the  authority  of  the  State  of  Massachusetts,  being 
Reports  of  Election  Cases  in  Massachusetts.  This  book  came  from  the 
Legislature  of  Massachusetts,  and  in  it  is  a  decision  in  1849  by  a  com 
mittee  of  her  Legislature.  This  book  was  compiled  by  Judge  Luther 
S.  Gushing  and  his  associates,  by  direction  of  the  Legislature,  and 
printed  by  the  State  for  the  information  of  her  people  and  people 
over  her  borders,  in  which  it  is  stated  as  the  law  of  Massachusetts 
that— 

There  is  no  reason  why  a  person  who  votes  for  an  ineligible  candidate  sho-ild  not 
bo  put  upon  the  same  footing  with  one  who  does  not  vote  at  all,  as  iu  both  cases  the 
parties  show  a  disposition  to  prevent  an  election  and  both  of  them  show  an  unwill 
ingness  to  perform  their  duty  by  aiding  to  promote  tho^e  elections  which  are  abso 
lutely  essential  to  the  existence  of  the  government;  for  if  every  voter  refrained 
wholly  from  voting  or  voted  for  ail  ineligible  candidate,  the  result  would  be  the 
same  I  no  choice ;  and  although  it  is  true  that  no  penalty  is  attached  by  law  to  a 
neglect  of  this  obligation  of  voting,  yet  the  obligation  is  not  the  less  plain  for  that, 
and  the  committee  believe  it  to  be  a  duty  too  important  to  be  neglected  and  too 
sacred  to  be  trifled  with  by  voting  for  fictitious  persons  or  ineligible  candidates. 

Mr.  Commissioner  HOAR.  Who  is  the  gentleman  who  writes  the 
report  ? 

Mr.  HOADLY.  I  cannot  tell  you  at  this  moment.  The  book  is 
here.  I  borrowed  it  half  an  hour  of  time  from  my  brother  Merrick 
and  I  must  hurry  on.  The  book  is  here  and  published  by  authority 
of  Massachusetts,  and  contains  the  cogent  reasoning  which  I  have 
just  read  to  this  Commission. 

Maryland  spoke  in  1794,  and  in  1865  and  in  1866  the  Legislature  of 
Maryland,  acting  once  in  their  legislative  capacity  and  acting  once  in 
their  judicial  capacity,  followed  in  the  cause  of  loyalty  and  of  recon 
struction  upon  loyal  principles  the  rule  which  Chief-Justice  Chase 
laid  down  for  their  government.  I  have  the  house  journal  and  doc 
uments  of  1868  here  and  the  senate  journal  and  documents  of  the 
State  of  Maryland  for  1865,  which  have  been  kindly  furnished  me  by 
a  friend  in  Baltimore  in  order  that  I  might  present  the  original 
authorities  to  your  honors.  On  pages  33  and  34  of  my  brief  the  cases 
are  presented.  In  the  constitution  of  Maryland,  as  it  was  iu  1865, 
was  the  following  provision  : 

If  any  person  has  given  any  aid,  comfort,  countenance,  or  support  to  those  en 
gaged  in  armed  hostility  to  the  United  Slates,  or  has,  by  any  open  deed  or  word, 
declared  his  adhesion  to  the  cause  of  the  eueiniesof  the  United  States,  or  his  desire 
for  the  triumph  of  said  enemies  of  the  United  States,  he  is  disqualified  from  hold 
ing  any  office  of  honor,  profit,  or  trust  under  the  laws  of  this  State. 

Hart  B.  Holton,  who  had  not  a  majority  or  plurality  of  the  votes 
cast  for  senator  of  Howai'd  County  in  1865,  contested  the  seat  of  Lit 
tleton  Maclin,  who  had  the  majority  of  the  legal  votes  of  the  voters 
of  Howard  County,  and  on  the  principles  enunciated  by  Chief-Justice 
Chase  because  of  the  disloyalty  of  Littleton  Maclin,  Hart  B.  Holton 
obtained  the  seat  and  sat  as  a  senator  from  that  county.  In  1886,  be 
fore  the  house  of  delegates,  acting  judicially,  George  E.  Gambrill  con 
tested  the  office  of  Sprigg  Harwood,  as  clerk  of  the  circuit  court  of 
Anne  Arundel  County,  on  the  ground  of  constitutional  ineligibility, 
caused  by  an  increase  in  the  profits  of  this  clerkship,  while  Harwood 
was  a  senator  from  Anne  Arundel  County  in  1865.  The  committee 
said  that  Harwood  was  ineligible,  that  it  "  must  be  presumed  to  have 
been  known  by  every  voter,"  that  in  a  case  like  this  it  would  be  highly 
inexpedient  to  submit  this  matter  to  another  election,  and  on  their 
vote  the  incumbent  of  the  office  was  ousted  and  the  contestant  in 
ducted  into  the  office  of  clerk  of  Anne  Aruudel  Couutyi 

So  in  the  States  of  Missouri  and  Mississippi,  by  constitutional 
amendments,  introduced  and  adopted  for  the  purpose  of  securing  a 
reconstruction  of  those  States  iu  accordance  with  the  loyal  sentiment 
which  demanded  the  maintenance  of  the  Federal  Union  at  all  haz 
ards,  it  was  provided  iu  both  of  them  that  disloyalty  should  cause 
such  disqualification  that  votes  given  for  disloyal  persons  iu  Missis 
sippi  and  Missouri  should  not  be  cast  up  or  counted  as  ballots.  This 
principle,  springing  from  our  revolutionary  fathers  and  helping  to 
work  the  great  work  of  reconstruction,  helping  to  secure  the  main 
tenance  of  the  Federal  Union  and  the  principles  of  loyalty  to  the 
Federal  Union,  has  so  soon  as  this  become  so  odious  to  those  who 
maintained  and  espoused  it  so  recently  that  by  its  rejection  is  to  be 
elected  a  President  of  the  United  States.  What  is  there  to  the  con 
trary  ?  Six,  or  eight,  or  ten  obiter  dicta,  and  that  is  the  whole  of  it. 
and  not  one  of  them  in  conflict  with  the  principle  for  which  we  con 
tend.  Why,  your  honors,  the  presumption  is  omnia  ~bene  et  rite  esse 
prcvstimnnfur  donee probetur  in  contranum,  sustains  the  action  of  the  gov 
ernor  of  Oregon  until  there  shall  be  produced  in  evidence  something 
to  show  that  the  governor  of  Oregon  was  not  justified  in  the  course 
which  he  took.  We  are  justified,  then,  in  presuming — we  need  not  the 
evidence  which  we  offer — that  the  fact  of  disqualification  existed, 


ELECTORAL   COMMISSION. 


J59 


and  was  so  notorious  as  to  work  the  law  of  disqualification.  There 
fore  we  are  within  the  rule  of  Furtnan  vs.  Cluto,  in  50  New  York  ; 
therefore  we  are  within  the  rule  which  has  been  adopted  in  the  case 
in  56  Pennsylvania  State  Reports  ;  so  that  we  are  within  the  rule 
which  is  adopted  in  most  cf  the  other  States. 

Mr.  Commissioner  EDMUNDS.  Did  not  the  court  in  50  New  York 
hold  also  that  every  voter  must  know  what  the  law  was? 

Mr.  HOADLY.  Precisely  so  ;  and  it  would  be  a  lifting  commen 
tary  upon  the  serious  character  of  the  suggestions  which  have  been 
made  in  disparagement  of  the  legal  course  taken  by  the  governor  of 
the  State  of  Oregon  if  it  should  be  held  that  his  course  was  improper 
in  consequence  of  the  fact  that  the  15,000  people  who  voted  for  John 
W.  Watts  are  presumably  ignorant  of  the  Constitution  of  the  United 
States.  Of  a  lurking  statute  hidden  in  the  corners  of  a  statute-book, 
like  the  statute  that  governed  the  disqualification  of  the  sheriff  of 
Scheuectady  County,  it  may  well  be  that  the  voters  might  be  igno 
rant,  but  of  a  disqualification  inherent  in  a  constitutional  provision 
which  enables  the  State  to  appoint  electors  no  man  ought  to  say  that 
he  is  ignorant.  No  man  can  be  heard  in  any  court  of  law  to  say,  "  I 
submit  that  he  is  ignorant." 

Three  times  Indiana  has  pronounced  the  decision  which  I  have 
suggested.  It  has  been  espoused  by  Judge  Gushing  in  his  book  ;  it 
is  espoused  by  Grant  on  Corporations  ;  it  is  the  law  of  the  English 
cases  that  a  man  might  as  well  vote  for  the  man  in  the  moon,  or,  as 
Governor  Grover  in  his  decision  says,  for  Mount  Hood,  as  to  vote  for 
a  disqualified  candidate  knowingly  ;  and  what  is  there  to  the  con 
trary  ?  As  I  said,  the  Pennsylvania  case  concedes  that  a  vote  given 
with  knowledge  for  an  ineligible  candidate  cannot  be  counted.  In 
the  cases  in  California,  in  the  first  one,  Melony  vs.  Whitman,  the 
question  did  not  require  or  receive  decision,  for  the  majority  of  the 
court  found  that  the  officer  was  not  ineligible.  In  Sauiiders  vs. 
Haynes,  the  other  case,  it  is  assumed  that  a  majority  of  those  voting 
by  mistake  of  law  or  fact  happened  to  cast  their  vote.  The  case  in 
Wisconsin,  which  has  been  considered  the  leading  case  on  the  other 
side,  is  as  pure  a  piece  of  obiter  dictum  as  ever  was  pronounced  in  a 
court  in  this  country.  After  stating  that  the  officer  was  not  ineligi 
ble  they  go  on  to  say  : 

Such  being  the  opinion  of  the  court,  it  is  unnecessary  to  pass  on  tho  second 
ipti-si  ion  whether,  in  the  event  of  tho  person  receiving  the  highest  number  of  votes 
being  ineligible,  the  person  having  tho  nest  highest  number  is  elected. 

Then  I  will  not  say  by  'flic  same  force  with  which  I  address  the  pu 
pils  in  my  law  school,  but  by  the  same  judicial  authority  that  I  have 
the  right  to  express  when  I  address  students  in  a  law  school,  they  go 
on,  tho  court  having  decided  it  is  not  their  duty  to  say  anything 
about  it,  to  expound  the  law,  in  order  that  on  future  occasions  their 
successors  may  have  the  benefit  of  it,  and  in  14  Wisconsin  their 
successors  get  the  benefit  of  it,  and  adopt  it  without  giving  any 
reasons.  Judge  Luinpkin,  in  Georgia,  followed  the  same  wise  ex 
ample,  deciding  that  no  such  restriction  as  to  electing  a  clerk  and 
treasurer  of  their  town  "was  imposed  on  the  voters  of  the  young  but 
rapidly  growing  town  of  Oglethorpe  in  their  selection  of  a  suitable 
person  to  fill  the  office  of  clerk  and  treasurer."  Having  decided  that 
there  was  no  such  ineligibility,  he  proceeded  to  lay  down  the  law  of 
the  court  in  these  words  : 

"Under  no  circumstances  could  wo  permit  the  informant  to  be  installed  into  these 
appointments. 

In  Missouri  the  first  case  in  4G  Missouri  is  in  accordance  with  the 
views  which  we  maintain. 

As  regards  tho  votes  cast  for  the  defendant,  they  were  nugatory.    It  was  as  though 
had  been  cast  at  the  election. 


As  regards  tho  votes  cast  for  the  defendant 
no  such  votes  had  been  cast  at  the  election. 


And  the  case  of  The  State  vs.  Vail  does  not  withdraw  this  limitation, 
but  simply  confines  it  to  cases  of  latent  disqualification,  saying  : 

It  is  unnecessary  to  determine  whether  it  would  be  the  rule  in  any  case  of  dis 
qualifications  whether  patent  or  latent. 

The  case  in  Tennessee  decides  that  the  votes  are  illegal  and  void, 
which  is  a  case  so  far  as  it  goes  in  our  favor.  The  case  in  Michigan 
is  disposed  of  by  an  admission  in  pleading  ;  they  say  the  party  ad 
mitted  his  case  away  in  pleading.  Tho  case  in  2i  Louisiana  Annual 
Reports  decides  from  modesty.  I  suppose,  if  there  be  such  an  article 
in  that  State,  that  this  is  an  opinion  that  it  was  unnecessary  to  ex 
press  any  opinion  as  to  whether  the  votes  cast  for  a  person  notori 
ously  known  to  be  ineligible  should  be  rejected  or  not,  as  no  such  al 
legations  were  made  in  the  petition.  The  cases  in  18  and  20  Louisi 
ana  State  Reports  are  to  the  same  effect.  "  Whatever  might  have 
been  his  rights  had  he  contested  the  election  of  the  defendant  in  ac 
cordance  with  law,  we  are  not  called  upon  to  say."  The  case  in  Mis 
sissippi  is  the  nearest  to  a  case  in  opposition  to  the  principle  for  which 
I  contend  to  any  case  in  the  United  States.  There  it  is  said  : 

If  the  majority  making  choice  of  a  candidate  under  some  personal  disability  dis 
qualifying  him  from  taking  and  enjoying  tho  office,  the  utmost  that  can  be  said  of 
it  is  that  there  has  been  no  election. 

"  Personal  disability,  "  not  the  disability  of  the  State  to  appoint,  but 
personal  disability  applicable  to  the  candidate. 

In  Rhode  Island,  as  is  shown  by  a  letter  from  William  Beach  Law 
rence,  of  which  I  have  reprinted  a  large  portion  in  my  brief,  the 
opinions  are  purely  obiter  dicta  on  this  proposition,  there*  being  a  tie 
between  the  three  highest  democratic  candidates  for  elector,  and 
therefore  the  result  which  was  reached  by  the  governor,  that  there 
was  no  vacancy,  a  failure  to  elect  being  the  necessary  result,  and  not 


the  result  produced  by  the  reasons  which  were  given  by  the  supreme 
court. 

These  are  all  the  cases  in  tho  United  States.  I  believe  I  have  re 
ferred  in  my  brief  to  every  case  within  the  borders  of  this  land  ex 
cept  one  case  in  Cox's  Reports,  page  318,  the  State  vs.  Anderson, 
which  went  off  on  the  proposition  that  in  certiorari  there  was  a  dis 
cretion,  but  the  court  would  not  exercise  that  discretion  to  displace 
a  man  who  was  disqualified  because  it  would  leave  the  office  vacant, 
and  did  not  allude  at  all  to  the  question  whether  there  was  any  an 
tagonist  or  whether  his  antagonist  received  any  votes. 

Now,  testing  by  principle,  I  say  Cronin  was  elected.  Testing  by 
method,  would  a  quo  warranto  have  run  in  favor  of  Watts  ?  Would 
not  the  disqualification  have  killed  his  title  ?  Could  he  by  quo  ivar- 
ranto  or  certiorari  or  contest  have  obtained  the  seat?  Cronin  held  it 
de  facto  ;  Watts  was  a  postmaster  disqualified.  Test  it  now  by  the 
rules  of  method  under  laws  similar  to  that  which  we  have  in' Ohio 
and  many  of  the  States  in  which  &  quo  warranto  may  be  supported  at 
the  instance  of  the  competing  candidate  and  pursued  not  merely  to 
the  ousting  of  the  incumbent  but  to  the  induction  of  the  man  who 
ought  to  have  been  successful,  and  on  what  principle  of  law  could 
John  W.  Watts,  who  did  not  hold  this  commission,  have  got  from 
any  court  of  justice  in  this  land,  tho  title  to  which  he  now  lays  claim  ? 
Cronin  held  the  title  ;  Cronin  cast  the  vote  ;  Watts  was  not  de  facto, 
and  it  is  a  question  whether  ho  was  dcjure.  Ask  yourselves,  learned 
judges,  whether  any  one  of  you  sitting  in  qu»  warranto  would  have 
awarded,  as  against  the  officer  de  facto  possession  of  the  office  to  a 
man  who  the  Constitution  of  the  country  said  should  not  hold  it  ? 
On  principle  the  mandate  to  elect  is  fulfilled  by  the  election  of  Cronin. 
If  Watts  be  called  elected,  the  mandate  to  elect  is  disobeyed.  If 
Watts  be  called  elected,  tho  mandate  not  to  elect  a  disqualified  per 
son  is  disobeyed.  Tested  by  method  and  by  the  rules  which  apply  in 
courts  of  justice,  tell  me  how  any  lawyer  can  say  that  a  disqualified 
candidate  can  seize  an  office  by  any  process  known  to  the  laws  of  our 
country  out  of  the  hands  of  one  who  holds  it  de  facto,  even  although 
that  one  be  not  elected  ?  He  may  have  a  judgment  that  the  office  is 
vacant ;  that  is  all  he  can  have,  and  that  is  the  end  of  the  whole 
thing  so  far  as  he  is  concerned. 

Mr.  President  and  gentleman  of  the  Commission,  into  your  hands, 
assisted  by  the  enlightened  labors  of  those  who  are  to  follow  me  in 
argument,  I  commit  this  cause.  No  cause  was  ever  submitted  more 
momentous  in  its  issues  or  in  its  consequences.  It  involves  the  ques 
tion  whether  government  of  the  people,  by  the  people,  for  the  people, 
shall  be  suspended  in  these  United  States  for  the  next  four  years. 

At  the  election  in  November  last  Samuel  J.  Tilden  and  Thomas  A. 
Hendricks  received  for  President  and  Vice-President  of  the  United 
Stales  a  vast  majority  of  the  total  popular  vote,  a  majority  of  the 
legal  popular  vote  in  the  States  of  Louisiana  and  Florida,  and  one  cer- 
titicated  electoral  vote  in  the  State  of  Oregon.  Your  sense  of  duty  has 
prevented  your  listening  to  the  testimony  which  would  have  estab 
lished  their  title  to  the  electoral  votes  of  Louisiana  and  Florida. 
This  was  because  you  possessed  no  judicial  power  whatever.  Had 
you  been  endowed  with  any  portion  of  the  judicial  power  of  the 
United  States  there  is  no  doubt  that  before  this  time  its  exercise 
would  have  relieved  the  people  of  the  United  States  from  the  serious 
apprehension,  of  great  danger,  of  danger  that  for  four  weary  years 
the  choice  of  the  American  people  shall  be  frustrated  and  a  usurper 
sit  in  the  seat  of  Washington  and  Jefferson,  of  Jackson  and  of  Lin 
coln. 

If  yon  adhere  to  the  principle  which  has  thus  far  guided  your 
action,  this  danger  will  be  averted.  Without  the  exercise  of  judicial 
power,  you  cannot  deprive  Tilden  and  Hendricks  of  their  Oregon 
vote,  or  award  it  to  Hayes  and  Wheeler. 

You  have  been  likened  unto  judges  in  Israel,  and  warned  not  to 
make  your  proceedings  so  intolerably  inconvenient  that  the  people 
should  desire  a  king.  The  people  whose  cause  I  represent  will  never 
wish  for  a  king;  but  I  may  remind  the  counsel  that  it  was  not  be 
cause  the  action  of  their  judges  was  inconvenient  that  the  people  of 
Israel  desired  a  king,  but  because  their  judges  "perverted  judgment." 

Conscript  fathers  of  the  American  Republic,  the  flower  and  crown 
of  the  enlightened  jurisprudence  of  pagan  Rome  were  the  two 
maxims,  "  Ubi  jus,  ibi  remedium,"  ''  flunm  cniqne  tribuitp."  May  it  be 
the  happy  fortune  of  our  nation  and  of  yourselves,  as  the  expounders 
of  its  constitutional  powers,  not  to  lessen  the  force  or  diminish  the 
universality  of  their  application. 

So  shall  Time,  the  corroder  and  consumer  of  all  finite  things,  pass 
your  work  by  untouched,  and  after  generations,  as  they  may  meet 
with  questions  of  disputed  succession,  shall  point  to  and  follow  it, 
saying,  "Behold  the  great  example  of  our  fathers.  In  their  ways 
will  we  walk,  for  they  are  the  ways  of  righteous  judgment  and  of 
peace;"  and  the  arms  of  them  who  serve  liberty  in  all  the  lands  shall 
be  strengthened,  for  they  shall  know  that  in  monarchies  questions 
of  succession  are  resolved  by  the  sword,  in  republics  by  justice. 

So  shall  Art,  which  keeps  "in  eternal  remembrance  the  realities  of 
things,  still  delineate  Justice  with  bandaged  eyes  and  open  ears,  and 
history  shall  not  record  that  Justice  here,  at  the  expense  of  her  hear 
ing,  regained  her  sight. 

Mr.  Commissioner  ABBOTT.  I  move  that  the  Commission  adjourn 
to  meet  at  ten  o'clock  to-morrow  morning  in  the  Supreme  Court  room. 

The  motion  was  agreed  to ;  and  (at  niue  o'clock  and  fifty -five  min 
utes  p.  m.)  the  Commission  adjourned. 


160 


ELECTORAL  COMMISSION. 


THURSDAY,  February  22,  1877. 

The  Commission  met  at  ten  o'clock  a.  m.,  in  the  Supreme  Court 
room,  pursuant  to  adjournment,  all  the  members  being  present. 

The  counsel  representing  the  objections  to  the  various  Oregon  cer 
tificates  were  present. 

The  Journal  of  yesterday  was  read  and  approved. 

The  PRESIDENT.  Counsel  in  opposition  to  certificate  No.  2  will 
now  be  heard. 

Mr.  MATTHEWS.  Mr.  President  and  gentlemen  of  the  Commis 
sion,  life  is  a  series  of  surprises,  and  the  succession  of  the  arguments 
which  has  taken  place  before  this  Commission  is  no  exception  to,  but 
rather  an  illustration  of,  that  truth.  When  the  case  of  Florida  was 
opened  by  the  learned  counsel  who  is  to  conclude  the  argument  in 
this,  [Mr.  Merrick,]  he  assumed  and  attacked  as  our  position  that  the 
certificate  of  the  governor  of  a  State  accompanying  the  list  of  elect 
ors  was  conclusive  and  could  not  be  impeached,  could  not  be  set  aside, 
could  not  be  contradicted.  And  among  the  first  words  which  I  had 
the  honor  in  reply  to  say  in  the  presence  of  this  honorable  Commis 
sion,  I  was  compelled  to  remove  that  misapprehension  on  the  part  of 
the  adverse  counsel,  and  to  say  that  we  held  to  no  such  doctrine ;  and 
in  the  course  of  argument  I  stated  our  proposition  in  this  way  : 


not;  not  what  are  or  may  bo  tho  ultimate  and  final  facts  and  right  of  the  case. 
The  facts  to  bo  certified  by  tho  governor  in  this  or  in  any  case  are  the  public  facts 
•which  by  law  remain  and 'constitute  a  part  of  the  record  in  the  public  offices  and 
archives  of  the  State,  and  of  which,  being  governor  for  the  time  being,  he  has 
official  knowledge. 

We  undertook  to  draw  aline  of  demarkation  in  that  instance,  first, 
between  the  constitutional  authority  of  the  State  in  the  making  of 
the  appointment,  in  the  doing  of  all  those  things  which  constitute 
and  verify  the  appointment,  which  complete  it,  which  constitute  a 
factum  to  be  enrolled  in  the  public  offices  of  the  State  in  perpetual 
memorial  of  the  fact;  and,  on  the  other  hand,  the  Federal  authority 
which  took  the  matter  up  from  the  point  where  the  State  left  it,  after 
it  had  been  transferred  by  the  State  into  the  custody  of  Federal 
authority. 

We  undertook,  also,  to  draw  a  line  of  distinction  in  another  place, 
and  that  was  between  things  and  proofs,  between  the  thing  to  be 
certified  and  the  certificate  which  certified  it ;  and  we  claimed  then, 
as  we  have  consistently  done  throughout,  that  the  certificate  of  a 
thing  was  matter  of  form ;  the  thing  certified  was  the  matter  of  sub 
stance  ;  and  that  in  every  case  where  it  could  be  alleged  that  the  cer 
tificate  was  false  in  that  it  did  not  conform  to  the  thing  to  be  certified, 
you  might  correct  tho  certificate  by  showing  the  fact  to  be  certified. 

The  statement  of  these  propositions  was  made  in  the  opening  of  the 
argument  in  the  Florida  case  on  our  side.  It  was  enlarged  and  am 
plified  and  demonstrated,  and  applied  by  the  learning  and  the  elo 
quence  of  my  colleagues  who  continued  the  further  argument  in  that 
and  the  succeeding  case  of  Louisiana ;  and  under  the  guidance  of 
their  skillful  and  experienced  hands  in  applying  the  sonud  constitu 
tional  principle  out  of  which  those  manifest  distinctions  sprung,  we 
were  guided  by  a  pilot  as  wise  and  successful  as  Paliimrus  himself 
between  Scylla  and  Charybdis.  It  was  therefore,  Mr.  President,  some 
what  of  a  surprise  to  find  that  the  position  which  we  had  taken  so 
much  pains  to  make  clear  and  to  prove,  now  not  only  has  been  adopted 
by  the  gentlemen  on  the  other  side,  but  that  going  beyond  that  they 
have  adopted  the  dogma  which  originally  they  improperly  ascribed 
to  us;  and  we  hear  for  the  first  time  in  this  continuous,  although  in 
terrupted  debate,  the  cry  from  our  adversaries  of  the  sanctity  and  im 
penetrability  of  the  formal  certificate  of  the  governor.  It  is  now 
claimed  by  the  learned  gentleman  who  spoke  with  so  much  ability  in 
the  Senate  Chamber  last  night  [Mr.  Hoadly,]  that  the  idea  on  which 
he  founded  tho  whole  structure  of  his  argument  has  passed  into  adju 
dication  by  the  decision  of  this  tribunal  in  the  Louisiana  case.  The 
language  of  this  tribunal  upon  that  point  is  this : 

And  the  Commission  has  by  a  majority  of  votes  decided  and  does  hereby  decide 
that  it  is  not  competent  under  the  Constitution  and  th'»  law  as  it  existed  at  tho  date 
of  the  passage  of  said  act  to  go  into  evidence  aliundo  the  papers  opened  by  the 
President  of  tho  Senate  in  the  presence  of  tho  two  Houses  to  prove  that  other  per 
sons  than  those  regularly  certified  to  by  the  governor  of  the  State  of  Louisiana  on 
and  according  to  the  determination  and  declaration  of  their  appointment  by  the 
returning  officers  for  elections  in  tho  said  State  prior  to  the  time  required  for  tho 
performance  of  their  duties  had  been  appointed  electors,  or  by  counter-proof  to 
show  that  they  had  not. 

So  that  the  very  ground  on  which  we  stood  at  the  beginning  is  tho 
ground  which  has  been  hallowed  by  this  tribunal  and  is  the  ground 
on  which  we  stand  to-day  ;  and  that  is  that  it  is  the  certificate  of  the 
governor  which  is  based  on  and  according  to  the  determination  and 
declaration  of  the  appointment  of  electors  by  the  returning  officers 
for  elections  in  the  said  State  prior  to  the  time  required  for  the  per 
formance  of  their  duties,  which  is  under  the  Constitution  and  laws  of 
the  United  States  tho  conclusive  evidence  of  the  persons  who  are 
entitled  to  cast  the  electoral  vote  of  the  State. 

Mr.  President,  that  is  not  the  only  surprise.  In  the  case  of  Florida 
the  attempt  was  made  by  the  show  and  offer  of  proof  to  go  behind 
the  final  action  of  tho  State  in  the  appointment  of  electors  by  show 
ing  that  the  process  had  been  erroneous,  illegal,  without  jurisdiction, 
involving  transgressions  of  law,  and  tainted  by  fraud.  The  same  offer, 
though  greatly  exaggerated  and  enlarged,  was  made  in  the  case  of 


Louisiana ;  and  it  seemed  as  if  the  offers  proposed  by  the  gentlemen 
on  tho  other  side  of  their  proof  grew  the  stronger  and  larger  just  in 
proportion  to  the  certainty  which  they  had  attained  that  they  would 
not  be  put  to  the  test  of  an  attempt  to  make  it  good ;  and  we  were 
treated  at  the  same  time  with  exhibitions  of  virtuous  indignation 
which  for  one  at  least  I  was  not  expecting  or  prepared  to  witness  in 
that  quarter,  of  the  enormity  of  sanctifying  wrong  and  fraud ;  and 
the  tribunal  and  the  counsel  and  all  who  were  engaged  in  the  trans 
action  were  involved  in  one  universal  sentence  of  condemnation ;  as 
if,  by  establishing  some  legal  principles  in  the  course  of  a  transac 
tion  which  at  least  has  the  form  of  a  juridical  inquiry  and  professes 
to  be  governed  by  constitutional  and  legal  principles,  we  were  con 
fessing  the  wrongs  which  we  alleged  it  was  incompetent  for  this  tri 
bunal  to  investigate. 

I  was  reminded,  Mr.  President,  by  that  of  some  remarks  which 
bear  the  authority  of  the  Supreme  Court  of  the  United  States,  and 
were  delivered  by  Mr.  Justice  Field,  in  the  case  of  Bradley  vs.  Fisher, 
in  13  Wallace,  348 ;  where  it  was  decided  by  tho  Supreme  Court 
of  the  United  States  that  a  civil  action  for  damages  would  not  lie 
against  the  judge  of  a  superior  court  for  anything  done  by  him  in 
his  official  capacity,  although  it  was  alleged  in  the  petition  to  have 
been  done  corruptly,  wantonly,  and  maliciously,  to  tho  injury  of  the 
plaintiff;  and  that  learned  judge,  who  delivered  the  opinion  of  the 
court,  made  these  general  remarks,  which  apply  in  the  present  con 
troversy  wherein  (quoting  from  an  old  authority  in  Coke  as  to  tho 
ground" of  that  public  policy,  that  it  would  tend  to  the  scandal  and 
subversion  of  all  justice,  and  those  who  are  the  most  sincere  would 
not  be  free  from  continual  calumniation)  he  says: 

The  truth  of  this  latter  observation  is  manifest  to  all  persons  having  much  ex 
perience  with  judicial  proceedings  in  tho  superior  courts.  Controversies  involving 
not  merely  great  pecuniary  interests,  but  the  liberty  and  character  of  the  parties, 
and  consequently  exciting  tho  deepest  feelings,  are  being  constantly  determined  in 
those  courts  in  which  there  is  great  conflict  in  the  evidence  and  great  doubt  as  to 
the  law  which  should  govern  their  decision.  It  is  this  class  of  cases  which  impose 
upon  tho  judge  the  severest  labor,  and  often  create  in  his  mind  a  painful  sense  of 
responsibility.  Yet  it  is  precisely  in  this  class  of  cases  that  the  losing  patty  feels 
most  keenly  the  decision  against  him,  and  most  readily  accepts  anything  but  tho 
soundness  of  the  decision  in  explanation  of  the  action  of  the  judge.  Just  in  pro 
portion  to  tho  strength  of  his  convictions  of  tho  correctness  of  his  own  view  of  the 
case  is  he  apt  to  complain  of  the  j  udgruent  against  him,  and  from  complaints  of  tho 
judgment  to  pass  to  the  ascription  of  improper  motives  to  the  judge.  When  the 
controversy  involves  questions  affecting  large  amounts  of  property  or  relates  to  a 
matter  of  general  public  concern,  or  touches  the  interests  of  numerous  parties,  the 
disappointment  occasioned  by  an  adverse  decision  often  finds  vent  in  imputations 
of  this  character,  and  from  the  imperfection  of  human  nature,  this  is  hardly  a  sub 
ject  of  wonder.  If  civil  actions  could  be  maintained  in  such  cases  against  tho 
judge,  because  the  losing  party  should  see  fit  to  allege  in  his  complaint  that  the  acts 
of  the  judge  were  done  with  partiality  or  maliciously  or  corruptly,  the  protection 
essential  to  judicial  independence  would  be  entirely  swept  away.  Pew  persous 
sufficiently  irritated  to  institute  an  action  against  a  judge  for  his  judicial  acts 
would  hesitate  to  ascribe  any  character  to  the  acts  which  would  be  essential  to 
the  maintenance  of  the  action. 

In  those  cases  the  offer  of  proof,  even  in  the  form  in  which  it  Avas 
most  offensive,  went  only  to  a  certain  point  to  prove,  it  was  alleged, 
fraud  in  that  return  and  result  which  had  been  declared  by  the  re 
turning  board  of  the  State,  in  order  to  penetrate  below  that,  to  the 
primary  returns.  But  when,  on  the  other  hand,  it  was  urged  that 
when  they  were  reached  we  should  have  occasion  to  retort  with 
charges  of  fraud  and  oppression,  and  intimidation  and  cruelty,  and 
arts  and  stratagems,  the  effect  of  which  had  been  to  falsify  those  pri 
mary  election  returns,  there  we  were  met  with  the  argumentum  ab  in- 
convcnienti,  and  no  less  a  personage  and  lawyer  than  the  distinguished 
advocate  at  that  time  in  the  case,  from  New  York,  Mr.  O'Conor,  in  an 
swer  to  the  objection  that  when  the  inquiry  took  that  range — when  it 
came  to  involve  questions  of  fraud  on  both  sides — this  tribunal,  by 
virtue  either  of  some  judicial  or  parliamentary  discretion,  could  stop 
the  inquiry  at  the  most  convenient  point ;  could  stop  the  inquiry,  I 
suppose,  when  they  had  heard  one  side  and  refuse  to  hear  the  other. 

No,  Mr.  President,  I  am  not  willing  to  let  this  last  opportunity  in 
all  probability  which  I  shall  have  to  address  this  tribunal  pass 
without  entering  my  solemn  protest  against  the  pretension  to  mo 
rality  which  by  ascription  has  been  made  the  foundation  and  sub 
stratum  of  this  complaint.  It  is  a  morality  which  does  not  go  very 
deep.  It  is,  to  say  the  most  of  it,  not  more  than  skin  deep ;  for  when 
the  proposition  is  made  to  probe  tho  wound  to  the  bone,  then  it  is 
said  that  you  cannot  go  behind  the  record  of  the  votes  actually  cast. 
It  is  a  morality  based  upon  the  sanctity  of  votes  actually  cast  with 
out  reference  to  who  cast  them,  how  they  were  cast,  whether  the 
same  man  cast  more  than  one,  whether  or  not  thousands  upon  thou 
sands  of  honest  and  legitimate  votes  were  cot  kept  out  and  prevented 
from  being  actually  cast  by  the  frauds  and  violence  of  those  who 
want  their  votes  to  be  counted  because  they  are  cast  and  exclude 
those  who  wanted  to  cast  them  and  were  deprived  of  the  opportunity. 

Now,  one  of  the  things  which  is  not  a  surprise  is  that  in  spite  of 
the  changed  circumstances  of  the  ca,se  we  have  an  exhibition  in  this 
of  precisely  the  same  standard  and  gauge  of  morals.  We  have  Cronin 
elevated  upon  a  pedestal  for  public  adoration  by  his  inventor  as  the  new 
statue  of  popular  rights,  freedom  of  elections,  purity  of  the  ballot- 
box,  honest  ballots,  fair  voting,  and  we  are  all  called  to  fall  down 
and  worship  him  ! 

We  have  no  offers  in  this  case  to  prove  any  bribery,  to  show  that 
ho  was  paid  $3,000  under  pretense  of  his  expenses  to  Washington 
City  as  messenger,  made  by  contract  notoriously  before  he  flocked 
altogether  by  himself  to  make  a  college  of  himself.  We  have  no  offer 


ELECTORAL  COMMISSION. 


161 


to  prove  the  various  tricks,  and  devices,  and  stratagems,  and  the  cor 
respondence  locked  in  what  were  supposed  to  be  undecipherable  hie 
roglyphics,  to  show  that,  so  far  from  this  being  an  attempt  on  the  part 
of  any  of  the  parties  implicated  in  it  as  actors  or  advisers  to  maintain 
constitutional  doctrines  and  constitutional  rights,  it  was  a  deep-laid 
and  deliberate  scheme  to  defraud  and  rob  the  people  of  Oregon  of 
their  just  influence  in  the  electoral  college. 

I  wonder  that  my  friend  who  spoke  last  night,  when  he  was  under 
taking  to  cite  to  this  tribunal  the  definition  of  what  constituted  a 
vacancy  from  Worcester  and  from  Webster,  did  not  disclose  from  the 
little  pocket  dictionary  which  was  made  use  of  as  the  means  of 
transmitting  unintelligible  hypocrisy  between  Gramercy  Park  and 
Salem,  and  let  us  see  by  the  application  of  that  cipher  what  it  was  he 
wished  to  have  understood. 

Mr.  President,  the  argument  made  last  evening  in  support  of  what 
for  convenience  sake  may  he  called  the  Croniu  certificate  by  my 
learned  friend  Judge  Hoadly  is  founded,  in  my  judgment,  upon  two 
false  assumptions,  the  proper  uaderstanding  and  recognition  of  which 
at  once  put  an  end  to  the  whole  mountain  both  of  authority  and  rea 
soning  by  which  he  undertook  to  support  his  conclusions.  The  first 
of  these  false  assumptions  is  this :  that  the  Cronin  certificate,  the  cer 
tificate  of  the  governor  of  Oregon  appended  to  the  list  of  electors  of 
which  Croiiin  is  one,  was  and  is  the  authorized  declaration  of  the  re 
sult  of  the  election  by  the  proper  legal  canvassing  officer  of  the  State 
of  Oregon.  He  could  not  claim  less  than  that,  for  otherwise  ho  was 
unable  to  bring  his  argument  within  the  scope  of  the  decision  of  this 
tribunal  in  the  Louisiana  case.  He  was  therefore  compelled  to  as 
sume  and  argue  that  by  the  statutes  of  Oregon  the  governor  of  that 
State  was  authorized  to  make  such  a  certificate  as  he  has  made,  and 
that  in  law  that  document  in  its  form  and  substance  is  the  canvass 
of  the  election  for  electors,  behind  which  this  tribunal  has  decided 
that  it  constitutionally  cannot  go. 

The  next  false  assumption  on  which  his  argument  is  based  is  that 
this  certificate  is  in  the  nature  of  a  commission  lawfully  issued  by  the 
governor  to  an  officer  and  which  it  is  necessary  that  he  should  have 
in  order  to  be  a  warrant  in  law  for  the  execution  of  the  duties  of  his 
office.  It  is  in  respect  to  this  second  proposition  that  a  large  number 
of  authorities  was  cited  to  show  that,  in  cases  where  a  governor  has, 
bylaw  or  under  the  constitution  of  his  State,  an  executive  discretion 
in  respect  to  the  appointment  and  commissioning  of  officers,  that  dis 
cretion  may  he  exercised  by  him  in  granting  or  withholding  that  com 
mission  for  sufficient  legal  reasons,  in  which  he  cannot  be  controlled 
by  the  action  of  the  judicial  tribunal  of  the  country  by  mandamus  or 
quo  warrantor  and  that  therefore,  in  such  cases,  he  is  made  the  judge 
of  the  facts  in  respect  to  eligibility  or  otherwise,  on  which  he  may 
proceed  in  the  execution  and  exercise  of  his  official  discretion,  the 
whole  of  which  immediately  and  peremptorily  falls  to  the  ground 
when  it  is  once  known  and  ascertained  and  declared,  as  the  law  is, 
that  this  certificate,  even  if  it  had  been  made  in  conformity  with 
some  law,  which  it  is  not,  either  of  Congress  or  of  the  State  of  Ore 
gon,  was  not  intended  and  does  not  have  the  effect  of  constituting 
the  warrant  of  these  officers  for  the  exercise  of  their  official  duties. 

Now  let  me  examine  the  first  of  these  two  propositions  in  the  light 
of  the  statutes  and  constitution  of  the  State  of  Oregon,  in  order  to  as 
certain  what  mode  has  been  adopted  by  the  Legislature  of  the  State 
of  Oregon  for  the  appointment  of  electors  for  that  State.  By  section 
58  (page  141  of  the  printed  pamphlet)  it  is  provided  that : 

On  the  Tuesday  next  after  the  first  Monday  in  November,  1864,  and  every  four 
years  thereafter,  there  shall  bo  elected  by  the  qualified  electors  of  this  State  as 
many  electors  of  President  and  Vice-President  as  this  State  may  be  entitled  to 
elect  of  Senators  and  Representatives  in  Congress. 

They  are  to  be  elected  by  the  qualified  electors  of  the  State,  by  a 
popular  election.  Now  by  the  sixtieth  section  it  is  provided  that — 

The  votes  for  the  electors  shall  be  given,  received,  returned,  and  canvassed  as 
the  same  are  given,  returned,  and  canvassed  for  members  of  Congress. 

There  that  proposition  ends.  Wo  are  to  ascertain  what  constitutes 
the  legal  canvass  for  electors  of  Oregon,  and  in  order  to  do  that  we 
are  referred  by  this  section  to  those  steps  which  by  law  are  pro 
vided  to  be  taken  in  the  canvass  for  the  election  of  members  of  Con 
gress.  Now  we  shall  ascertain  that  by  turning  to  the  thirty-seventh 
section,  on  page  138,  wherein  it  is  provided: 

The  county  clerk,  immediately  after  making  the  abstract  of  the  votes  given  in 
his  county,  shall  make  a  copy  of  each  of  said  abstracts,  and  transmit  it  by  mail  to 
the  secretary  of  state,  at  the  seat  of  government ;  and  it  shall  bo  the  duty  of  the 
secretary  of  state,  in  the  presence  of  the  governor,  to  proceed  within  thirty  days 
after  the  election,  and  sooner  if  the  returns  be  all  received,  to  canvass  the  votes 
given  for  secretary  and  treasurer  of  state,  State  printer,  justices  of  the  supreme 
court,  member  of  Congress,  and  district  attorneys. 

And  there  that  proceeding  ends  and  there  ends  the  declaration  of 
the  statute  in  reference  to  all  the  steps  which  are  included  in  the 
canvass  for  members  of  Congress.  When  a  canvass  takes  place,  how 
ever,  for  member  of  Congress,  after  the  canvass  is  concluded,  it  is 
then  provided  that — 

The  governor  shall  grant  a  certificate  of  election  to  the  person  having  the  high 
est  number  of  votes,  and  shall  also  issue  a  proclamation  declaring  the  election  of 
such  person. 

But  inasmuch  as  that  constitutes  no  part  of  the  canvass  for  mem 
bers  of  Congress,  it  is  not  any  part  of  the  canvass  for  electors  of  the 
State.  On  the  other  hand,  the  original  section  GO,  to  which  I  now  re 
cur,  provides,  instead  of  that : 

The  secretary  of  state  shall  prepare  two  lists  of  the  names  of  the  electors  elected, 
and  aflix  the  seal  of  the  State  to  the  same. 


Buf,  mark  you,  that  is  no  part  of  the  canvass  ;  it  is  a  certification 
merely  of  the  result  of  that  canvass.  The  canvass  ia  something  dis 
tinct  ;  the  canvass  is  the  determination,  the  declaration,  the  record  of 
the  facts  of  the  election  as  they  have  been  transmitted  by  the  clerks 
of  the  various  counties  to  the  secretary  of  state,  and  by  him  are  put 
into  that  form  which  shows  who  had  the  highest  number  of  votes, 
and  there  entered  of  record  in  his  office  as  a  part  of  the  public  ar 
chives  of  the  State  for  the  benefit  of  whom  it  may  concern  ;  and,  as 
was  remarked,  any  man  in  the  State,  any  citizen,  has  a  right  by  law 
to  go  to  the  secretary  of  state,  and,  upon  the  tender  of  the  payment 
of  the  lawful  fees,  demand  from  him  a  certificate  of  that  record  as 
of  any  other. 

Now,  then,  we  have  arrived  at  the  two  things  which  are  separate 
and  distinct :  the  substantial  thing,  which  consists  of  the  showing 
made  of  record  of  the  number  of  votes  cast  for  each  of  the  electors, 
showing  who  had  the  greatest  number  of  votes,  and  that  is  the  can 
vass  ;  and  it  is  not  essential,  it  is  no  necessary  part  of  that  canvass, 
it  is  not  made  so  by  any  law.  that  the  secretary  of  state  or  anybody 
else  should  by  any  formal  declaration  or  publication  make  manifest 
more  than  it  is  by  the  inspection  of  the  record  who  has  been  in  point 
of  fact  elected.  There  is  no  discretion  in  that  matter ;  there  is  no 
room  for  any  doubt ;  there  is  no  possi  ble  uncertainty.  The  law  and 
the  constitution  of  the  State  of  Oregon  both  unite  in  stamping  upon 
that  document  and  that  record  as  it  remains  in  the  office  of  the  sec 
retary  of  state  the  legal,  constitutional,  and  only  possible  result,  name 
ly,  that  the  man  appearing  from  that  record  to  have  the  highest  num 
ber  of  votes  shall  be  deemed  to  be  elected. 

Then  what  have  we  here  ?  On  pago  2,  certificate  No.  1,  we  have 
the  very  thing.  It  is  not  proof  of  the  thing;  it  is  an  exhibition  of 
the  thing ;  and  it  is  a  production  of  it  in  court.  We  have  made  pro- 
fert  of  the  identical,  substantial,  and  only  real  thing ;  and  that  is  the 
canvass  of  the  election.  The  secretary  of  state  of  Oregon,  who  is  the 
custo'dian  of  the  «reat  seal  of  the  State  by  virtue  of  his  office,  certifies: 

That  the  foregoing  tabulated  statement  is  the  result  of  the  vote  cast  for  pres 
idential  electors  at  a  general  election  held  in  and  for  the  State  of  Oregon  on  the  7th 
day  of  November,  A.  D.  1876,  as  opened  and  canvassed  in  the  presence  of  his  excel 
lency  L.  F.  Grover,  governor  of  the  said  State,  according  to  law,  on  the  4th  day  of 
December,  A.  D.  1876,  at  two  o'clock  p.  m.  of  that  day,  by  the  secretary  of  state. 

That  is  the  res  gesta; ;  that  is  the  appointment  by  the  State  in  the 
manner  prescribed  by  the  Legislature  thereof;  that  is  the  muniment 
of  title  ;  that  is  the  constitutional  and  legal  foundation  of  right.  That 
it  is  which  constitutes  the  investiture  by  the  State  upon  the  party 
of  his  official  title,  rank,  and  character.  All  else  is  mere  certifica 
tion  ;  all  else  is  mere  proof,  prima  facie  or  conclusive  as  the  law  makes 
it  in  express  terms,  and  not  otherwise ;  and  no  scrap  of  law,  no  iota 
of  a  statute,  no  word  has  been  quoted  to  give  effect  to  any  certifica 
tion  other  than  that  which  according  to  the  principles  of  the  com 
mon  law  belong  to  it.  It  is  prima  facie  evidence  ;  it  is  to  be  taken  as 
true  until  confronted  with  the  fact  it  is  shown  to  be  false,  just  as  the 
exemplification  of  a  recorded  judgment  is  to  be  taken  as  true  until  on 
allegation  of  diminution  or  error  or  mistake,  on  certiorari,  the  court 
may  order  up  the  original  and  compare  it  with  the  alleged  copy. 

That  this  certificate  provided  in  section  60  to  be  made  by  the  sec 
retary  of  state,  containing  lists  of  the  names  of  the  electors  elected, 
has  no  other  or  greater  effect  than  that  I  have  ascribed  to  it,  and  is 
not  in  the  nature  of  a  warrant  required  by  law  to  enable  the  parties 
named  therein  to  proceed  in  the  execution  of  their  office,  is  appar 
ent  from  the  language  of  the  statute  and  from  the  whole  purview 
and  meaning  of  the  constitution  and  the  laws. 

Now,  Mr.  President,  leaving  the  parties  to  stand  upon  that  docu 
ment  proven  in  that  way,  making  manifest  that  fact,  which  by  the 
constitution  and  laws  of  Oregon  constitutes  their  appointment,  is 
the  very  appointment  to  their  office  of  electors,  let  us  examine  for  a 
while  its  rival. 

The  certificate  of  the  governor,  No.  2,  is  a  document  which  is  intruded 
hero  in  argument  as  a  substitute  for  that  canvass,  under  pretense 
of  being  that  canvass.  This  certificate  is  a  certificate  of  the  governor. 
It  is  attested,  to  be  sure,  by  the  secretary  of  state,  but  only  as  a  witness. 
It  is  not  the  certificate  of  the  secretary  of  state ;  it  is  not  the  declara 
tion  of  the  canvassing  officer.  It  conforms  in  no  particular  with  any 
statutory  requirements  affecting  the  declaration  of  the  result  of  the 
election.  It,  to  be  sure,  purports  to  give  the  names  of  three  persons 
with  the  number  of  yotes  received  by  each  ;  but  it  does  not  state  that 
they  are  the  persons  that  had  the  highest  number  of  votes  cast  at  that 
election,  and  it  interpolates  a  conclusion  of  law — at  least  that  is  an 
admissible  inference  from  its  face — incorporating  the  judgment  of  the 
governor  upon  a  question  of  law,  when,  according  to  these  statutes,  if 
he  did  anything  at  all,  he  could  only  certify  to  the  fact.  And  as  to 
the  functions  of  canvassing  boards  upon  that  matter,  I  beg  to  call  the 
attention  of  the  tribunal  to  a  decision  in  the  case  of  Newcuni  vs.  Kirt- 
ley,  in  13  Ben  Monroe.  I  read  from  page  524,  from  a  decision  of  Judge 
T.  A.  Marshall,  of  Kentucky,  the  point  of  which  was  that  a  canvass 
after  an  election  had  been  made  by  the  proper  canvassing  board 
wherein  the  facts  shown  were  contradicted  by  the  result  declared, 
and  the  court  held  that  the  facts  shown  were  to  be  taken  as  the  au 
thority  rejecting  the  incompetent  and  unwarranted  and  unauthorized 
declaration  made  by  the  canvassing  officer  inconsistent  with  the  facts 
which  he  had  certified  to,  saying : 

And  if  the  consequence  stated  be  regarded  as  a  decision— 

That  is,  consequently  entitling  him  to  the  certificate  of  election — 
or  a  certificate  that  Kirtley  is,  on  the  ground  of  the  majority  stated,  entitled  to  the 


11 


162 


ELECTORAL  COMMISSION. 


office,  it  is  unauthorized  and  illegal,  because  upon  the  facts  found  and  stilted  by 
the  board  Kirlley  had  not  a  majority  of  the  legal  votes  given,  and  his  title  could 
not  be  made  out 'either  by  adding  to  his  votes  others  not  given  or  by  taking  from 
Keiroom  votes  admitted  to  be  legal  ami  actually  given  lor  him.  If  the  board  had 
a  right  to  do  anything  with  the  2  votes  not  given,  mirely  it  was  to  have  added 
them  to  the  poll  'of  Kirtloy.  But  although  this  would  have  made  a  majority,  it 
would  not,  as  we  have  seen,  have  entitled  Kirtley  to  the  office.  Aud  they  might 
just  as  well  and  with  equal  effect  have  made  the  majority  in  correcting  the  vote 
improperly  set  down  for  Nowcum  whou  it  was  given  for  Kirtley,  by  taking  2 
from  Newcuiu  and  adding  2  to  Kirtley  on  that  account,  as  to  have  made  il  as  they 
have  dome,  by  subtracting  11  instead  of  9  votes  from  Newcuin,  when  from 
their  own  showing  9  only  should  have  been  subtracted.  Or  they  might  as  well, 


of  the  2  votes,  for  a  reason  not  only  insufficient  but  actually  excluded  by  statute 
from  all  influence  in  the  calculation,  is  just  as  illegal  as  the  subtraction  of  thorn 
without  any  reason  at  all. 

The  case,  then,  as  appearing  upon  the  face  of  the  document  exhibited  by  Kirtley 
to  establish  his  right  to  the  ollice,  is  substantially  this  :  that  the  board,  finding  that 
Newcuin  has  a  majority  of  1  of  all  the  legal  votes  given,  illegally  subtract  from 
his  poll  2  of  the  legal  votes  given  for  him,  and  thus  produce  an  apparent  ma 
jority  of  1  vote  for  Kirtley  ;  consequently,  as  they  say,  entitling  him  to  the  cer 
tificate.  And  the  question  is  whether  the  court  to  which  this  document  was  pre 
sented  as  evidence  of  Kirtley's  right  to  be  sworn  in  as  its  clerk  was  bound  by  this 
argumentative  conclusion,  contradicted  by  the  facts  established  by  the  document 
itself,  and  manifestly  based  upon  an  illegal  and  arbitrary  calculation.  Wo  say  that 
this  conclusion  is  no  more  authoritative  when  based  upon  a  palpable  violation  of 
tbelawof  the  laud  directly  applicable  to  the  subject,  and  about  which  there  can  be 
no  mistake  or  difference  of  opinion,  than  if  it  bad  been  based  upon  a  palpable  viola 
tion  of  the  plainest  rules  of  vulgar  arithmetic ;  that,  the  document  being  offered  to 
the  court  as  evidence  of  the  right  involved  in  the  motion  and  for  its  consideration 
in  determining  the  right,  it  was  the  right  and  duty  of  the  couit  to  consider  the 
whole  document  and  to  determine  the  fight  as  upon  tho  whole  document  and  the 
law  arising  thereon,  as  it  appeared  to  be  for  one  or  tho  other  party  ;  and  that  if  tbe 
conclusion  had  been  expressed  in  tho  most  formal  terms,  that  "  consequently," 
(that  is,  in  consequence  of  tho  majority  assumed  or  produced  in  the  mode  actually 
pursued,)  ''it  was  adjudged  by  the  board  that  Kirtley  was  duly  elected  and  was 
entitled  to  the  office  of  clerk,''  still,  as  the  same  document  disclosed  the  process  by 
which  this  conclusion  was  arrived  at  and  showed  conclusively  that  it  was  in  direct 
contradiction  of  tho  facts  found  and  a  palpable  violation  of  the  law  applicable  to 
them,  it  was  the  right  and  duty  of  tho  court  to  disregard  the  concluding  judgment 
as  illegal  and  void,  and  consequently  insufficient  to  entitle  Kirtley  to  the  office. 

Now,  with  respect  to  the  office  of  this  certificate,  without  reading 
•what  nevertheless  if  there  were  more  time  I  should  think  very  profit 
able  reading,  I  ask  your  honors  to  remember  what  you  are  all  familiar 
with  and  that  is  the  language  and  reasoning  of  Chief-Justice  Mar 
shall  in  the  case  in  1  Cranch,  of  Marbury  vs.  Madison,  wherein  he 
draws  the  distinction  between  the  appointment  and  the  evidence  of 
that  appointment  and  points  out  the  cases  where  the  commission  it 
self  is  the  appointment  and  where  the  delivery  is  not  essential,  aud 
also  to  the  case  in  19  Howard,  of  The  United  States  ««.  Lo  Baron,  from 
•which  I  shall  read  a  paragraph  on  page  78  : 

The  transmission  of  the  commission  to  the  officer  is  not  essential  to  his  investi 
ture  of  the  office.  If,  by  any  inadvertence  or  accident,  it  should  fail  to  reach  him, 
his  possession  of  the  office  is  as  lawful  as  if  it,  were  in  his  custody.  It  is  but  evi 
dence  of  those  acts  of  appointment  and  qualification  which  constitute  his  title, 
and  which  may  be  proved  by  other  evidence,  where  the  rule  of  law  requiring  tho 
best  evidence  does  not  prevent. 

Upon  the  authority  of  an  officer  whose  sole  duty  it  is  to  certify  to 
the  facts  which  constitute  a  result  without  inquiry  into  the  right  of 
the  party,  or  into  his  qualification,  or  into  his  eligibility,  I  ask  atten 
tion  also  to  a  case  in  3  Wendell,  on  page  437 : 

The  relator  has  been  appointed  since  the  1st  day  of  January,  instant,  a  commis 
sioner  of  deeds  in  tho  city  of  New  York.  On  presenting  himself  before  the  clerk 
of  the  common  pleas  of  New  York  to  take  the  oath  of  office,  the  clerk  refused  to 
administer  the  oath,  on  the  ground  that  the  relator  was  aminor  within  tho  age  of 
twenty-one,  and  therefore  incompetent  to  hold  tho  office.  Tho  relator  applies  for 
a  mandamus  directing  the  clerk  to  administer  tho  oath. 

Chief-Justice  Savage  says : 

A  minor  and  an  alien  are  incapable  of  holding  a  civil  office  within  this  State,  (1  Re 
vised  Statutes,  116,  sec.  1 ; )  but  it  is  not  tho  province  of  tho  officer  to  whom  appli 
cation  is  made  to  administer  the  oath  of  office  to  determine  whether  the  person 
presenting  himself  is  or  is  not  capable  of  holding  an  office.  It  is  the  duty  of  such 
officer,  on  the  production  of  tho  commission,  to  administer  the  oath.  If  an  appoint 
ment  has  been  improvidently  made,  there  is  a  legal  mode  in  which  it  may  bo  de 
clared  void.  Let  an  alternative  mandamus  issue.—  3  Wendell's  Reports,  437/438. 

And  yet  why  should  not  the  clerk  of  the  court  of  common  pleas  in 
the  State  of  New  York,  who,  I  presume,  takes  the  oath  to  support  the 
constitution  of  the  State  of  New  York  and  the  Constitution  of  the 
United  States,  wheuever  an  incompetent  person  applied  to  him  to  be 
inducted  into  an  office,  and  he  is  required  to  clothe  him  with  that 
without  which  he  cannot  act,  why  should  ho  net,  in  imitation  of  the 
example  of  La  Fayette  Grover,  the  governor  of  Oregon,  constitute 
himself  tho  guardian  of  the  Constitution  of  the  country?  Why 
should  he  not  assume  also  the  same  right,  the  same  duty  "to  under 
take  to  exercise  a  discretion  which,  if  not  given  to  him  "by  statute, 
yet  belongs  to  him  as  tho  natural  protector  and  guardian  of  the  con 
stitutional  liberties  of  tho  country,  and  so  refuse  to  do  any  act  which 
ho  may  be  called  upon  to  perform,  and  which  may  be  necessary  to 
put  into  office  an  incompetent,  ineligible,  and  incapable  person  ? 

Why,  Mr.  President,  in  no  particular  does  this  certificate  of  the 
governor  of  Oregon  conform  in  any  respect  cither  to  the  statutes  of 
the  United  States  or  to  the  statutes  of  Oregon.  It  is  no  declaration 
of  the  canvass ;  it  does  not  profess  to  be.  It  is  not  a  list  of  the 
electors;  it- does  not  profess  to  be.  It  is  not  a  declaration  of  tho 
canvassing  officer,  because  he  is  not  that  officer,  but  the  secretary 
of  state  is;  and  it  might  as  well  be  claimed  that  the  attesting  wit 
ness  to  a  deed  is  a  party  to  its  covenants,  and  that  Mr.  Chadwick 
by  attesting  this  certificate  has  in  that  contradicted  that  which  ho 


had  no  right  to  contradict,  and  which  he  has  certified  to  under  the 
great  seal  of  the  State,  and  which  constitutes  the  valid,  sole,  and 
ouly  binding  result  of  that  canvass. 

But,  Mr.  President,  let  us  suppose  for  a  moment  that  this  certificate 
No.  2  is  sufficient  and  proper  and  conformable  to  law  ;  and  let  us  see 
what  legal  consequences  follow.  It  declares  that  William  II.  Odell, 
John  C.  Cart  wright,  and  E.  A.  Crouin  were  "duly  elected  electors  as 
aforesaid  for  the  State  of  Oregon."  Suppose  now  for  a  moment  that 
the  governor  had  a  right  to  make  that  declaration,  and  that  he  had  a 
right  to  make  it  in  this  form;  let  us  see  what  the  result  is.  Then 
OUell,  Cartwright,  and  Cronin  constituted  the  college  of  electors.  As 
has  been  said  forcibly  by  one  of  the  contestors  on  our  side,  that  is 
a  body  composed  of  these  individuals  who  arc  required  to  meet  to 
consult,  to  deliberate,  to  act  in  conjunction.  They  cannot  each  go 
oft'  by  himself  and  act  as  an  elector  individually ;  it  is  a  college ;  and 
a  college, even  according  to  tho  maxim  of  tho  civil  law.  can  only  be 
constituted  by  three  persons,  not  less  ;  and  by  the  Constitution  of  the 
United  States  no  college  of  electors  can  be  composed  of  any  less  num 
ber,  because  they  must  be  equal  to  each  State's  Senators  and  Repre 
sentatives,  and  as  each  State  is  entitled  to  one  Representative  with 
out  respect  to  population,  the  minimum  of  a  college  of  electors  is  at 
least  three  persons  meeting  together,  consulting  together,  deliberat 
ing  together,  voting  together.  There  seems  to  have  prevailed  a 
contrary  impression  in  Oregon,  and  that  is  that  one  of  them  might 
meet  by  himself.  I  beg  upon  that  point,  as  the  only  case  that  I  have 
heard  of  at  all  in  analogy,  to  call  the  attention  of  the  tribunal  to  the 
case  of  Sharp  vs.  Dawes,  decided  in  the  court  of  appeals  of  England, 
reported  in  tho  January  number  of  tho  Law  Reports  of  tliis  year,  in 
the  Queen's  Bench  division,  on  page  26. 

It  was  an — 

Appeal  from  an  order  of  tho  Queen's  Bench  division  making  absolute  an  order 
to  increase  the  amount  of  a  verdict  for  tho  plaintiff. 

At  the  trial  it  appeared  that  the  Great  Caradon  mine  was  a  mining  company  in 
Cornwall,  carrying  on  business  on  the  cost-book  system.  The  company  had  offices 
in  London,  and  on  the  22d  of  December,  1874,  a  notice  was  duly  given  that  a  gen 
eral  quarterly  meeting  of  tho  shareholders  would  bo  held  on  tho  30th  of  December 
at  the  London  offices  for  tho  purpose  of  passing  tho  accounts,  making  a  call,  re 
ceiving  a  report  from  the  agent,  and  transacting  any  ordinary  business  of  tho 
compauv. 

The  only  persons  who  attended  at  the  time  appointed  for  tho  meeting  were  the 
secretary,  G.  Sharp,  and  one  shareholder,  It.  H.  Silversidos — 

The  secretary  not  being  a  member  of  the  corporation — 

who  held  twenty-five  shares.  A  circular  was  then  sent  to  the  shareholders,  with 
the  accounts  and  the  following  notice : 

"  At  a  general  meeting  of  the  shareholders,  held  at  2  Greshain  buildings.  Bas- 
inghall  street,  London,  E.  C.,  oa  Wednesday,  tho  30th  day  of  December,  187  I,  pur 
suant  to  notice,  R.  II.  Silvorsidcs  in  the  Chair.  The  notice  convening  the  mooting 
having  been  read,  the  minutes  of  the  last  meeting  were  confirmed." 

"  The  financial  statement  ending  the  2-^th  of  November,  showing  a  balance  of 
£83  Us.  f>d.  against  the  shareholders,  having  been  read,  it  was 

"  Resolved,  That  the  same  bo  received  aud  passed. 

"  Captain  William  Taylor's  report  having  been  road,  it  was 

"  Resolved,  That  tho  same  bo  received  and  passed,  and,  together  with  the  financial 
statement,  be  printed  aud  circulated  among  the  shareholders. 

" Resolved,  Thatacall  of  4s.  (>d.  per  share  be  now,  and  is  hereby,  made,  payable  to 
the  secretary,  and  that  a  discount  of  5  per  cent,  be  allowed  if  paid  by  tho  25th  of 
January,  1875. 

"Resolved,  In  consequence  of  the  death  of  Lieutenant-Colonel  W.  T.  Nicolls,  and 
until  the  appointment  of  a  shareholder  to  act  in  bis  stead,  that  all  checks  bo  signed 
by  Mr.  K.  11.  Silversides  and  31r.  Grauvillc  Sharp  jointly. 

"R.  H.  SILVERSIDES, 
"  Chairman. 

"Resolved,  That  a  vote  of  thanks  bo  given  to  tho  chairman. 

"GRANVLLLE  SHARP, 

"  Secretary.'" 

There  was  no  rule  of  tho  company  varying  tho  requirements  of  the  Stannaries 
act,  (32  and  33  Viet.,  c.  10.)  By  rule  4 : 

"Tho  secretary  shall  call  a  general  meeting  of  tho  shareholders  once  in  every 
three  calendar  months,  to  be  held  at  such  tinio  and  place  as  shall  be  appointed  by 
the  committee  of  management  " 

The  defendant,  one  oil  the  shareholders,  refused  to  pay  this  call,  and  tho  action 
•was  brought  against  him  in  the  uamo  of  tho  secretary  for  tho  amounts  duo  on  a 
previous  call  and  on  this  call. 

Judgment  was  given  for  the  plaintiff  for  the  amount  due  on  tho  previous  call, 
with  leave  to  move  to  increase  it  by  the  amount  duo  on  the  second  call. 

Lord  COLERIDGE,  chief-justice.  This  is  an  attempt  to  enforce  against  tho  de 
fendant  a  call  purporting  to  have  been  made  under  S.  10  of  the  Stannaries  act,  18  )9. 
Of  course,  it  cannot  be  enforced  unless  it  was  duly  made  within  the  act.  Now, 
the  act  says  that  a  call  may  be  made  at  a  meeting  of  a  company  with  special 
notice,  and  we  must  ascertain  what  within  tho  meaning  of  tho  act  is  a-  mooting, 
aud  whether  one  person  alone  can  constitute  such  a  meeting.  It  is  said  that  tha 
requirements  of  the  act  are  satisfied  by  a  single  shareholder  going  to  the  place 
appointed  and  professing  to  pass  resolutions.  The  sixth  and  seventh  sections  of 
the  act  show  conclusively  that  there  must  bo  more  than  one  person  present ;  and 
the  word  "  meeting  "  prima  facie  means  a  coining  together  of  more  than  one  per- 
son.  It  is,  of  course,  possible  to  show  that  tho  word  "  meeting  "  has  a  moaning 
from  tho  ordinary  meaning,  but  there  is  nothing  hero  to  show  this  to  be  the  case. 
It  appears,  therefore,  to  me  that  this  call  was  not  made  at  a  meeting  of  the  com 
pany  within  tho  meaning  of  the  act.  The  order  of  tho  court  below  must  bo  re 
versed. 

HELLISH,  L.  J.  In  this  case,  no  doubt,  a  meeting  was  duly  'summoned,  but  only 
one  shareholder  attended.  It  is  clear  that,  according  to  the  ordinary  use  of  the 
English  language,  a  meeting  could  no  more  bo  constituted  by  one  person  than  a 
meeting  could  have  been  constituted  if  no  shareholder  at  all  had  attended.  No 
business  could  bo  done  at  such  a  meeting,  and  tho  call  is  invalid. 

Mr.  MERRICK.  Permit  me  to  ask  a  question.  Suppose  there  had 
been  no  dispute  about  the  regularity  of  the  appointment  of  electors 
and  two  of  them  had  died  ? 

Mr.  MATTME  WS.  I  suppose  the  vacancy  would  have  to  bo  tilled  in 
some  mode  to  bo  provided  by  the  Legislature.  They  did  not  die  ;  they 


ELECTORAL  COMMISSION. 


163 


were  there  in  their  places.  But  this  gentleman,  Mr.  Cronin,  accord 
ing  to  his  own  statement  of  what  occurred  at  that  time,  did  not  act 
with  the  others  aud  went  on  and  appointed  two  more  himself. 

Mr.  Commissioner  EDMUNDS.  He  says  in  his  certificate  that  they 
refused  to  act  with  him. 

Mr.  MATTHEWS.  And  he  thereupon  appointed  two  others  in  their 
stead.  Now,  Mr.  President  and  gentlemen,  I  take  it  that  one  in  a  col 
lege  which  necessarily  consists  of  three  is  not  capahle  by  himself  of 
instituting  any  action,  and  that  the  action  of  a  quorum  or  majority 
of  the  body,  the  record  of  whose  action  is  before  us,  who  certii'y  that 
they  having  ascertained  the  existence  of  a  vacancy  went  on  to  fill  it, 
is  to  be  taken  as  the  conclusive  and  legitimate  account  of  the  pro 
ceedings  of  the  body.  In  support  of  the  conclusion  to  be  based  upon 
this  argument,  I  refer  with  satisfaction  to  the  decision  of  the  supreme 
court  of  the  State  of  Oregon,  cited  by  my  learned  friend,  Judge  Hoadly, 
last  evening.  That  was  the  case  where  the  prosecuting  attorney 
having  accepted  an  office  under  the  Government  of  the  United  States, 
•which  was  incompatible  according  to  the  laws  of  Oregon  with  the 
office  which  he  had  previously  exercised  under  the  laws  of  Oregon, 
the  governor  of  Oregon  commissioned  another  person  as  district  at 
torney  upon  the  ground  that  he  had  ascertained  and  declared  a,  va 
cancy  in  consequence  of  the  ineligibility  of  the  occupant,  on  account 
of  his  incompetency  to  continue  to  hold  the  office.  In  that  case,  by 
the  law  of  Oregon,  the  governor  is  authorized  to  fill  vacancies,  and 
upon  the  argument  that  the  person  authorized  to  fill  a  vacancy  has 
the  power  to  ascertain  and  determine  and  declare  the  existence  of  the 
facts  which  constitute  a  vacancy,  by  that  judgment  these  two  elect 
ors,  who,  by  the  terms  of  the  statute  of  Oregon,  were  the  only  per 
sons  who  had  power  to  fill  vacancies,  had  the  right  also  to  ascertain 
and  declare  the  existence  of  those  facts  which  constituted  in  law  a 
vacancy. 

And  that  brings  me  to  a  consideration  of  the  question  as  to  what 
under  the  laws  of  Oregon  constitutes  a  vacancy  in  the  electoral  col 
lege.  My  friend  on  the  other  side  who  addressed  the  tribunal  last 
evening  expended  some  time  and  strength  in  undertaking  to  demon 
strate  by  the  application  of  the  maxim  noscilur  a  sociis  that  the 
enumeration  of  the  particular  instances  of  a  vacancy  in  that  section 
of  the  statute  which  authorizes  the  body  to  fill  the  vacancy  excludes 
the  idea  of  the  words  "or  otherwise"  expressing  any  other  than 
those  of  a  like  class.  He  limits,  therefore,  what  constitutes  a  va 
cancy  to  the  occurrence  of  facts  transpiring  since  the  date  of  the 
popular  election.  I  think  that  in  such  a  statute,  where  the  object  is 
to  see  to  it  that  the  substantial  rights  of  the  State  in  keeping  up  the 
full  number  to  which  it  is  entitled  in  its  electoral  college,  in  order 
that  its  just  influence  in  public  affairs  may  not  be  diminished  by  any 
of  the  accidents  and  casualties  of  life,  requires  that  no  such  rule,  no 
such  maxim,  no  such  limit  be  applied  to  its  interpretation ;  that  it  is, 
on  the  other  hand,  to  be  interpreted  in  a  large  and  liberal  sense  for 
the  promotion  of  the  object  which  the  statute  had  in  view,  and  that 
is  the  furnishing  to  the  body  of  the  electoral  college  the  means,  the 
opportunity,  the  power  to  fill  vacancies  in  their  body  which  at  the 
day  when  they  meet  are  ascertained  to  have  occurred,  as  fully  aud 
completely  as  the  Legislature  itself  by  any  means  could  supply. 
Certainly  there  is  no  reason  why,  in  its  application  to  such  a  state  of 
things,  the  ordinary,  plain,  and  common-sense  meaning  of  the  terms 
should  be  wrested  by  the  application  of  any  artificial  maxim. 

But  without  dwelling  on  that  I  beg  to  call  the  attention  of  yourself, 
Mr.  President,  and  the  tribunal  to  one  or  two  authorities  on  the  point 
that  a  vacancy  such  as  we  claim  to  have  existed  in  this  case  may  be  and 
be  declared.  I  refer  tothe  case  of  Stevens  vs.  Wyatfr,  16  Ben  Monroe, 
542,  where  it  was  expressly  held  that  the.election  of  an  ineligible  can 
didate,  (the  very  point  made  here,)  so  far  from  electing  a. minority  can 
didate,  created  a  vacancy,  a  vacancy  ab  initio,  from  the  commencement 
of  the  term :  aud  with  reference  to  the  case  of  The  Commonwealth  vs. 
Hanley,  in  9  Pennsylvania  State  Reports,  513,  and  a  large  number  of 
similar  cases,  it  is  only  necessary  to  point  out  this  fact  to  show  their 
want  of  application  to  this  argument ;  aud  that  is,  that  in  these  cases, 
notably  in  the  case  in  9  Pennsylvania  State  Reports,  the  facts  were  that 
there  was  an  incumbent  of  the  office  by  virtue  of  a  previous  election 
holding  over  under  a  statute  to  that  effect  until  his  successor  should  be 
elected  and  qualified.  The  successor  was  elected,  but  died  before  he 
was  qualified  and  before  the  commencement  of  the  term  of  oi'iice,  and 
because  by  express  statute  the  officer  already  in  held  over  it  was  ad 
judged  that  there  was  no  vacancy  because  there  was  an  existing 
incumbent. 

Mr.  Commissioner  EDMUNDS.  Under  the  statute  ho  would  hold 
until  his  successor  was  qualified. 

Mr.  MATTHEWS.  Until  elected  and  qualified.  In  the  opinion  of 
the  judges  in  j-eDinslow,  38  Maine,  597,  the  judges  of  the  supreme  court 
of  Maine  certified  to  the  governor  the  exact  state  of  the  case  as  fur 
nishing  the  ground  for  the  opinion  which  I  maintain,  that,  a  majority 
of  the  votes  at  an  election  having  been  canvassed  for  a  man  already 
dead,  the  judges  held  that  there  was  a  vacancy  in  the  office  beginning 
with  its  term  and  entitling  the  governor  to  appoint. 

I  have  already  referred  last  evening,  in  a  colloquy  which  took  place 
between  my  brother  Hoadly  and  myself,  to  the  Claiborue  and  Ghol- 
son  case,  which  is  a  valid  precedent  on  the  point.  What  was  that? 
In  the  interim  between  the  expiration  of  the  term  of  a  member  of 
Congress  by  the  expiration  of  the  Congress  itself  on  the  4th  of  March 
aud  the  period  provided  by  the  laws  of  the  State  for  the  regular  elec 


tion  biennially,  in  the  case  of  an  extra  session  being  called,  there  ia 
a  vacancy  in  the  representation  of  tbat  State  in  the  House  of  Repre 
sentatives  which  under  the  Constitution  of  the  United  States  is  to  be 
filled,  and  it  was  filled  in  that  case  by  an  election  held  under  a  proc 
lamation  of  the  governor  calling  for  an  election  to  fill  a  vacancy. 
The  two  members  sent  were  admitted  in  the  extra  session  to  the 
whole  Twenty-fifth  Congress;  and  afterward  the  resolution  was 
only  rescinded  so  far  as  to  adjudge  that  they  ought  not  to  have  been 
admitted  as  members  for  the  entire  term,  but  only  to  fill  that  vacancy 
until  by  regular  election  under  the  statutes  of  the  State  the  full  term 
could  be  filled. 

Now  I  call  attention  to  another  congressional  precedent  in  re  Flan 
ders  and  Hahn,  Thirty-seventh  Congress,  third  session,  in  which  there 
was  a  report  by  Mr.  Dawes,  chairman  of  the  Committee  of  Elections. 
Flanders  and  Hahn  claimed  to  have  been  elected  members  of  the 
House  of  Representatives  from  Louisiana.  The  law  of  that  State, 
entitled  "  An  act  relative  to  elections,"  approved  March  15, 1855,  pro 
vided  : 

SEC.  33.  Be  it  further  enacted,  etc.,  That  in  case  of  vacancy,  by  death  or  otherwise, 
in  the  said  office  of  rcprcssiitalivo,  betw.-on  the  general  elections,  it  shall  be  the 
duty  of  the  governor,  by  proclamation,  to  cause  an  election  to  be  held  according  to 
law  to  fill  the  vacancy. 

General  Shepley,  having  been  appointed  military  governor  of  the 
State,  on  the  14th  of  November,  1862,  issued  his  proclamation  or 
dering  an  election  for  members  of  Congress  in  the  first  aud  second 
congressional  districts,  to  be  held  on  the  3<1  of  December,  1862.  The 
objection  was  made  in  debate  that  the  election  was  void,  because,  the 
time  for  the  regular  election  having  passed  without  one  being  held, 
there  was  no  vacancy  occasioned  by  death  or  otherwise  which  could 
be  filled  by  a  special  election  under  the  governor's  proclamation.  Mr. 
Dawes,  in  reply,  said  : 

Where  the  time  prescribed  by  the  regular  law  for  the  election  of  a  Representative 
to  Congress  passes,  for  any  reason  whatever,  and  there  is  nobody  in  office,  there  is 
a  vacancy  which  the  governor  of  a  State  is  required  to  fill.  I  think  the  oliico  is 
quite  as  empty  with  nobo;ly  in  it  as  if  somebody  had  been  in  it  a  part  of  the  term 
and  then  died.  The  House  has  passed  upon  that  question  heretofore.  The  ques 
tion  was  np  for  discussion  in  this  Hall  in  one  of  the  Virginia  cases,  and  the  point 
was  taken  by  the  claimant,  in  the  House  that  there  could  uot  be  a  vacancy  unless 
the  oflice  hail  been  once  filled  ;  but  the  House  thought  otherwise,  and  I  think  the 
House  was  right. 

The  claimants  were  admitted.  But,  Mr.  President  and  gentlemen 
of  the  Commission,  it  is  hardly  worth  while  to  hunt  for  authority  on 
this  point  when  it  is  so  near  at  hand  in  the  State  of  Oregon  itself, 
for  that  State  has  undertaken  to  define  by  statute  what  shall  consti 
tute  a  vacancy.  The  very  text  of  the  statute  which  prescribes  the 
mode  for  the  election  of  presidential  electors,  title  (i,  section  48, 
enumerates  the  instances  which  shall  constitute  vacancies.  They 
are  : 

1.  The  death  of  tho  incumbent. 

2.  His  resignation. 
3   His  removal. 

4.  His  ceasing  to  be  an  inhabitant  of  the  district,  county,  town,  or  village  for 
which  he  shall  have  been  elected  or  appointed,  or  within  which  the  duties  of  his 
office  are  reqiiired  to  be  discharged. 

5.  His  conviction  of  any  infamous  crime  or  of  any  offense  involving  a  violation 
of  his  oath. 

6.  His  refusal  or  neglect  to  take  his  oath  of  office  or  to  give  or  renew  his  official 
bond,  or  to  deposit  such  oath  or  bond  within  the  time  prescribed  by  law. 

7.  Tho  decision  of  a  competent  tribunal,  declaring  void  his  election  or  appoint 
ment. 

Now,  it  is  argued  on  the  other  side  that  this  cannot  apply  because, 
in  the  case  of  Watts,  on  the  supposition  that  he  was  ineligible  at  the 
time  of  his  original  appointment,  there  was  no  decision  by  a  compe 
tent  tribunal  declaring  void  his  election  or  appointment;  and  yet  tho 
other  side  have  argued  that  the  governor  had  the  right  to  declare  his 
election  void  and  that  that  was  the  decision  of  a  competent  tribunal. 
If  so,  then  I  ask  whether  the  consequence  does  not  flow  from  this 
statute  that,  instead  of  electing  the  minority  candidate,  it  merely 
created  a  vacancy. 

But,  Mr.  President  and  gentlemen  of  the  Commission,  there  is  an 
other  view  to  take,  much  stronger  and  entirely  conclusive.  It  has 
been  argued — it  must  be  argued  in  order  to  sustain  the  claim  made 
heio  ;  without  it  there  is  no  standing-ground — that  the  election  of  an 
ineligible  candidate  under  the  Constitution  is  void,  void  ab  initio,  void 
by  virtue  of  the  constitutional  provision.  On  that  they  base  the 
rfght  of  the  minority  candidate,  because  they  say  that  a  man  ineligi 
ble  to  hold  an  office  or  a  man  ineligible  to  be  appointed  to  an  office 
cannot  take  it,  cannot  hold  it ;  that  the  attempt  is  abortive ;  that  it 
is  null  and  void ;  in  other  words,  that  an  ineligible  candidate  actu 
ally  elected  cannot  become  an  incumbent;  aud  the  gentlemen  inter 
pret  this  statute  by  interpolating  the  word  i:  incumbent"  throughout 
all  of  its  provisions.  Bo  it  so  ;  it  establishes  my  proposition.  What 
is  it  then  ?  "  The  decision  of  a  competent  tribunal  declaring  void 
his,"  that  is,  the  incumbent's,  "  election  or  appointment."  Then  a 
man  can  be  an  incumbent,  although  his  election  or  appointment  is  void  !  In 
other  wrords,  this  statute  recognizes  tho  law  and  the  fact  that  prohi 
bitions  establishing  incapacities  for  office  do  not  necessarily  execute 
themselves  otherwise  than  through  the  judgments  of  competent  tri 
bunals  ;  that  a  man,  notwithstanding  the  incapacity,  may  in  fact  hold 
tho  office,  and  if  his  holding  of  that  office  is  not  legal  and  valid  he 
fills  it  with  his  natural  person  and  capacity  as  completely  as  if  he 
was  invested  with  all  lawful  power  until  it  becomes  vacant  cither  by 
the  decision  of  a  competent  tribunal  declaring  the  nullity  of  his  orig- 


164 


ELECTORAL  COMMISSION. 


inal  appointment  or  by  his  getting  out  of  the  way  in  some  other 
mode.  Now,  if,  notwithstanding  the  election  is  void,  an  ineligible 
candidate  may  actually  bo  put  into  occupation  of  the  office  until  a 
decision  of  a  competent  tribunal  declaring  the  invalidity  of  his  elec 
tion  creates  a  vacancy  under  that  statute,  I  ask  in  all  reason  and 
common  sense  whether  he  cannot  voluntarily  create  a  vacancy  by  do 
ing  that  which  he  might  bo  compelled  to  do  by  a  decision  of  a  com 
petent  tribunal. 

But  it  is  said  that  this  title  only  applies  to  vacancies  occurring  in 
State  offices  and  cannot  be  held  to  apply  to  the  case  of  the  office  of  elect 
or.  But,  Mr.  President  and  gentlemen,  even  on  the  supposition  that  it 
refers  primarily  to  elections  to  offices  held  under  the  State  const  itutiou 
and  the  authority  of  the  State,  nevertheless  the  reference  in  the  other 
title,  which  has  express  directions  concerning  vacancies  in  the  elect 
oral  body  and  a  mode  of  filling  them,  must  be  construed,  because  in 
pari  materia,  by  the  context ;  so  that  when  you  come  to  understand 
what  the  legislature  meant  by  a  vacancy  occurring  "otherwise"  in 
the  electoral  body  it  means  a  vacancy  occurring  iu  any  one  of  the 
ways  in  which  by  law  a  vacancj'  may  be  created  in  reference  to  State 
officers. 

So,  then,  there  is  no  flaw  in  the  argument ;  it  is  conclusive  ;  it  is 
irrefragable.  There  it  stands  on  the  express  terms  and  letter  of  the 
very  statutes  of  the  State  showing  that,  admitting  Watts  to  have  been 
an  ineligible  candidate,  admitting  his  election  to  have  been  utterly 
void,  still  he  was  the  person  declared  duly  elected  because  he  had  the 
highest  number  of  votes ;  and  notwithstanding  his  iueligibility  and 
notwithstanding  the  voiduess  of  his  election,  ho  was  capable  under 
the  constitution  and  laws  of  Oregon  of  being  inducted  into  the  office, 
of  holding  it  until  by  resignation  or  the  decision  of  a  competent  tri 
bunal  ousting  him  from  it  a  vacancy  should  be  declared  ;  and  then  a 
majority  of  the  electoral  colllege  by  a  plurality  of  votes,  and  not  by  the 
solitary  voice  of  Cronin,  were  called  into  being  and  into  efficacy,  and 
had  power  to  fill  up  to  the  full  measure  of  constitutional  right  the 
number  of  votes  to  which  the  State  of  Oregon  was  entitled. 

I  must  confess,  Mr.  President  and  gentlemen,  that  I  was  not  a  little 
surprised  at  the  view  which  my  learned  friend  [Mr.  Hoadly]  took 
about  the  condition  of  the  law  of  England  and  this  country  on  the 
subject  of  the  effect  of  votes  cast  for  an  ineligible  candidate.  I  know 
that  he  has  given  far  more  industriously  his  attention  to  the  collec 
tion  of  cases  on  that  subject  than  I  have,  for  I  confess  that  I  never 
regarded  it  as  quite  worth  my  while  to  trace  out  in  detail  the  history 
of  judicial  decisions  on  that  subject.  I  was  satisfied  with  a  general 
knowledge  derived  from  an  examination  of  a  few  cases  and  from  the 
tendency  of  the  reasonings  which  lie  at  the  foundation  of  the  true 
doctrine  on  the  subject. 

The  PRESIDENT.  Is  there  any  difference  between  a  vote  cast  for 
an  ineligible  candidate  and  a  blank  ? 

Mr.  MATTHEWS.  Yes,  sir ;  just  as  much  as  there  is  between  a  man 
and  a  mouse,  between  a  live  man  capable,  by  the  natural  exercise  of 
his  functions,  of  doing  the  thing  which  the  law  puts  upon  him,  and  a 
mere  nothing. 

A  man's  a  man  for  a'  that. 

And  though  incapable  by  law  of  holding  an  office,  he  nevertheless 
may  be  put  into  an  office,  and  if  nobody  objects  he  can  exercise  the 
functions  of  the  office  and  discharge  its  duties,  and  every  single  act 
has  just  as  much  vitality  and  validity  as  if  ho  was  the  most  thoroughly- 
furnished  man  by  the  law  for  the  performance  of  all  its  duties.  Al 
low  me  on  that  point  to  refer  a  moment  to  a  case  that  I  intended  to 
refer  to,  a  decision  and  an  opinion  of  Chief-Justice  Chase  in  the 
Caesar  Griffin  case,  for  the  purpose  of  enforcing  what  I  believe  to  be 
the  true  doctrine  on  this  subject ;  and  that  is,  that  without  legisla 
tion  declaring  the  consequences  of  the  casting  of  votes  for  an  ineligi 
ble  man,  under  such  circumstances  there  is  no  power  in  the  Consti 
tution  or  out  of  it  to  put  it  in  force. 

By  the  fourteenth  amendment  to  the  Constitution  certain  persons 
were  declared  to  be  disqualified  to  hold  certain  offices,  and  a  judge  in 
the  State  of  Virginia  came  within  the  prohibit  iou,the  actual  incumbent 
of  an  office.  If  the  prohibition  has  that  blighting  and  paralyzing 
effect  which  seems  to  be  attributed  to  it  by  some,  it  executes  itself  at 
the  moment  it  comes  into  force  upon  the  state  of  things  just  as  they 
are,  and  it  deprives  ths  officer,  if  he  be  in  office,  of  the  power  to  continue 
in  office  just  as  much  as  it  deprives  the  elected  man  from  taking 
office.  And  if  the  doctrine  be  true  every  act  done  by  this  judge  after 
the  adoption  of  that  fourteenth  amendment  became  utterly  null  and 
void,  provided  always  it  be,  as  is  claimed,  the  legal  consequence  from 
the  doctrine  that  an  incapable  person  holding  an  office  makes  all  his 
acts  invalid.  In  this  case  it  was  said  to  invalidate  the  sentence  of 
punishment  of  a  criminal  who  had  been  adjudged  to  the  penitentiary 
by  this  judge  while  in  office,  Judge  Sheffey.  What  I  call  special  at 
tention  to  is  that  Chief-Justice  Chase,  not  content  with  referring  to 
the  general  principle  and  to  the  decided  cases — which  are  just  as  nu 
merous  as  all  the  disqualifying  acts  and  statutes  of  Parliament  in  Great 
Britain  passed  during  the  time  of  civil  war— but  arguing  a  case  upon 
our  own  Constitution,  goes  on  to  show  by  illustrations  what  his  opin 
ion  is. 


Mr.  Commissioner  THURMAN.    From  what  do  you 
Mr.  MATTHEWS.    This  is  Johnson's  Report,  so-cal 
cisions,  page  425. 
Mr.  Commissioner  GARFIELD.    Circuit  court  Reports? 
Mr.  MATTHEWS.    The  circuit  courts  in  Virginia. 


read  ? 
illed,  Chase's  De- 


Instructive  argument  and  illustration  of  this  branch  of  the  case  might  be  do- 
•ivcd  from  an  examination  of  those  provisions  of  the  Constitution  ordaining  that  no 
)t>rson  shall  be  a  Representative  or  Senator  or  President  or  V  ice-President  unless 
javiii"  certain  pre-preaoribed  qualifications.  These  provisions,  us  well  as  those 
which  ordain  that  no  Senator  or  Representative  shall,  during  his  term  of  service, 
lio  appointed  to  any  oflico  under  the  United  States  uuder  certain  circumstances,  aud 
that  no  person  holding  any  such  office  shall,  while  holding  such  office,  be  a  member 
of  either  House,  operate  on  the  capacity  to  take  office.  The  election  or  appoiut- 
ueut  itself  is  prohibited  and  invalidated ;  and  yet  no  instance  is  believed  to  exist 
.rhere  a  person  has  been  actually  elected,  and  has  actually  taken  the  office,  notwith 
standing  the  prohibition,  and  his  acts,  while  exercising  its  functions,  have  boon 
icld  invalid.  *  *  * 

It  results  from  the  examination  that  persons  in  office  by  lawful  appointment  or 
election  before  the  promulgation  of  the  fourteenth  amendment,  are  not  removed 
therefrom  by  the  direct  aud  immediate  effect  of  the  prohibition  to  hold  office  con 
tained  in  the  third  section  ;  but  that  legislation  by  Congress  is  necessary  to  give 
elfect  to  the  prohibition,  by  providing  for  such  removal.  And  it  results  further 
that  the  exercise  of  their  several  functions  by  these  officers,  until  removed  in  pur- 
uancoof  such  legislation,  is  not  unlawful. 

On  page  421 — 

In  the  judgment  of  the  court  there  is  another,  not  only  reasonable,  but  very 
clearly  warranted  by  the  terms  of  the  amendment,  and  recognized  by  the  legisla 
tion  of  Congress.  The  object  of  the  amendment  is  to  exclude  from  certain  offices 
a  certain  class  of  persons.  Now,  it  is  obviously  impossible  to  do  this  by  a  simple 
declaration,  whether  in  the  Constitution  or  in  an  act  of  Congress,  that  all  persons 
included  within  a  particular  description,  shall  not  hold  office,  for,  in  the  very 
nature  of  things,  it  must  bo  ascertained  what  particular  individuals  are  embraced 
by  the  definition  before  any  sentence  of  exclusion  can  be  made  to  operate.  To 
accomplish  this  ascertainment  and  ensure  effective  results,  proceedings,  evidence, 
decisions,  and  enforcements  of  decisions,  more  or  less  formal,  are  indispensable, 
and  these  can  only  be  provided  for  by  Congress. 

Mr.  President  and  gentlemen,  certainly  it  is  reasonable  to  suppose 
that  such  ought  be  the  construction. 

Mr.  Commissioner  MORTON.  I  wish  to  ask  a  question.  Where 
an  office  is  tilled  by  an  ineligible  person  serving  as  officer  de  facto  and 
his  acts  are  held  valid  as  to  third  persons,  could  the  office  at  the  same 
time  be  held  to  be  vacant  ? 

Mr.  MATTHEWS.  No,  sir,  it  is  not  vacant.  Ho  is  in  office,  acting 
in  office.  He  can  vacate  it  by  resignation ;  but  if  there  is  an  officer 
de  facto  the  office  is  not  vacant. 

Mr.  Commissioner  MORTON.  My  question  is  whether,  holding  the 
office  to  be  vacant,  would  not  the  effect  be  to  hold  his  acts  to  be  void 
as  to  third  persons  ? 

Mr.  MATTHEWS.  Yes,  sir,  if  the  office  was  vacant,  certainly.  Then 
there  is  no  officer  there.  But  the  very  point  of  this  decision  is  that 
although  ineligible  to  hold,  though  incapable  to  take,  though  pro 
hibited  by  the  constitution  from  continuing  in  office,  nevertheless  he 
was  iu  office,  and  there  was  no  vacancy.  Such  is  the  case  in  11  Ser 
geant  and  Rawle,  which  was  read  to  the  court  in  the  Louisiana  case, 
the  case  of  the  director  of  the  Bank  of  Washington. 

Mr.  Commissioner  GARFIELD.  What  was  the  decision  of  Chief- 
Justice  Chase  in  that  case  in  regard  to  the  judgment  against  Gritlin  ? 

Mr.  MATTHEWS.  He  upheld  the  judgment  and  remanded  the 
prisoner,  it  being  an  application  for  a  habeas  corpus  to  discharge  him 
on  the  ground  of  the  invalidity  of  the  sentence.  The  case  in  11  Ser 
geant  aud  Rawle,  413,  of  Baird  vs.  The  Bank  of  Washington,  which 
argues  the  question  at  length,  states  that — 

This  principle  of  colorable  election  holds  not  only  in  regard  to  the  right  of  elec 
tion,  but  also  of  being  elected.  A  person  indisputably  ineligible  may  be  an  officer 
de  facto  by  color  of  election. 

I  was  on  the  point,  however,  of  referring  a  little  more  at  large  to 
the  question  about  the  self-executing  power  of  the  Constitution  in 
reference  to  these  prohibitions.  It  was  urged  in  argument  on  another 
occasion  that  no  such  legislation  was  needed  in  the  case  of  these  pro 
hibitions,  as  was  shown  by  the  analogy  of  certain  other  prohibitions, 
as,  for  instance,  it  was  said  that  there  was  a  prohibition  upon  the 
States  against  emitting  bills  of  credit ;  the  States  are  prohibited 
from  passing  any  expost  facto  laws,  or  any  laws  impairing  the  obli 
gation  of  contracts ;  and  it  was  said  with  an  air  of  triumph,  as  if  the 
question  itself  was  its  own  answer,  what  legislation  Avas  ever  needed 
to  execute  those  provisions  of  the  Constitution  ?  Why,  Mr.  President 
and  gentlemen,  the  question  proves  my  proposition,  because  there  has 
been  legislation  iu  execution  of  those  provisions,  and  without  it  they 
could  not  be  executed  to-day.  For  instance,  what  is  the  sole  example 
of  the  execution  of  that  constitutional  prohibit  ion  against  the  laws  of 
States  impairing  the  obligation  of  contracts  ?  It  is  never  executed  ex 
cept  when  it  arises  as  a  judicial  question  between  private  persons.  A 
sues  B  upon  a  promissory  note  ;  B  sets  up  a  defense  that  a  statute  of 
the  State  in  which  he  resides  has  discharged  him  from  his  obligation. 
A  demurs  to  the  defense,  aud  the  cause  is  carried,  by  virtue  of  the 
judiciary  act  of  Congress,  to  the  Supreme  Court  of  the  United  States 
from  the  decision  of  a  State  court,  in  order  to  determine  that  ques 
tion,  and  they  do  determine  it,  because  the  Supreme  Court,  having 
become  vested  by  that  act  of  Congress  with  jurisdiction  and  the 
power  to  try  cases  at  law  and  in  equity  arising  under  the  Constitu 
tion  and  laws  of  the  United  States,  is  bound  by  the  doctrine  that  the 
Constitution  of  the  United  States  is  the  law  of  that  case  to  enforce 
it  judicially  ;  but  if  the  court  had  never  been  empowered  to  act  by 
an  act  of  Congress,  it  could  not  have  executed  that  provision  of  the 
Constitution. 

Mr.  Commissioner  BRADLEY.  Could  not  members  of  Congress 
exec*ute  it  without anjT  act  of  Congress? 

Mr.  MATTHEWS.  Only  by  that  provision  of  the  Constitution 
which  makes  each  House  the  judge  of  the  elections,  returns,  and 


ELECTORAL  COMMISSION. 


1G5 


qualifications  of  its  own  members;  ami  it  is  not  executed  in  any 
other  way  than  as  dependent  on  the  political  will  and  power  of  each 
House,  and  each  House  could,  in  defiance  of  the  Constitution,  with 
out  any  means  of  preventing  it,  admit  an  ineligible  member  to  its 
body.  Where  is  the  power  to  execute  the  Constitution  against  the 
Hoiise  if  it  chose  to  admit  an  incompetent  person,  an  incapable 
pers  n  ? 

Mr.  President,  just  think  of  it.  It  is  proposed  now  in  this  case, 
without  previous  legislation,  without  any  indication  of  the  will 
of  Congress  as  to  what  ought  to  be  the  consequences,  to  disfranchise 
the  people  of  a  State  because  some  man  holding  an  insignificant  and 
unknown  office  of  trust  or  profit  under  the  United  States,  in  violation 
of  the  provisions  of  the  Constitution,  has  been  voted  for  as  elector. 
Non  constat  but  that  Congress  in  the  execution  of  its  power  to  legis 
late  to  carry  into  effect  those  provisions  of  the  Constitution  might 
withhold  any  such  consequence  as  that.  They  might  by  legislation 
prevent  such  appointments,  anticipate  them,  impose  penalties  for  the 
violation;  but  I  take  it  that  the  American  Congress  has  yet  to  come 
into  being  that,  if  deliberately  called  upon  to  legislate  in  that  behalf, 
would  impose  the  penalty  of  disfranchisement  upon  a  State  because 
an  elector  had  been  voted  for  who  was  incapable  of  exercising  the 
office. 

Mr.  Commissioner  BRADLEY.  Your  position,  then,  is  that  no  one 
but  the  regularly  constituted  authorities  have  jurisdiction  and  can 
oust  an  ineligible  person  who  has  been  elected  T 

Mr.  MATTHEWS.  Yes,  sir:  because  there  must  be  a  tribunal  to 
determine  the  facts.  It  is  a  judicial  question,  a  question  to  be  ascer 
tained  upon  evidence,  or  at  any  rate  there  must  be  some  mode  pro 
vided  by  law  to  go  into  the  question  and  decide  it,  whether  judicial 
or  otherwise. 

Mr.  President,  I  have  sufficiently  argued  all  the  points  arising  upon 
this  case  that  occur  to  me  which  require  the  attention  that  I  ought 
to  give,  and  I  leave  the  remainder  of  the  argument  to  be  made  by 
the  distinguished  gentlemen  with  whom  I  have  the  honor  to  act  in 
this  argument.  I  have  endeavored  to  treat  this  argument  as  a  judi 
cial  argument  and  as  a  professional  argument.  I  am  aware  of  the  pecu 
liar  nature  of  the  question,  I  am  aware  of  the  peculiar  constitution 
of  the  tribunal.  I  am  perfectly  well  apprised  that  this  is  not  an  or 
dinary  litigation,  that  it  is  a  controversy  involving  party  passions, 
party  prejudices,  personal  interests,  and  public  interests.  1  have 
endeavored  in  the  course  of  what  has  seemed  to  me  to  be  considera 
ble  provocation,  nevertheless  to  possess  my  soul  in  patience.  I  have 
not  from  the  beginning  until  now  argued  a  proposition  affirmatively 
that  I  do  not  affirmatively  believe  to  be  sound  and  true.  I  have  not 
defended  any  position  which  I  did  not  sincerely  believe  not  only  to 
bo  defensible,  but  worthy  of  being  defended.  I  do  not  stand  here 
to-day  as  counsel  for  any  party  or  any  person.  I  stand,  Mr.  President 
and  gentlemen,  as  I  have  endeavored  to  stand  from  the  beginning,  in 
the  attitude  of  a  man  who  stands  by  great  constitutional  and  legal 
principles.  I  care  nothing  whatever  for  the  popular  cry  and  clamor 
that  it  may  suit  anybody  with  loud  and  boisterous  trumpets  to  pro 
claim  to  the  East  and  to  the  West  and  to  the  North  and  to  the  South. 
I  am  satisfied  with  what  I  have  said  or  attempted  to  say,  except  that 
I  have  been  able  to  do  it  so  imperfectly  and  unsatisfactorily.  I  am 
satisfied,  and  I  shall  ever  remember  hereafter  with  grateful  recollec 
tions  if  I  shall  be  able  to  attribute  to  any  word  that  I  have  uttered 
the  safety  not  only  as  I  believe  of  our  constitutional  form  of  govern 
ment,  but  doctrines  which  lie  at  the  foundation  of  all  possible  gov 
ernment. 

This  idea  that  any  man  and  every  man,  whether  in  his  private  and 
individual  capacity  or  in  his  official  character  with  certain  prescribed 
bounds  for  his  power,  has  a  right  to  step  out  of  his  sphere  at  any 
moment  when  his  party  interests  or  his  personal  prejudices  or  any 
other  motives  may  call  him  to  what  he  considers  to  be  the  execution 
of  the  high  act  of  conserving  and  preserving  constitutional  powers 
and  rights,  irrespective  merely  of  his  influence  morally  and  polit 
ically  as  a  citizen ;  this  idea  which  has  pervaded  the  action  in  this 
cnse,  to  ascribe  it  to  the  best,  to  the  highest  motives,  and  God  knows 
I  only  wish  it  were  true  that  I  could  ascribe  it  to  any  such  motives, 
on  the  supposition  that  the  governor  of  a  State,  limited  by  law  to 
the  performance  of  certain  strictly  defined  and  well-understood  min 
isterial  duties,  can  upon  his  own  mere  motion,  on  the  idea  that  there 
is  something  resting  on  his  conscience  on  behalf  of  the  great  sogis  of 
the  Constitution,  to  take  upon  himself  functions  and  powers  which 
do  not  belong  to  him,  which  have  been  denied  to  him,  is  simply  to 
confuse  all  the  boundaries  and  political  divisions  of  government;  it 
is  to  unite  the  executive,  the  judicial,  and  tin  legislative  powers  of 
society  in  a  single  hand  ;  and  the  wisest  statesmen  who  framed  the 
foundations  of  our  Government  warned  us  at  the  time  of  the  adoption 
of  our  Federal  Constitution  against  that  very  consummation  and 
applauded  as  they  had  a  right  to  do  the  work  of  their  hands,  guided 
as  they  were  by  divine  wisdom  in  the  establishment  of  our  present 
form  of  government  under  our  model  Constitution  as  the  best  ex 
ample  the  world  had  ever  seen  of  that  deliberate  division  and  entire 
definition  of  the  boundary  between  the  departments  of  government. 
It  Avas  the  very  definition  and  essence  of  personal  and  political  free 
dom. 

Mr.  Commissioner  STRONG.  Mr.  President,  itis  very  apparent  from 
the  course  this  argument  has  taken  that  the  whole  time  allotted  to  the 
counsel  on  each  side  is  likely  to  be  consumed  before  we  come  to  the  ques 


tion  of  the  admissibility  of  this  evidence.  Already  on  the  part  of  the 
objectors  to  certificate  No.  1  two  hours  and  a  half  have  been  consumed, 
and  on  the  other  side  nearly  two  hours  have  been  consumed,  and  yet 
the  question  is  pending  before  us  whether  there  is  any  evidence  to  be 
received  outside  of  the  certificates  and  papers  submitted  to  us  by  the 
President  of  the  Senate.  This  is  likely  to  produce  a  very  awkward 
state  of  things.  I  should  like  to  have  theevideuce  in,  if  it  is  admissible, 
before  the  counsel  yet  to  speak  conclude  the  argument  which  shall 
bo  submitted  by  them  ;  and  I  move  you,  sir,  that  the  evidence  de 
scribed  in  the  first  item  of  the  offer  which  was  made  last  evening 
be  received  subject  to  the  decision  of  the  Commission  in  regard  to  its 
legal  effect,  and  if  there  be  any  evidence  on  the  other  side  which  is 
intended  to  counteract  this,  that  that  also  be  received  at  this  stage 
of  the  proceedings,  before  the  two  counsel  who  are  to  conclude  the  ar 
gument  shall  commence  the  argument. 

Mr.  Commissioner  GARFIELD.  You  refer  to  the  first  offer  in  the 
printed  offers,  Judge  STRONG? 

Mr.  Commissioner  STRONG.    The  first  offer. 

The  PRESIDENT.  The  motion  of  Judge  STRONG  is  that  the  evi 
dence  specified  in  the  first  offer  of  the  objectors  to  certificate  No.  1 
be  now  received,  subject  to  its  legal  effect. 

Mr.  Commissioner  EDMUNDS.  And  any  evidence  on  the  same 
point. 

Mr.  Commissioner  STRONG.  Certainly,  any  evidence  on  the  same 
point  that  may  be  offered  on  the  other  side  upon  the  same  condition. 

The  PRESIDENT.     The  question  is  on  the  motion  in  that  form. 

The  motion  was  agreed  to. 

Mr.  EVARTS.  We  may  be  in  a  little  difficulty,  Mr.  President  and 
gentlemen.  Our  witnesses  attended  all  day  yesterday,  and  we  were 
prepared  to  go  on  without  a  moment's  delay.  I  have  now  inquired 
whether  they  are  ready,  and  I  find  that  Mr.  Tynor,  the  Postmaster- 
General,  is  not  here,  lie  was  in  attendance  last  evening  and  all  day 
yesterday.  I  have  no  reason  to  doubt,  however,  that  he  is  quite 
accessible. 

Mr.  MERRICK.  I  have  not  yet  learned  whether  an  answer  has 
been  returned  to  our  subpoena. 

Mr.  Commissioner  MORTON.  The  Postmaster-General  was  here, 
and  told  me  he  could  not  remain  a  long  time,  but  would  come  on  being 
telegraphed  for. 

Mr.  EVARTS.  I  have  no  doubt  he  is  quite  accessible ;  only  we 
wished  to  be  excused  for  any  apparent  remissness. 

The  PRESIDENT.  Of  course  we  understand  that  there  is  a  neces 
sary  delay.  The  question  is  addressed  to  counsel  for  objectors  to 
certificate  No.  1.  Are  you  ready  to  offer  the  proof  specified  in  the 
first  article  of  your  offer  f 

Mr.  MERRICK.  I  presume  we  are.  We  issued  yesterday  a  sub 
poena  dnces  teoim,  and  I  suppose  the  return  is  made.  It  ought  to  be. 

The  PRESIDENT.  Ascertain  that  fact,  and  report  without  delay, 
if  you  please. 

Mr.  Commissioner  MILLER,  (to  Mr.  MERRICK.)  You  asked  for  cer 
tain  papers,  which  were  ordered  to  be  furnished  you. 

Mr.  MERRICK.  You  ordered  the  papers  to  be  furnished,  and  I  pre 
sume  the  papers  have  been  sent  here ;  but  I  do  not  know.  A  request 
had  been  previously  made,  by  one  of  the  objectors,  of  the  Department 
to  give  certified  copies  of  those  public  records  to  be  used  in  this  in 
vestigation,  in  the  hope  that  having  it  on  hand  any  delay  might  be 
avoided ;  but  the  Department  refused  to  give  the  papers  until  re 
quired  by  a  subpcena. 

Mr.  Commissioner  TIIURMAN.  Did  you  not  issue  a  subpoena  yes 
terday  ? 

Mr.  MERRICK.  There  was  an  order.  We  asked  for  the  subpoena, 
and  the  court  gave  an  order  that  the  papers  should  be  furnished. 

Mr.  Commissioner  THURMAN.     Was  that  served  yesterday  ? 

Mr.  MERRICK.  That  I  suppose  was  served,  but  the  Secretary  not 
being  in  attendance,  lam  unable  to  state. 

The  PRESIDENT.    The  Secretary  will  be  sent  for. 

Mr.  Commissioner  MORTON.  Postmaster-General  Tyner  was  here 
last  evening  with  the  papers. 

The  PRESIDENT.  I  have  sent  for  the  Secretary,  and  the  minute 
he  comes  in  we  shall  have  the  information. 

Mr.  MERRICK.  The  papers  were  placed,  by  the  permission  of  the 
court,  in  the  hands  of  the  proper  officer  of  this  tribunal  to  be  served 
on  the  Postmaster- General ;  but  whether  they  have  been  served  or 
not  I  do  not  know. 

Mr.  Commissioner  MILLER.  Who  was  the  proper  officer  to  serve 
the  papers  ? 

Mr.  MERRICK.    I  presume  the  Marshal. 

Mr.  Commissioner  MILLER.  Mr.  Reardon  is  here,  and  he  can  state 
whether  he  has  served  it  or  not.  [A  pause.]  The  deputy  marshal 
tells  me  he  served  the  process  on  the  Postmaster-General  last  even 
ing  iu  this  room. 

Mr.  MERRICK.  .  It  has  been  served,  then  ? 

Mr.  EVARTS.  He  would  have  been  in  attendance  at  the  opening 
of  this  Commission  this  morning  if  it  had  not  been  arranged  for  the 
business  to  proceed  otherwise. 

Mr.  Commissioner  MILLER.  I  understand  there  was  no  subpoena 
daces  tecum  asked  for  or  served.  These  gentlemen  asked  for  an  order 
for  the  production  of  certain  papers  which  I  saw  the  President  sign. 
I  think  myself  they  ought  to  have  seen  by  this  time  whether  that 
paper  was  produced. 


166 


ELECTORAL  COMMISSION. 


Mr.  EVARTS.  Whenever  the  Postmaster-General  comes,  I  think 
he  will  have  with  him  all  the  papers  that  arc  desired  on  either  side. 

Mr.  Commissioner  THURMAN.  I  move  that  the  Commission  take 
a  recess  until  one  o'clock.  The  papers  ought  to  be  here  by  that  time. 

Mr.  Commissioner  MILLER.  1  think  half  an  hour  would  be  long 
enough. 

Mr.  Commissioner  GARFIELD.  I  think  the  Postmaster-General 
lias  been  here  this  morning  ;  and  I  suppose  in  twenty  or  thirty  min 
utes  we  can  have  the  papers.  He  may  be  here  sooner  than  that.  I 
move  to  amend  by  making  the  time  half  past  twelve. 

Mr.  Commissioner  THURMAN.  That  is  only  twenty  minutes.  I 
will  say  till  quarter  of  one,  then. 

Mr.  Commissioner  GARFIELD.    I  will  accept  that. 

The  PRESIDENT.  It  is  moved  that  the  Commission  take  a  recess 
until  a  quarter  to  one  o'clock. 

The  motion  was  agreed  to  at  twelve  o'clock  and  ten  minutes  p.  m. 

The  Commission  re-assembled  at  twelve  o'clock  and  forty-five  min 
utes  p.  m. 

The  PRESIDENT.  The  Commission  is  ready  to  receive  the  evi 
dence  specified  in  the  first  offer,  subject  to  all  questions  as  to  its  legal 
effect. 

Mr.  MERRICK.  Mr.  President,  we  offer  a  duly  certified  copy  of  the 
commission  of  John  W.  Watts  as  postmaster  at  La  Fayette,  in  the 
county  of  Yam  Hill,  State  of  Oregon,  issued  on  the  7th  of  February, 
1873. 

Mr.  EVARTS.  This  paper,  if  the  court  please,  is  satisfactory  enough 
as  being  a  copy,  but  it  does  not  prove  itself  as  a  copy.  The  Post 
master-General  is  in  attendance  here  with  these  papers  under  a  sub 
poena  diices  tectim,  and  he  can  produce  them  as  a  witness  and  also  give 
evidence  concerning  the  facts,  if  necessary. 

The  PRESIDENT.    Are  they  not  certified  ? 

Mr.  EVARTS.  They  are  not  certified  as  copies.  Still  I  do  not  care. 
They  are  no  doubt  copies,  excepting  that  they  should  come  as  a  part  of 
the  testimony  of  the  Postmaster-General,  Mr.  Tyner,  it  seems  to  me. 

Mr.  MERRICK.  Do  counsel  on  the  other  side  object  to  the  evi 
dence  ? 

Mr.  EVARTS.    I  have  stated  exactly  my  position. 

The  PRESIDENT.  I  understand  the  paper  is  not  objected  to.  It 
will  be  therefore  received. 

Mr.  Commissioner  THURMAN.    Are  not  these  copies  exemplified  ? 

Mr.  EVARTS.  They  are  uot  exemplified.  As  I  have  said  they  do 
not  prove  themselves. 

The  PRESIDENT.  The  question  is,  Mr.  Evarts,  whether  you  ob 
ject  to  the  papers. 

Mr.  EVARIS.  I  submit  this  to  the  Commission,  that  the  Postmas 
ter-General  should  produce  them  here  under  his  subposna ;  and  he, 
therefore,  should  be  the  witness  to  produce  them.  I  shall  make  no 
objection,  however. 

Mr.  MERRICK.    We  did  not  issue  a  subpoena  for  him. 

The  PRESIDENT.  The  paper  will  be  received.  The  objection 
goes  to  its  effect,  I  understand. 

Mr.  Commissioner  EDMUNDS.  I  understood  Mr.  Evarts  to  make 
the  point  that  the  paper  in  its  present  condition  is  incompetent  to 
prove  the  fact  stated  in  it,  but  ia  willing  that  it  should  come  in  sub 
ject  to  that  question. 

The  PRESIDENT.    Subject  to  that  question. 

Mr.  MERRICK.  I  take  it  the  objection  stated  by  Mr.  Commissioner 
EDMUNDS  is  somewhat  different  from  the  character  of  the  objections 
as  stated  by  the  President.  Mr.  Commissioner  EDMUNDS  understands 
the  objection  to  be  to  matter  of  form.  The  President  understood 
the  objection  to  be  waived  as  to  form  and  go  to  the  substance  of  the 
paper,  the  effect  of  it.  I  used  inaccurate  language  in  saying  that  we 
had  issued  a  subpoena  duccs  tccxm.  We  applied  for  duly  certified  copies 
of  these  papers,and  the  Commission  ordered  the  duly  certified  copies 
to  be  furnished,  and  these  have  been  placed  in  my  hands. 

The  PRESIDENT.     Under  the  order  ? 

Mr.  MERRICK.  Under  and  in  response  to  the  order  of  the  Com 
mission. 

Mr.  EVARTS.  I  have  no  doubt  of  their  authenticity.  All  I  sub 
mitted  was  that  their  proper  production  as  proof  should  be  through 
the  witness  who  brought  them  ?.s  copies,  they  uot  proving  themselves. 

Mr.  MERRICK.  If  that  is  insisted  upon  as  an  objection,  and  the 
authentication  is  not  sufficiently  formal  under  the  statutes  of  the 
United  States  to  justify  their  introduction  into  the  case  as  testimony, 
we  shall  have  to  ask  the  indulgence  of  the  Commission  to  have  them 
authenticated  according  to  law,  that  there  may  be  a  proper  return  to 
the  order  which  you  have  passed  in  the  premises. 

The  PRESIDENT.  I  shall  rule,  in  the  absence  of  any  instructions, 
that  the  papers  in  their  present  form  are  not  sufficieut'if  objected  to. 

Mr.  EVARTS.  The  Postmaster-General  is  in  attendance,  and  is 
ready  to  verify  them  as  copies  from  his  office. 

The  PRESIDENT.  Pass  them  to  him,  then,  and  have  them  veri 
fied. 

Mr.  EVARTS.  There  is  not  the  least  occasion  for  delay  or  formal 
ity.  Mr.  Tyner  is  hero. 

The  PRESIDENT,  (to  Mr.  Merrick.)  I  think  you  have  a  right  to 
certified  copies,  and  it  is  for  you  to  pass  them  to'the  Postmaster-Gen 
eral  and  have  them  certified  ;  not  for  the  Commission. 

Mr.  Commissioner  MILLER.  I  concur  with  the  Presiding  Officer. 
I  do  not  think  you  are  compelled  to  introduce  Mr.  Tyuer  as  a  witness 


in  order  to  get  certified  copies  of  papers  from  his  office.  If  he  has 
not  certified  them  you  can  have  them  certified.  I  am  sorry  for  the 
delay. 

Mr.  MERRICK.  I  so  understand  my  rights,  and  with  that  under 
standing  am  endeavoring  to  discharge  my  duty. 

The  PRESIDENT.  The  Postmaster-General  can  verify  them  in 
five  minutes,  I  suppose. 

Mr.  EVARTS.  If  the  Commission  passes  on  the  question  that  the 
Postmaster-General  is  not  the  proper  party  as  a  witness  to  produce 
these  papers,  then  I  will  waive  the  certificate.  I  do  uot  wish  to 
cause  delay  or  trouble.  My  only  point  is  that  the  Postmaster-Gen 
eral  must  have  the  proper  opportunity. 

The  PRESIDENT.  I  am  of  the  opinion,  Mr.  Evarts,  that  the 
other  side  have  a  right  to  a  certified  copy  from  the  Postmaster-Gen 
eral  under  the  order  already  issued,  and  Judge  MILLER  concurs  with 
me. 

Mr.  EVARTS.  I  am  willing  that  it  should  bo  treated  as  if  it  were 
a  certified  copy. 

The  PRESIDENT.  Very  well,  then,  it  will  be  received.  Let  the 
next  paper  be  offered. 

Mr.  MERRICK.  The  next  paper  that  we  offer  in  evidence  is  the 
commission  of  Henry  W.  Hill  as  postmaster  at  La  Fayette,  in  the  county 
of  Yam  Hill,  State  of  Oregon,  issued  on  the  3d  of  January  in  the  year 
1877,  reciting  that — 

Whereas  on  the  23d  day  of  November,  1876,  Honry  W.  Hill  was  appointed  post 
master  at  La  Fayette,  county  of  Yam  Hill,  State  of  Oregon;  anil  whereas  he  di;l, 
on  the  llth  day  of  December,  1876,  execute  a  bond  and  has  taken  the  oath  of  office, 
as  required  by  law,  know  ye,  &c. 

Mr.  Commissioner  HOAR.  Is  that  one  of  the  offices  to  which  the 
appointment  is  made  by  the  President  or  by  the  Postmaster-Genenil  1 

Mr.  EVARTS.  It  is  a  Postmaster-General's  appointment.  It  is  not 
necessary  for  me  to  object  to  this  last  paper  as  not  being  material,  for 
all  these  objections  are  reserved. 

The  PRESIDENT.     Under  the  words  "  the  effect." 

Mr.  Commissioner  THURMAN.  Have  you  any  evidence  that  Hill 
was  the  successor  of  Watts  ?  Nothing  appears  on  this  paper  to  show 
that  ho  was  the  successor  of  Watts. 

Mr.  MERRICK.  Nothing  appears  on  the  paper  to  show  that  ho 
was  the  successor  of  Watts,  but  taking  the  two  papers  together,  if 
they  are  left  to  stand  alone  unexplained  by  the  other  side,  we  re 
spectfully  submit  that  it  is  sufficiently  shown  that  Hill  was  Watts's 
successor. 

The  PRESIDENT.     Have  you  any  further  papers  ? 

Mr.  MERRICK.    We  have  no  further  papers.    We  rest  now. 

The  PRESIDENT.     Is  there  anything  in  reply  ? 

Mr.  EVARTS.     We  will  call  the  Postmaster-General. 

Hon.  JAMES  N.  TYXKR  sworn  and  examined. 
By  Mr.  EVAUTS  : 

Question.  You  are  Postmaster-General  of  the  United  States  f 

Answer.  I  am. 

Q.  And  have  been  since  what  period  ? 

A.  About  the  l'2th  or  13th  of  July  last. 

Q.  And  in  the  discharge  of  the  duties  of  that  office  during  that 
period  ? 

A.  Yes,  sir. 

Q.  Do  you  know  of  Mr.  Watts  having  held  an  office  as  postmaster 
in  Oregon  at  Yam  Hill  ? 

A.  No,  sir ;  John  W.  Watts  held  the  office  of  postmaster  at  La  Fay 
ette,  in  Yam  Hill  County,  Oregon. 

Q.  Who  has  the  appointment  of  that  class  of  offices  I 

A.  It  is  a  fourth-class  office,  the  appointments  to  which  are  vested, 
in  the  Postmaster-General.  It  is  not  a  presidential  office. 

Q.  Did  Mr.  Watts  resign  that  office  ? 

A.  He  did. 

Q.  At  what  date  ? 

Mr.  MERRICK.     Wait  a  moment.     Let  the  resignation  be  produced. 

Mr.  EVARTS.     I  ask  what  is  the  date  of  the  resignation  V 

Mr.  GEEEN.  We  submit  that  the  best  evidence  is  the  written  res 
ignation,  if  any  exists. 

The  PRESIDENT.    Do  you  object  to  the  question  ? 

Mr.  MERRICK  and  Mr.  GREEN.     Yes,  sir. 

The  PRESIDENT.  I  will  submit  to  the  Commission  the  question 
whether  the  objection  shall  be  sustained. 

Mr.  Commissioner  GARFIELD.     What  is  the  objection  ? 

Mr.  Commissioner  ABBOTT.  I  understand  the  counsel  merely  de 
sire  to  know  if  there  was  a  written  resignation,  which  I  suppose  they 
have  a  right  to,  upon  the  question  proposed  by  Mr.  Evarts. 

The  WITNESS.    No  such  question  has  been  put  to  me. 

Mr.  EVARTS.     I  asked  !it  what  time  the  resignation  took  place. 

Mr.  Commissioner  ABBOTT.  I  understand,  then,  that  counsel  on 
the  other  side  interpose  and  ask  if  that  resignation  was  in  writing; 
because  if  it  was  the  writing  would  be  the  best  evidence. 

The  PRESIDENT.  No;  they  objected  generally,  as  I  understand. 
But  that  question  may  be  put  preliminarily  whether  it  was  in  writing. 

Mr.  EVARTS,  (to  the  witness.)  Did  you  receive  any  resignation 
from  Mr.  Watts  ? 

Mr.  MERRICK.    Was  it  in  writing  ? 

Mr.  EVARTS.     I  first  ask  whether  ho  received  any. 

The  WITNESS.    I  did. 


ELECTORAL  COMMISSION. 


167 


Q.  (By  Mr.  EVARTS.)    In  what  form  ? 

A.  I5y  telegraph  and  afterward  in  writing. 

Q.  Have  you  the  telegram  I 

A.  I  have. 

Q.  Produce  it. 

A.  [Producing  telegram.]    This  is  it. 

Mr.  EVARTS.     I  offer  it. 

The  PRESIDENT.    Read  it. 

Mr.  EVARTS.    It  reads : 

PORTLAND,  OREGON,  November  13, 1876. 

Received  at  Post-Office  Department,  "Washington 

Mr.  GREEN.  We  object  to  the  introduction  of  that  paper.  We 
•will  let  it  go,  however,  for  what  it  is  worth. 

Mr.  Commissioner  EDMUNDS.  Let  us  find  out  exactly  what  the 
objection  is. 

The  PRESIDENT.    On  what  ground  do  you  object  ? 

Mr.  GREEN.  There  is  no  authentication  of  the  signature  ;  there 
is  no  proof  that  Watts  sent  the  paper.  It  is  a  mere  telegraphic  mem 
orandum  received  by  the  Postmaster- General  at  this  end  of  the  line. 

Mr.  EVARTS.  W«  certainly  should  have  to  begin  with  this,  I  sup 
pose. 

The  WITNESS.  I  also  stated  that  there  was  a  resignation  in  writ 
ing.  I  will  submit  that  also. 

Mr.  Commissioner  EDMUNDS.     One  thing  at  a  time. 

Mr.  EVARTS.     I  propose  to  read  this  telegram,  if  I  am  allowed. 

The  PRESIDENT.  I  must  submit  the  question  to  the  Commission. 
An  objection  is  made  to  the  admissibility  of  the  telegram,  and  the 
question  is  whether  the  objection  shall  be  sustained. 

Mr.  Commissioner  HOAR.  I  do  not  understand  that  we  are  pass 
ing  finally  on  the  question  of  its  weight,  but  whether  it  shall  be  ad 
mitted  de  benc. 

The  PRESIDENT.    Upon  its  admissibility  at  present. 

Mr.  Commissioner  THURMAN.  I  understand  the  offer  of  proof  is 
that  Ihe  Postmaster-General  received  a  telegram  on  such  a  day.  That 
is  one  step.  I  do  not  see  why  it  is  not  admissible.  Whether  the 
whole  chain  can  be  established  is  another  thing. 

The  PRESIDENT.    The  question  is  on  sustaining  the  objection. 

The  question  being  put,  the  objection  was  overruled. 

The  PRESIDENT.     Read  the  telegram. 

Mr.  EVARTS.     It  is— 

PORTLAND,  OREGON,  November  13, 1876. 
To  J.  N.  TYNER, 

Postmaster-General,  Washington,  D,  C.: 

I  hereby  resign  as  post  master  at  LaFayette,  Tarn  Hill  County,  Oregon.  Answer 
by  telegraph. 

JOHN  W.  WATTS, 
Postmrster  LaFayette  Oregon. 

Q.  (By  Mr.  EVARTS.)  Are  the  stamps  as  to  the  Department  receipt 
of  the  telegram,  the  stamps  of  the  Department  ? 

A.  No,  sir ;  that  is  the  stamp  of  the  telegraph  company,  whose  of 
fice  is  located  in  the  building. 

Q.  Do  you  know  when  this  was  received  ? 

A.  It  was  received  on  the  morning  of  the  14th  of  November. 

Q.  At  what  hour,  do  you  know  ? 

A.  I  should  think  about  ten  o'clock. 

Q.  Did  you  make  any  answer  to  that  telegram  ? 

A.  I  did. 

Q.  Have  you  a  copy  of  the  telegram  that  you  sent  ? 

A.  I  made  answer  by  telegram,  of  which  this  is  a  copy,  [producing 
telegram. ] 

The  PRESIDENT.    Do  you  offer  that  ? 

Mr.  EVARTS.    I  do. 

The  PRESIDENT.    Read  it  if  there  be  no  objection. 

Mr.  EVARTS.    It  is 

POST-OFFICE  DEPARTMENT, 
OFFICE  OF  POSTMASTER-GENERAL, 
Washington,  D.  C.,  November  14,  1376. 
To  JOHN  "W.  "WATTS, 

Portland,  Oregon : 

Tonr  resigna+ion  as  postmaster  at  La  Fayette,  Yam  Hill  County,  Oregon,  bear 
ing  date  CHI  November  13,  1876,  is  hereby  accepted. 

JAMES  N.  TYNER, 

Postmaster-  General. 

Charge  Post-Office  Department. 

(To  the  witness.)  Did  you  send  that  telegram  to  him  on  that 
day  ? 

A.  I  did;  by  the  Western  Union  Telegraph  Company. 

Q.  (By  Mr.  EVARTS.)  When  did  you  receive  this  letter?  [Handing 
a  letter  to  the  witness.] 

A.  This  letter  was  received  by  the  Post-Office  Department  on  the 
9th  day  of  December,  through  J.  B.  Underwood,  special  agent  of  the 
Post-Office  Department. 

Mr.  EVARTS.    It  is  addressed 

To  Hon.  J.  B.  UNDEKWOOD,  Special  Agent  of  the  Post-Office  Department. 

Mr.  MERRICK.  The  signature  of  that  letter  is  not  identified.  We 
object  to  it  on  that  ground. 

The  PRESIDENT.     On  what  ground  ? 

Mr.    MERRICK.    The  signature  has  not  been  proved. 

Mr.  EVARTS.  I  propose  to  show  that  this  paper  was  received,  and 
is  on  file  at  the  Post-Office  Department. 

Mr.  Commissioner  THURMAN.    What  is  the  date  of  it  I 


Mr.  EVARTS.    November  12,  1876 

The  PRESIDENT.    The  Commission  have  heard  the  objection  to 
the  iidminsibility  of  the  paper.     Shall  the  objection  be  sustained? 
The  question  bring  put,  the  objection  was  overruled. 
The  PRESIDENT.    Read. 
Mr.  EVARTS.     It  is: 

To  Hon.  J.  B.  UNDERWOOD, 

Special  Agent  of  the  Post-Office  Department: 

DEAR  Sill:  I  hereby  tender  my  resignation  as  postmaster  at  La  Fayette,  in  Yam 
Hill  County,  and  State  of  Oregon,  and  ask  that  my  resignation  be  immediately  ac 
cepted. 

J.  B.  "WATTS, 

Postmaster,  La  Fayette,  Oregon, 
NOVEMBER  12,  1876. 

(To  the  witness.)  Who  is  J.  B.  Underwood,  and  what  was  his  rela 
tion  to  the  Post-Office  Department  ? 

A.  lie  was  a  special  agent  of  the  Post-Office  Department,  with 
official  and  personal  residence  in  Oregon  at  that  time. 

Q.  (By  Mr.  EVARTS.)  How  did  this  paper  come  to  the  Post-Office 
Department  ? 

A.  In  due  course  of  mail,  transmitted  by  J.  B.  Underwood,  special 
agent  of  the  Post-Office  Department. 

Q.  With  any  communication  from  him  ? 

A.  Yes,  sir.  A  communication  which  referred  to  another  matter, 
however. 

Q.  Please  produce  it. 

A.  This  is  it.     [Producing  a  letter.] 

Q.  Upon  receiving  the  telegraphic  resignation  and  accepting  it  by 
telegram,  did  you  make  any  communication  on  the  subject  to  Under 
wood? 

A.  I  did. 

Q.  By  telegram? 

A.  By  telegram. 

Q.  Have  you  that  telegram  ? 

A.  Yes,  sir.     [Producing  a  telegram.]     This  is  it. 

The  PRESIDENT.    Let  it  bo  read,  if  there  is  no  objection. 

Mr.  EVARTS.    It  is: 

POST-OFFICE  DEPARTMENT, 
OFFICE  OF  THE  POSTMASTER-GENERAL, 

Wanhington,  D.  O.,  November  14,  1876. 
To  J.  B.  UNDERWOOD, 

Special  Agent  Post-Office  Department,  Portland,  Oregon  : 

J.  "W.  Watts,  postmaster  at  La  Fayette,  Yam  Hill  County,  Oregon,  has  resigned. 
You  will  take  charge  of  said  office  and  continue  in  charge  thereof  until  a  successor 
is  appointed.  Acknowledge  receipt  of  this  telegram. 

JAMES  N.  TYNER, 

Postmaster-General. 

Charge  Post-Office  Department. 

[To  the  witness.]    Did  yon  receive  an  answer  by  telegram  ? 
A.  I  did.    This  is  it.    [Producing  a  telegram.] 
The  PRESIDENT.    Read,  if  not  objected  to. 
Mr.  EVARET.    It  is : 

PORTLAND,  OREGON,  November  14, 1876. 
To  JAMES  N,  TYNEK, 

Postmaster  General,  Washington,  D.  C. : 
Your  telegram  received.    Will  take  charge  of  office  this  evening. 

J.  B.  UNDERWOOD, 

Special  Agent." 

Q.  (By  Mr,  EVARTS.)  Subsequently  did  you  receive  any  other  com 
munication? 

A.  I  did  in  writing,  by  mail. 
Q.  This  is  the  first  ?    [Presenting  a  letter.] 
A.  That  is  the  first. 

The  PRESIDENT.    Read,  if  not  objected  to. 
Mr.  EVARTS.    It  is: 

EUGENE,  OREGON,  November  24, 1876. 

SIR  :  In  accordance  with  your  instructions  of  tho  14th  instant,  I  proceed  at  once 
to  take  charge  of  the  post-office  at  La  Fayetto,  in  Yam  Hill  County,  Oregon,  vice 
J.  W.  Watts,  resigned.  I  took  a  full  inveiitory  of  all  property,  giving  receipts  as 
required  by  law,  and  moved  the  office  into  another  building  at  once,  and  got  things 
running  in  good  order  tho  same  day.  I  am  now  conducting  businessof  the  office  in 
my  name  as  special  agent  and  a'cting  postmaster,  awaiting  tho  appointment  of 
Henry  W.  Hill,  who  is  now  acting  as  my  assistant  under  my  appointment,  it  being 
impossible  for  me  to  give  my  whole  attention  to  the  special  duties  of  tho  office,  as 
just  at  this  time  I  am  crowded  with  other  duties  pertaining  to  the  business  of  the 
Department.  I  inclose  the  oath  of  my  assistant. 

I  have  the  honer  to  be,  very  respectfully,  &c,    j   ^  UNI)ERWoOD. 

Special  Agent  Post-Office  Department. 
Hon.  J.  N.  TYNER. 

Postmaster-General,  Washington,  D.  G. 

Q.  (To  tho  witness.)  Did  you  receive  that  telegram  [handing  a  tele 
gram]  and  when? 

A:  I  received  that  telegram  on  the  22d  day  of  November,  18/b. 
Q.  State  when  tho  letter  which  I  have  just  read  was  received  ? 
A.  It  was  received  at  the  Post-Office  Department,  December  9, 1876. 
Mr.  EVARTS.    The  telegram  which  is  identified  is— 

EUGENE  CITY,  OREGON,  November  22, 1876. 
To  J.  W.  MARSHALL, 

First- Assistant  Postmaster,  Washington,  D.  C.: 
Appoint  Henry  W.  Hill  postmaster,  LaFayette,  Oregon  TJjfDERWOOI) 

Special  Agent,  Post-Office  Department. 

To  the  witness.    When  did  you  say  that  was  received  ? 
A.  On  the  22d  day  of  November,  1876. 


1G8 


ELECTORAL  COMMISSION. 


Q.  Did  yon  have  any  further  communications  anterior  to  the  issu 
ing  of  this  commission  to  Mr.  Hill  ? 

A.  Not  any ;  on  that  recommendation  Mr.  Hill  was  appointed. 

Q.  You  made  the  application  at  what  date? 

A.  Henry  W.  Hill  was  designated  for  appointment  as  postmaster 
at  La  Fayetto,  Oregon,  on  the  23d  day  of  November,  1876. 

Q.  In  what  way  was  he  designated  f 

A.  He  was  designated  for  appointment  in  the  usual  form.  That  is 
the  original,  [producing  a  paper.  1 

Q.  This  is  the  form  I 

A.  It  is. 

Q.  This  is  Mr.  Marshall's  signature,  is  it  ? 

A.    It  is. 

Mr.  EVARTS.    I  wiU  read  it : 

November  21, 1876,  La  Fayotte  office,  Yam  Hill  Connt.y,  Oregon  State.— John  "W. 
Watts  postmaster,  appointed  February  7,  1873 :  salary,  $270;  postal  bond,  82,000  ; 
money-order  bond,  $3,000.  Appoint  Ilonry  W.  Hill  in  place  of  J.  "W.  Watts,  re 
signed.  J.  W.  Marshall,  First-Assistant  Postmaster-General. 

To  the  witness.     That  is  the  ordinary  form  ? 

A.  It  is  the  ordinary  form. 

Q.  And  after  that  was  any  action  taken  by  you  otherwise  than 
signing  the  commission  f 

A.  Yes,  sir.  A  letter  designating  the  appointment  was  forwarded 
to  the  appointee  accompanied  by  a  blank  bond,  which  bond  on  being 
filled  by  the  appointee  is  returned  to  the  Post-Office  Department,  after 
which  and  after  its  approval  the  commission  issues. 

Q.  At  what  time  did  any  such  letter  issue  ? 

A.  On  the  23d  day  of  November,  1876.  This  is  the  bond  itself, 
[producing  a  paper.] 

Q.  Was  this  bond  forwarded  ? 

A.  That  bond  was  forwarded  in  blank,  filled  up  by  Hill,  and  re 
turned  to  the  Department. 

Q.  And  then  when  was  the  indorsement  completed  ? 

A.  The  bond  was  executed  on  the  llth  day  of  December,  1876,  as 
shown  by  the  certificate  of  the  officer.  The  commission  issued  on  the 
3d  day  of  January,  1877,  and  was  transmitted  to  Henry  W.  Hill  by 
mail  on  the  4th  day  of  January,  1877. 

Q.  When  was  this  bond  in  blank  forwarded  with  the  designation 
you  have  spoken  of  f 

A.  On  the  23d  day  of  November,  1876. 

Q.  It  was  sent  from  your  Department  on  the  23d  day  of  November 
with  the  designation  and  the  bond  to  be  filled  up  ? 

A.  Yes,  sir. 

Q.  Are  there  any  other  papers  on  the  subject  ? 

A.  None. 

Mr.  EVARTS.    We  are  through  with  this  witness. 

The  PRESIDENT.    The  other  side  can  cross-examine. 

Mr.  GREEN.    We  have  no  questions  to  ask. 

Mr.  Commissioner  THURMAN.  I  wish  to  ask  the  Postmaster-Gen 
eral  a  question. 

(To  the  witness:)  Is  there  any  law  or  regulation  of  the  Depart 
ment  which  requires  the  accounts  of  postmasters  to  be  settled  up  be 
fore  their  resignation  takes  effect  ? 

A.  No,  sir. 

By  Mr.  Commissioner  THURMAN. 
There  is  nothing  of  that  kind  ? 
A.  Nothing  that  I  am  aware  of. 
Mr.  EVARTS.    I  will  call  Mr.  Watts. 

JOHN  W.  WATTS  sworn  and  examined. 
By  Mr.  EVARTS  : 

Question.  Were  you  the  postmaster  at  La  Fayette,  Yam  Hill 
County,  Oregon  ? 

Answer.  I  was. 

Q.  Did  you  resign  that  office  ? 

A.  I  did. 

Q.  When! 

A.  On  the  13th  day  of  November,  1876. 

Q.  By  telegram  ? 

A.  Yes,  sir. 

Q.  Did  you  receive  any  acceptance  of  your  resignation  ? 

A.  I  did. 

Q.  When? 

A.  On  the  14th  day  of  November. 

Q.  Was  that  by  telegram  ? 

A.  It  was. 

Q.  Do  you  know  J.  B.  Underwood,  special  agent  of  the  Post-Office 
Department ;  and  did  you  know  him  in  November  last  ? 

A.  I  did. 

Q.  What  was  done  in  reference  to  your  office  after  your  resignation 
by  you  ? 

A.  On  the  14th  of  November  Mr.  Underwood  showed  me  a  tele 
gram  that  he  said  he  had  received  from  the  Postmaster-General, 
directing  him  to  take  charge  of  the  office,  and  I  immediately  deliv 
ered  it  to  him,  making  my  settlement  with  him,  and  turned  every 
thing  over  to  him. 

Q.  Did  you  have  a  settlement  with  him  ? 

A.  Yes,  sir  ;  I  settled  the  accounts  of  my  office  with  him. 


Q.  Was  the  post-office  kept  by  you,  in  what  building,  or  in  -what 
relation  to  nny  other  business  ? 

A.  It  was  in  my  drug-store. 

Q.  Did  it  continue  in  that  store? 

A.  It  did  not. 

Q.  Where  was  it  removed  to,  and  when  ? 

A.  It  was  removed  about  a  block  away  from  my  store  to  the  drug 
store  of  Littlefield  &  Hill  on  the  next  morning. 

Q.  That  was  on  the  14th  ? 

A.  Yes.  It  was  late  in  the  afternoon  when  I  arrived  there  by  rail, 
and  Mr.  Underwood  did  not  move  it  away  that  night.  It  was  late  in 
the  evening,  perhaps  eight  o'clock.  It  was  locked  up  there,  and  the 
next  morning  it  was  taken  over  to  the  drug-store  of  Littlefield  & 
Hill. 

Q.  Did  you  act  as  postmaster  at  all  after  the  14th  of  November, 
1876? 

A.  I  did  not. 

Q.  Was  the  post-office  kept  open  there  after  that  ? 

A.  It  was  not. 

Q.  Not  at  your  place,  but  in  the  town  ? 

A.  It  was  in  the  town  ;  not  at  my  place. 

Q.  Who  acted  as  postmaster  in  charge  of  the  duties  there  ? 

A.  H.  W.  Hill,  as  I  understood,  was  appointed  by  Mr.  Underwood 
when  he  arrived.  He  remained  there  two  or  three  days  opening  the 
new  office,  aud  he  remained  there  perhaps  the  third  day. 

Q.  And  thereafter  the  duties  of  the  office  were  performed  not  at 
all  by  you  but  by  another  person  and  at  another  place  ? 

A.  It  was.    I  performed  no  duties  as  postmaster  after  that  time. 

Cross-examined  by  Mr.  GREEN: 

Q.  Were  you  a  candidate  for  the  office  of  elector  of  President  of  the 
United  States,  and  Vice-President  ? 

A.  I  was. 

Mr.  EVARTS.  I  object  to  that  inquiry,  unless  it  is  for  the  mere 
purpose  of  identification. 

Mr.  GREEN.    That  is  all. 

Mr.  EVARTS.     I  admit  that  he  is  the  same  person. 

Q.  (By  Mr.  GREEN.)  Where  is  Eugene  in  the  State  of  Oregon? 

A.  Eugene  City  you  have  reference  to  ? 

Q.  I  speak  of  the  place. 

A.  At  the  head  of  the  Willamette  Valley. 

Q.  How  far  is  it  from  La  Fayette  ? 

A.  I  think  about  seventy-five  miles ;  perhaps  a  little  more. 

Q.  Have  you  settled  your  accounts  with  the  Post-Office  Depart 
ment  as  postmaster  at  La  Fayette  ? 

A.  It  is  not  fully  settled  in  this  way  :  There  is  a  commission  yet 
coming  to  me,  and  I  had  a  few  dollars  that  I  did  not  pay  over  to  Mr. 
Underwood.  There  was  a  commission  due  to  me  for  part  of  that 
quarter  and  there  were  a  few  dollars  kept  back  which  would  about 
balance,  as  we  supposed.  All  the  rest  I  paid  to  him  ;  every  dollar. 

Q.  Have  your  accounts  been  adjusted  by  the  auditing  officers  of 
the  Post-Office  Department  ? 

A.  Not  that  I  know  of.  I  went  to  the  Post-Office  Department  since 
I  came  here  and  inquired,  and  they  said  that  they  had  immediately 
sent  a  full  statement  tome,  but  it  had  not  reached  there  when  I  left 
there.  I  have  not  seen  it. 

Q.  When  did  you  leave  Oregon  ? 

A.  I  think  I  left  there  about  the  15th  of  December ;  I  think  it  was 
on  the  15th  that  I  left  home. 

Mr.  GREEN.  Has  the  Commission  confined  us  to  testimony  under 
the  first  offer  of  proof  ? 

Mr.  Commissioner  EDMUNDS.  We  have  not  passed  upon  the  sec 
ond  offer  yet. 

The  PRESIDENT.  It  has  not  been  passed  upon.  If  there  are  no 
further  questions,  Mr.  Watts  can  step  aside. 

Mr.  EVARTS  Mr.  Watts  could  identify  those  papers.  They  are 
in  his  own  handwriting,  some  of  them. 

The  PRESIDENT.  Unless  there  are  some  further  interrogatories, 
he  can  retire. 

J.  M.  McG.REW  sworn  and  examined. 
By  Mr.  EVARTS  : 

Question.  Does  the  settlement  of  postmasters'  accounts  come  un 
der  your  department  ? 

Answer.  It  does. 

Q.  Has  the  account  of  Mr.  Watts  as  postmaster  been  settled  by  the 
Department  ? 

A.  It  has. 

Q.  As  of  what  date  are  his  emoluments  and  salary  fixed  by  that 
settlement  ? 

A.  To  and  including  the  14th  day  of  November,  1876.  This  is  the 
last  rendered  by  him. 

Mr.  EVARTS.  I  do  not  care  to  pursue  the  details  unless  it  is  re 
quired.  The  other  side  can  cross-examine. 

Cross-examined  by  Mr.  GREEX  : 

Q.  As  the  Sixth  Auditor,  Mr.  McGrew,  have  you  charge  of  the  ac 
counts  of  this  postmaster  ? 
A.  I  have. 
Q.  When  were  his  accounts  audited  ? 


ELECTORAL  COMMISSION. 


169 


A.  They  were  audited  sometime  during  the  last  of  the  month — 
during  January. 

Q.  Fix  as  near  as  your  recollection  serves  the  date  when  they  were 
audited? 

A.  His  accounts  were  received  in  the  office  on  the  llth  day  of  De 
cember. 

Q.  And  the  action  of  the  auditing  department  took  place  some 
time  in  the  month  of  January,  1877  ? 

A.  It  is  impossible  to  give  the  exact  date,  as  we  have  30,000  ac 
counts  of  that  descriptiou  to  settle  each  quarter.  It  was  settled 
sometime  during  the  last  month. 

The  PRESIDENT.    Is  the  testimony  closed? 

Mr.  EVARTS.     I  suppose  it  is. 

The  PRESIDENT.    Anything  further  on  the  other  side  ? 

Mr.  HOADLY.    No,  sir. 

The  PRESIDENT.    The  argument  will  be  resumed. 

Mr.  EVARTS.  Mr.  President  and  gentlemen  of  the  Commission, 
in  assigning  at  the  outset  of  this  discussion  the  dividing  line  between 
the  authority  of  the  Government  of  the  United  States,  by  any  legis 
lation  that  it  might  think  adequate  and  desirable,  or  in  execution  of 
the  constitutional  power  of  counting  the  votes  without  any  legisla 
tion  on  the  subject,  the  line  that  divided  what  belonged  to  the  State 
and  what  might  be  the  subject  of  inquiry  to  the  Federal  Govern 
ment,  observing  constitutional  limits  on  the  one  side  and  the  other, 
The  counsel  for  the  objectors  with  whom  I  am  associated  laid  down 
the  proposition  that  the  ultimate  fact  under  the  laws  of  the  State  in 
completion  of  the  election  by  the  certification  of  boards  or  officers 
charged  with  the  completion  of  the  final  canvass  was  a  point  beyond 
which,  in  looking  into  the  transactions  of  the  State,  the  Federal  Gov 
ernment  could  not  go.  We  laid  down  at  the  same  time  the  further 
proposition  that  this  conclusion  of  the  State's  action  was  the  princi 
pal  fact,  that  under  the  legislation  of  Congress  was  made  the  subject 
of  any  lawful  certification,  and  that  as  that  principal  fact  could  not 
be  overreached  by  any  previous  inquiry  into  the  transaction  of  the 
State,  so  that  principal  fact  could  not  be  disparaged  or  falsified  by 
any  congressional  authority  exercised  in  certification  of  that  fact. 

The  proposition  as  we  then  laid  it  down  for  Florida  we  adhered  to 
in  the  case  of  Louisiana  ;  and  the  proposition  as  thus  laid  down  we 
adhere  to  in  the  cose  of  Oregon.  We  find  in  Oregon,  as  in  Florida 
or  Louisiana,  that  by  its  laws  there  is  some  final  ministerial  canvass, 
which,  completed,  shows  what  the  election  was ;  and  we  need  only  to 
look  into  the  laws  of  this  State,  as  of  tbe  other  States,  to  see  whether 
the  apparent  canvassing  board  was  one  that  had  such  authority  un 
der  the  laws  of  the  State. 

We  have  also  asserted  and  adhered  to  but  one  proposition  as  to  the 
powers  and  duties  of  this  Commission.  From  the  first  and  until  now 
we  have  discarded  any  notion  that  you  were  a  court  or  could  exercise 
the  powers  of  a  court  in  inquiring  into  the  actual  facts  of  an  election 
in  .the  States.  Not  so,  however,  with  the  learned  counsel  who  from 
time  to  time  in  the  different  stages  of  this  matter  have  appeared  as 
our  opponents.  The  whole  proposition  as  to  Florida,  on  their  part, 
was  based  upon  the  idea  that  you  were  a  court,  with  the  powers  in 
quo  warranto  of  a  court,  and  were  controlled  in  the  exercise  of  those 
powers  by  no  other  consideration  than  seemed  to  you  just  in  their 
exercise  and  as  any  other  court  would  be  governed  in  such  exercise. 
The  logic  of  that  argument  was  accepted  that  if  you  had  not  that 
penetrating  and  purging  power  of  a  court,  looking  for  and  producing 
the  very  right  of  the  matter  as  the  election  itself  should  disclose  it.  If 
you  had  not  that  power,  then  our  proposition  that  the  evidence  upon 
which  we  rested  as  the  result  of  the  State's  action  in  producing  elect 
ors  in  Florida  was  the  "  be-all  and  the  end-all,"  unless  some  subse 
quent  movement  in  that  State  might  have  displaced  it. 

When,  then,  we  came  to  Louisiana — which  differed  not  at  all  from 
Florida  in  the  principles  of  law  applicable  to  it  on  this  point  of  the 
State's  authority  and  the  point  of  inquiry  which  repelled  any  further 
inquisition  on  your  part — the  principles  then  avowed  were  that  the 
idea  of  your  being  a  court  with  powers  in  quo  warranto  was  wholly 
inadmissible,  wholly  inadmissible  in  the  nature  of  the  transaction, 
wholly  inadmissible  from  the  impassable  barriers  interposed  by  the 
Constitution.  Indeed,  these  propositions  which  we  had  laid  down  in 
the  Florida  case,  the  support  of  those  propositions  in  reason  and  au 
thority,  were  all  adopted  and  euforced  as  the  doctrine  of  our  oppo 
nents  in  the  Louisiana  case. 

Now  when  we  come  to  this  case,  even  with  more  force  and  earnest 
ness  and  with  a  greater  reach  and  exhaustion  of  argument  and  author 
ity,  every  proposition  that  either  in  the  Florida  or  in  the  Louisiana  case 
we  contended  for,  upon  this  point,  is  avowed,  is  defended,  is  insisted 
upon  by  our  opponents.  Nor  will  it  do  for  our  learned  friends  to  put 
their  acceptance  of  these  propositions  upon  the  mere  concession  that 
this  Commission  has  so  decided  and  that  further  debate  is  inappro 
priate  and  unwarrantable.  They  have  themselves  in  a  prolonged  dis 
cussion  maintained  as  matter  of  law  and  upon  authority,  not  only 
the  position  that  we  took  as  to  the  action  of  a  State  bringing  an  elector 
into  the  execution  of  his  power  as  an  elector,  but,  as  I  understand  the 
accomplished  and  experienced  lawyer  who  yesterday  presented  the 
argument-of  our  opponents,  such  a  person  is,  until  quoivarranto,  until 
certiorari,  until  some  form  of  judicial  contestation  disturbs  his  posi 
tion,  not  only  a  de  facto  but  also  a  de  jure  representative  of  the  office. 

Never  having  had  a  doubt  that  before  many  weeks  had  passed  the 
general  judgment  of  the  profession  of  this  country  would  sustain 
these  positions  that  we  espoused,  and  that  have  been  sanctioned  by 


this  Commission,  I  must  yet  confess  that  I  did  not  expect  so  signal 
a«d  immediate  a  confirmation  of  that  expectation  as  the  present  and 
explicit  avowal,  espousal,  and  maintenance  of  these  positions  by  our 
learned  opponents,  and  I  welcome  this  as  a  great  and  valuable  aid  in 
furnishing  an  answer  to  the  irresponsible  and  rash  comments  that 
have  been,  in  various  relations,  and  especially  in  the  public  press, 
upon  these  controverted  points  of  law,  which  have  formed  the  mate 
rial  of  the  forensic  discussions  before  this  Commission  and  of  its  de 
cisions. 

I  understand  that  in  securing  that  unanimity  of  the  profession  so 
desirable  in  a  community  accustomed  to  look  upon  the  law  as  the 
principal  safeguard  of  the  welfare  of  the  state  this  adherence  of  our 
opponents  will  go  far  to  check  any  rising  disposition  to  further  pub 
lic  contest  on  the  subject.  You  have  decided  questions  of  constitu 
tional  law ;  you  have  decided  them  iu  the  presence  of  great  agitations* 
of  the  people,  and  you  have  decided  them  in  a  way  that  will  estab 
lish  them  firm  and  sure  principles  in  the  future,  when  agitations 
shall  take  other  complexions  and  be  pushed  in  the  interests  of  other 
parties.  By  what  you  have  done,  by  what  you  shall  do,  the  princi 
ples  of  the  Constitution  and  the  maintenance  of  the  laws  of  this  coun 
try  in  the  great  transaction  of  a  presidential  election  are  made  cer 
tain,  intelligible,  rational,  and  sound. 

Now  in  Oregon  it  is  very  plain  that  an  election  was  heldand  through 
all  its  stages  was  conducted  with  an  entire  observance  of  the  require 
ments  of  law,  with  an  entire  acceptance  on  the  part  of  the  whole  pop 
ulation  of  the  election,  and  its  result,  up  to  the  last  stage  of  it.  with 
every  step  unquestioned  in  its  integrity,  its  justice,  and  its  confor 
mity  to  law.  The  result  reached  by  the  authentic  canvass  of  the  votes, 
by  the  proper  authority,  and  in  the  proper  presence,  showed  on  each 
side  the  vote  for  electors,  according  to  law,  being  upon  general  ticket, 
that  three  on  the  one  side  ran  even  with  each  other,  three  on  the  other 
side  even  with  each  ofher,  except  by  the  casual  and  unimportant  dis 
parity  of  a  few  votes  as  between  the  several  candidates  on  the  same 
ticket.  All  that  has  disturbed  this  result  has  occurred  after  <  he  com 
pletion  of  the  election  and  its  certification  as  completed  by  the  proper 
authority,  after  the  final  canvass  aud  its  certification  by  the  officer  of 
state  charged  with  the  duty  of  canvassing  and  certifying.  That  can 
vass  remains  of  record  now  in  the  secretary  of  state's  office,  undis 
turbed,  undisputed,  unquestioned.  That  is  the  fact  upon  \vhichtho 
title  of  the  electors  for  President  ands  Vice-President  for  the  State 
of  Oregon  rests.  Thereafter  there  remains  nothing  to  be  done  on 
the  part  of  any  official  of  that  State  under  the  terms  of  the  Consti 
tution  of  the  United  States,  nothing  whatever,  and  under  the  law  of 
Congress  there  remains  but  one  act  to  be  performed,  to  wit,  the  pro 
vision  by  the  executive  of  the  State  and  the  delivery  to  the  electoral 
college  that  was  elected  of  triple  certificates  to  accompany  as  a  for 
mal  authentication  the  action  of  the  electoral  college. 

All  that  our  learned  friends  urge  as  arguments  upon  what  they 
consider  an  improvident,  an  unsound,  and  dangerous  doctrine  on  our 
part,  but  urged  only  in  anticipation  of  hearing  our  views,  is  that  1  his 
result  of  the  canvass  of  an  election  made  matter  of  record  according 
to  the  laws  of  a  State  might  be  falsified,  might  be  perverted,  might 
be  destroyed  by  the  process  of  certification,  if  wo  should  hold  th^t 
the  form  was  greater  than  the  substance.  All  those  hypothetical 
suggestions  are  now  brought  iu  play  as  actual  transactions  occurring 
in  the  State  of  Oregon ;  and  now  the  pretension  that  eertificatiou  is 
paramount  to  the  thing  certified,  not  amendable  by  the  thing  certi 
fied,  not  amendable  by  the  record  which  is  the  thing  to  be  certified, 
all  those  propositions  proceed  from  our  opponents  as  their  champions. 
They  have  not  changed  places  with  us,  for  we  never  occupied  any 
such  position.  They  have,  however,  assumed  the  propositions,  from 
time  to  time,  which'were  necessary  and  suitable  for  the  particular 
occasions  on  which  they  used  them.  It  has  been  convenient,  as  it 
seems  to  us,  for  this  representation  of  divers  sentiments  and  opinions 
at  different  times,  that  they  have  not  been  presented  by  the  saino 
counsel.  We  have  a  change  in  the  advocates  attending  a  change  in 
the  propositions. 

First,  let  us  understand  what  is  presented,  in  the  shape  of  evidence, 
that  bears  upon  the  construction  of  what  is  contained  in  the  certifi 
cates  which  are  plenary  evidence  before  you,  they  having  been  opened 
and  transmitted  by  the  President  of  the  Senate.  It  is  that  Mr.  Watts , 
holding  a  small  post-office  of  the  fourth  class  in  the  State  of  Oregon, 
appointed  years  before,  was  discharging  the  duties  of  that  office  on 
the  7th  of  November;  that  on  the  14th  of  November  ho  resigned  his 
office,  and  his  resignation  was  accepted ;  that  thereafter  tlm  Depart 
ment  had  accepted  the  charge  of  the  office  and  conducted  it  from 
that  time  forward,  and  that,  as  matter  of  fact,  the  office  itself  wa-j 
changed  from  the  place  of  business  of  Watts,  tho  postmaster  who 
resigned,  to  the  place  of  business  of  the  officer  designated  to  take 
his  place,  Mr.  Hill,  hiving  a  drug-store,  and  then  becoming  imme 
diately  assistant  postmaster  under  the  special  agent,  aud  iu  d^ue  course 
of  time  receiving  a  commission  as  postmaster  in  full.  Then  Mr. 
Watts,  whenever  you  come  to  consider,  if  you  do,  tho  question  of 
whether  he  could  be  appointed  an  elector  on  the  6th  of  December,  on 
his  refusal  to  act  upon  his  prior  appointment,  is  unmistakably  placed 
before  you  in  the  position  of  a  postmaster  who  had  resigned,  and 
who  had  received  from  tho  Post-Office  Department  the  acceptance 
of  the  trust  that  he  had  laid  aside,  which  thenceforth  was  conducted 
by  the  Department  itself  under  its  agents. 

*I  do  not  think  that  I  need  now  to  re-argue  iu  tho  least  cither  the 
question  of  ineligibility  as  justifying  proof,  or  the  question  of  whether 


170 


ELECTORAL  COMMISSION. 


an  ineligible  candidate  is  vested  with  an  office  until  by  some  deter 
mination  lie  is  excluded  from  it.  Whatever  we  said  that  received  the 
assent  of  this  Commission  in  the  former  arguments  needs  not  to  ho 
repeated.  Whatever  was  said  that  did  not  receive  the  assent  of  this 
Commissson  will  bo  of  no  service  in  that  regard  if  it  be  repeated.  J 
shall  therefore  proceed  with  the  inquiry  into  die  validity  of  the  vote 
of  the  three  electors  in  the  first  certificate  as  it  rests  upon  the  evi 
dence  in  your  possession  proceeding  from  the  State,  delivered  into 
the  hands  of  the  President  of  the  Senate,  and  opened  before  the  two 
Houses  of  Congress,  and  now  deposited  with  you  as  evidence  tor  you 
to  regard. 

What,  then,  does  this  certificate  No.  1  contain  ?  I  ask  your  attention 
to  the  parts  of  it  that  I  shall  now  designate.  I  ask  attention  to  the 
certificate  of  the  electors,  commencing  at  the  foot  of  page  3  of  the 
printed  paper.  It  is  their  certificate  of  the  votes  that  they  cast : 

UNITED  STATES  OF  AMERICA, 

/State  of  Oregon,  County  of  Marion,  ss : 

We.  W.  H.  Odell,  J.  0.  Cartwright.  ami  J.  "W.  Watts,  electors  of  President  and 
Vice-President  of  the  United  States  for  the  State  of  Oregon,  duly  elected  and  ap 
pointed  in  the  year  A.  D.  1*7(3,  pursuant  to  the  laws  of  the  United  States,  and  in 
the  manner  directed  by  the  laws  of  the  State  of  Oregon,  do  hereby  certify  that  at 
a  meeting  held  by  us  at  Salem,  the  seat  of  government  in  and  for  the  State  of  Ore 
gon,  on  Wednesday,  the  fith  day  of  December,  A.  D.  1876,  for  the  purpose  of  casting 
our  votes  lor  President  and  Vice-President  of  the  United  States — 

A  vote  was  duly  taken,  by  ballot,  for  President  of  the  United  States,  in  distinct 
ballots  for  President  or.ly,  with  the  following  result: 

The  whole  number  of  votes  cast  lor  President  of  tho  United  States  was  three  (3) 

That  the  only  person  voted  for  for  President  of  the  United  States  was  Ruther 
ford  R.  Hayes, 'ot  Ohio. 

That  for'President  of  the  United  States  Rutherford  B.  Hayes,  of  Ohio,  received 
three  (3)  votes. 

In  testimony  whereof  we  have  hereunto  set  our  hands  on  the  first  Wednesday  of 
December,  in  the  year  of  our  Lord  one  thousand  eight  hundred  and  seveuty-six. 

W.  II.  ODELL, 
,T.  C   CARTWRIGHT. 
J.  W.  WATTS. 

That  is  all  that  tho  Constitution  of  the  United  States  requires. 
The  twelfth  article  of  the  amendments  is  : 

The  elecctors  shall  meet  in  their  respective  States  and  vote  by  ballot  for  Presi 
dent  and  Vice-President ;  *  *  *  they  shall  name  in  their  ballots  the  person 
voted  for  as  President,  and  in  distinct  ballots  the  person  voted  for  a*  Vice-Presi 
dent,  and  they  shall  make  distinct  lists  of  all  persons  voted  for  as  President,  and 
of  all  persons' voted  for  as  Vice- President,  and  of  the  number  of  votes  for  each  ; 
which  lists  they  shall  sign  and  certify,  and  transmit  sealed  to  the  seat  of  Govern 
ment  of  the  United  States,  directed  to  the  President  of  the  Senate.  Tho  President 
of  the  Senate  shall,  in  the  presence  of  tho  Senate  and  House  of  Representatives, 
open  all  the  certificates,  and  the  votes  shall  then  he  counted. 

That,  then,  is  a  discharge  of  the  entire  constitutional  duty,  and  with 
the  full  certification  of  its  discharge  that  the  Constitution  requires. 
What  duty  has  been  added  by  the  act  of  Congress  to  be  performed  by 
the  college  of  electors  in  this  behalf?  In  the  one  hundred  and  thirty- 
eighth  section  of  your  revision  this  is  their  duty  : 

The  electors  shall  make  and  sign  three  certificates  of  all  tho  votes  given  by  them, 
each  of  which  certificates  shall  contain  two  distinct  lists,  one  of  the  votes  for  Presi 
dent  and  the  other  of  the  votes  for  Vice-President,  nnd  shall  annex  to  each  of  tho 
certificates  one  of  tho  lists  of  the  electors  which  shall  have  beeii  furnished  to  them 
by  direction  of  the  executive  of  the  State. 

This  paper  contains  no  such  list,  we  will  suppose ;  but  is  it  a  failure 
of  duty  on  the  part  of  the  electors  ?  Is  there  even  a  presumption 
that  they  have  received  such  paper,  and  have  omitted  to  include  it 
in  their  return?  By  no  means.  If  any  default,  any  imperfection 
in  the  duty  of  those  electors  is  to  be  charged,  it  must  be  based  on  the 
fact  that  the  executive  furnished  that  college  with  the  list  as  the  act 
of  Congress  required  the  executive  to  do,  and  that  they  have  omitted 
it;  and  we  find  as  a  part  of  tho  minutes  of  this  electoral  college  a 
statement  as  to  this  matter  of  fact,  whether  that  college  was  ever 
furnished  with  any  of  the  lists  that  the  executive  of  the  State  was 
trusted  by  the  act  of  Congress  to  furnish.  They  make  out  a  sworn 
statement  before  a  proper  magistrate,  whose  authority  to  administer 
the  oath  is  certified  by  the  secretary  of  state  as  a  proper  officer  for 
that  purpose : 

UNITED  STATES  OF  AMERICA, 

State  of  Oregon,  County  r>f  Multnomah,  ss: 

We,  J.  C.  Cartwright,  W.  H.  Odcll,  and  J.  W.  Watts,  being  each  duly  and  sev 
erally  sworn,  say  that  at  the  hour  of  twelve  o'clock  m.  of  the  (Cth)  sixth  day  of 
December,  A.  D.  1876,  we  duly  assembled  at  the  Statocapitol,  in  a  room  in  the  cap- 
itol  building  at  Salem,  Oregon,  which  was  assigned  to  us  by  the  secretary  of  state 
of  the  State  of  Oregon.  That  we  duly,  on  said'day  and  hour,  demanded  of  the  gov- 
.  ernor  of  the  State  of  Oregon  and  of  tho  secretary  of  state  of  the  State  of  Oregon  cor- 
'  tided  lists  of  the  electors  for  Prosidentand  Vice-President  of  the  United  States  for 
the  State  of  Oregon,  as  provided  by  the  laws  of  the  United  States  and  of  the  State  of 
Oregon;  but  both  L.  F.  Grover,  governor  of  tho  State  of  Oregon,  and  S.  F.  Chad- 
wick,  secretary  of  state  of  said  State,  then  and  there  refused  to  deliver  to  us,  or 
either  of  us,  any  such  certified  lists  or  any  certificate  of  election  whatever.  And 
being  informed  that  such  lists  had  been  delivered  to  one  E.  A  Cronin  by  said  sec 
retary  of  state,  we  each  and  all  demanded  such  certified  lists  of  said  E.  A.  Croniu, 
but  he  then  and  there  refused  to  deliver  or  to  exhibit  such  certified  lists  to  us,  or 
eiihcr  of  us.  Whereupon  we  have  procured  from  the  secretary  of  state  certified 
copies  of  the  abstract  of  tho  vote  of  the  State  of  Oregon  for  electors  of  President 
and  Vice-President  at  the  presidential  election  hold  in  said  State  November  7,  A. 
D.  1876,  and  have  attached  them  to  the  certified  list  of  tho  persons  voted  for  by  us 
and  of  the  votes  cast  by  us  for  President  and  Vice-President  of  the  United  States, 
in  lieu  of  a  more  formal  certificate. 

W.  H.  ODELL. 
J.  W.  WATTS. 
JOHN  C.  CARTWRIGHT. 

Sworn  and  subscribed  to  before  me  this  Cth  day  of  December,  A.  D.  1876. 
[SEAL.]  '  THOS.  H.  CANN, 

Notary  Public  for  State  of  Oregon. 


What  becomes  now  of  the  proposition  of  a  State  being  defrauded 
of  its  vote  in  tho  electoral  college  when  its  electors,  appointed  accord 
ing  to  the  will  of  tho  people  of  the  State,  have  assembled,  discharged 
their  constitutional  duty,  and  are  deprived  by  tho  executive  of  the 
State  of  the  certified  lists  which  it  becomes  a  part  of  their  duty,  if 
they  receive  them  from  him,,  and  only  in  such  case,  to  append  in  veri 
fication  ?  Which  is  it  that  is  to  stand,  the  electors  made  by  the  Con 
stitution  of  the  United  States  sufficient  certifiersof  their  own  action, 
made  by  the  act  of  Congress  only  subject  to  the  single  duty  besides 
of  inclosing  the  lists  that  the  governor  may  have  given  theni  ?  What 
is  the  proposition,  that  the  electors  meeting,  voting,  certifying,  and 
transmitting,  and  showing  that  the  absence  of  the  governor's  lists 
arises  from  the  governor's  default  and  not  their  own,  and  that  they 
have  supplied  the  fact  on  which  the  governor's  list  must  rest  if  it  be 
lawful,  the  fact  of  the  final  canvass  of  the  election,  produced  before 
you  now  here  just  as  if  you  inspected  it  yourself  in  the  office  of  secre 
tary  of  state. 

Now  my  friends  are  in  the  face  of  the  proposition  whether  a  fraudu 
lent,  or  a  perverse,  or  an  ignorant  governor  can  subtract  or  withhold 
the  paper  and  the  electoral  college  be  destroyed  and  the  presidential 
vote  be  lost.  If  we  were  to  proceed  no  further,  I  should  insist  that, 
the  governor's  certificate  withheld,  was  there  any  excuse  for  that,  is 
there  any  pretense  that  it  was  delivered  f  Not  the  slightest.  Nobody 
pretends  that  the  governor  of  Oregon  ever  furnished  those  lists  to 
the  electoral  college  ;  nobody  pretends  that  any  messenger  or  inter 
mediary  of  his  ever  delivered  those  lists  to  the  electoral  college. 
What  is  the  language  of  the  act  of  Congress  in  that  behalf? 

It  shall  be  the  duty  of  the  executive  of  each  State  to  cause  three  lists  of  tho 
names  of  the  electors  of  such  State  to  bo  made  and  certified,  and  to  be  delivered  to 
the  electors  ou  or  before  tho  day  on  which  they  .ire  required  by  the  preceding  sec 
tion  to  moot. 

Is  it  to  the  college,  to  a  body,  or  is  it  not  ?  It  is  to  the  college  or 
body.  Did  tho  governor  ever  deliver  them  to  this  college  or  to  this 
body  that  were  met  ?  Did  Mr.  Croniu  ever  deliver  them  as  the  agent 
of  the  governor  to  this  college  or  body  that  were  met  ?  Their  title 
to  them  was  complete.  The  duty  and  obligation  of  the  governor  in 
this  behalf  were  complete  when  the  college  was  assembled  at  the 
capitol.  No  matter  who  composed  it,  whether  Watts  was  a  member 
or  Crouin  was  a  member,  the  papers  were  then  to  be  delivered  to  the 
college,  and  their  subtraction,  their  withholding,  needs  no  descrip 
tion  of  fraud  or  contrivance.  It  was  an  absolute  desertion  of  duty, 
and  such  desertions  of  duty  are  never  gratuitous.  They  always  have 
an  object,  and  the  result  that  followed  is  the  object  desigued. 

How  is  the  act  of  Oregon  in  this  behalf? 

The  secretary  of  state  shall  prepare  two  lists  of  tho  names  of  the  electors  elected 
and  affix  the  seal  of  the  State  to  the  same.  Such  lists  shall  be  signed  by  the  gov 
ernor  and  secretary,  and  by  the  latter  delivered  to  the  college  ot  electors  at  the 
hour  of  their  meeting  on  such  first  Wednesday  of  December. 

Was  that  done?  If  you  employ  an  agent  or  messenger  instead  of 
delivering  with  due  formality  and  opeuly  as  I  venture  to  say  has 
been  done  in  every  State  in  this  Union,  has  been  done  iu  Oregon 
until  this  election,  then  you  are  responsible  to  see  that  the  messenger 
or  agent  makes  the  delivery.  I  then  say  that  this  certification  and 
action  of  this  college  are  all  that  the  Constitution  and  1  he  laws  of  the 
United  States  require,  and  that  on  the  face  of  this  certificate,  the  col 
lege  making  its  representation,  and  the  knowledge  of  this  college  in 
respect  to  its  majority  of  attending  members  being  open  to  any  in 
quiry,  you  are  at  once  face  to  face  with  the  proposition  whether  a 
subtraction,  a  suppression  by  the  executive  of  the  State  of  one  of 
these  lists  entitles  both  houses  of  Congress  to  throw  out  the  vote  of 
the  State. 

But  this  certificate  contains  a  great  deal  more.  The  occasion  for 
its  containing  so  much  more  is  undoubtedly  because  of  this  violation 
of  duty  on  the  part:  of  tho  executive  of  the  State,  but  what  docs  it 
contain  ?  It  contains  an  abstract  of  votes  cast  at  the  presidential 
election  as  on  file  in  the  secretary  of  state's  office.  It  is  the  very  can 
vass  itself  of  every  county  for  every  candidate  and  in  every  figure 
that  becomes  the  subject  of  tabulation. 
SAI.KM,  STATE  OF  OREGON  : 

I  hereby  certify  that  the  foregoing  tabulated  statement  is  the  result  of  the  vote 
cast  for  presidential  electors  at  a  general  election  held  in  and  for  the  State  of  Ore 
gon  on  the  7th  day  of  November,  A.  D.  1876,  as  opened  and  canvassed  in  the  pres 
ence  of  his  excellency  L.  F.  Grover,  governor  of  said  State,  according  to  law,  on 
tho  4th  day  of  December,  A.  D.  1876,  at  two  o'clock  p.  m.,  of  that  day,  by  the  secre 
tary  of  state. 

[SEAL.]  S.  F.  CHADWICK, 

Secretary  of  State  of  Oregon. 

Besides  this  there  is  this  certificate  tho  importance  of  which  will 
appear  from  the  citation  of  some  of  the  statutes  of  Oregon  which  I 
shall  mention : 

UNITED  STATES  OF  AMERICA, 
STATE  OF  OKEGON,  SECRETARY'S  OFFICE, 

Salem,  December  6,  1876. 

T,  S.  F.  Chadwick,  secretary  of  the  State  of  Oregon,  do  hereby  certify  that  I  am 
the  custodian  of  the  great  seal  of  the  State  of  Oregon  ;  that  the  foregoing  copy  of 
the  abstract  of  votes  cast  at  tho  presidential  election  held  in  the  State  of  Oregon 
November  7.  1876,  for  presidential  electors,  has  been  by  mo  compared  with  tho 
original  abstract  of  votes  cast  for  presidential  electors  aforesaid,  on  file  in  this  of 
fice,  and  said  copy  is  a  correct  transcript  therefrom  and  of  tho  whole  of  the  said 
original  abstract  of  votes  cast  for  presidential  electors. 

That  is  thet  ransaction  which,  observed  and  attended  to  by  the  gov 
ernor  in  a  certificate,  would  give  to  his  certificate  the  support  in  law 
if  he  had  discharged  the  duty  in  fact : 


ELECTORAL  COMMISSION. 


171 


In  witness  whereof  I  have  hereto  set  my  hand  and  affixed  the  great  seal  of  the 
State  of  Oregon  the  day  and  year  above  written. 

|M'  YL.  I  ^'    ~^'   CIIADWlCIv, 

Secretary  of  the  State  of  Oregon. 
Besides  that  there  is  this  : 

Lint  of  votes  cast  at  an  election  for  electors  of  President  and  Vice-President  of  the 
United  States  in  the  State  of  Oregon  held  on  the  ~th  day  of  November,  1876. 

FOIt  I'UESIDEXTIAL  ELECTORS. 

"W.  IT.  Odell  received  fifteen  thousand  two  hundred  and  six  (15.206)  votes. 
J.  W.  "Watts  received  fifteen  thousand  two  hundred  and  six  (15.206)  votes. 
J.  C.  Cartwright  received  fifteen  thousand  two  hundred  and  fourteen  (15,214) 
votes. 

E.  A.  Cronin  received  fourteen  thousand  one  hundred  and  fifty-seven  (14,157) 
votes. 

H  Klippel  received  fourteen  thousand  one  hundred  and  thirty-six  (14.136)  votes. 
"W.  15.  Laswell  received  fourteen  thousand  one  hundred  and  forty-nine  (14,149) 
votes. 
Daniel  Clark  received  five  hundred  and  nine  (509)  votes. 

F.  Sutherland  received  five  hundred  and  ten  (510)  votes. 
Bart  Curl  received  five  hundred  and  seven  (507)  votes. 

S.  W.  McDowell  received  three,  (3,)  Gray  one,  (1,)  Simpson  one,  (1,)  and  Salis 
bury  one  (1)  vote. 

I,  S.  F.  Chadwick,  secretary  of  state  in  and  for  the  State  of  Oregon,  do  hereby 
certify  that  the  within  and  foregoing  is  a  full,  true,  and  correct  statement  of  the 
entire  vote  cast  for  each  and  all  persons  for  the  office  of  electors  of  President  anjl 
Vice-President  of  the  United  States  for  the  State  of  Oregon  at  the  general  election 
held  in  said  State  on  the  7th  day  of  November,  A.  D.  1876,  as  appears  by  the  returns 
of  said  election  now  on  file  in  my  office. 

[SEAL.]  S.  F.  CnADWICK, 

Secretary  of  State  of  Oregon. 

There  is  the  list  by  the  executive  authority  of  the  State  of  Oregon 
so  far  as  it  was  lodged  in  the  office  and  committed  to  the  secretary 
of  state,  so  far  as  the  great  seal  of  the  State  affixed  by  the  executive 
officer  of  the  State  having  its  custody  could  make  a  certification  by 
a  State.  Who  else  is  there  in  Oregon  that  can  certify  a  list  ?  Who 
has  the  list?  Who  has  the  sealf  Who  has  the  office  both  of  record 
and  of  certification?  The  secretary  of  state.  Supposing,  then,  that 
to  be  so  for  a  moment,  where  do  you  find  any  defect  of  that  in 
being  an  adequate  compliance  with  the  act  of  Congress  and  the  act 
of  Oregon  that  gives  you  a  list  of  the  persons  appointed?  Yon  have 
nothing  to  do  but  to  read  the  laws  of  Oregon  and  see  that  electors 
are  to  be  appointed  by  election,  and  that  in  every  election  held  in 
that  State  tiie  persons  that  have  the  highest  number  of  votes  shall 
be  declared  elected — that  is  in  the  Constitution  and  in  the  election 
laws — "that  the  persons  having  the  highest  number  of  votes  shall  be 
deemed  elected,"  and  then  you  discard  all  the  rest  as  surplusage  and 
unnecessary  verification  of  the  thing  certified.  What  does  it  want 
under  the  act  of  Oregon?  The  act  of  Oregon  requires  a  list  to  be 
given  by  the  secretary  of  state  under  the  great  seal  of  the  State,  and 
only  requires  that  the  governor  shall  sign  it.  The  governor,  in  pur 
suance  of  the  great  breach  of  trust  and  duty  which  he  had  meditated 
and  was  performing,  refused  his  name  to  that  certification.  Does 
that  cease  to  be  a  certification  that  the  Congress  of  the  United  States 
will  accept  as  an  adequate  observance  of  the  directory  duty  that  the 
executive  authority  of  a  State  shall  furnish  lists  of  the  persons  ap 
pointed?  I  think  not.  We  shall  see  by  very  brief  references  that 
under  the  laws  of  Oregon  this  paper  now  here  before  you  is  to  you 
as  matter  of  evidence  precisely  the  same  as  if  you  had  before  you 
the  original  paper  in  the  office  of  the  secretary  of  state.  I  ask  atten 
tion  to  the  laws  of  Oregon,  not  printed  in  the  little  syllabus,  that 
relate  to  the  subject  of  evidence  of  public  wrongs  at  pages  253,  256, 
and  257  of  the  Oregon  code.  The  constitutional  provision  is  given  in 
this  pamphlet,  page  137 : 

There  shall  be  a  seal  of  State,  kept  by  the  secretary  of  state  for  official  purposes, 
•which  shall  be  called  "  the  seal  of  the-  State  of  Oregon." 

The  secretary  of  state  shall  keep  a  fair  record  of  the  official  acts  of  the  legisla 
tive  assembly  and  executive  department  of  the  State. 

The  secretary  of  state,  by  the  law  of  Oregon,  is  keeper  of  the  action 
of  the  executive  department  of  the  State — 

and  shall,  when  required,  lay  the  same  and  all  matters  relative  thereto  before 
either  branch  of  the  legislative  assembly. 

The  seven  hundred  and  seventh  section  of  the  Oregon  revision  pro 
vides  : 
Every  citizen  of  this  State  has  a  right  to  inspect  any  public  writing  of  this  State, 


of  the  le^al  fees  therefor,  and  such  copy  is  primary  evidence  of  the  original  writ 
ing. 

The  documents  that  are  embraced  within  this  duty  of  the  secre 
tary  of  state  are  named,  so  far  as  pertinent  to  this  inquiry,  on  page 
256,  and  within  this  certificate,  as  provided  in  section  738  : 

"Whenever  a  copy  of  a  writing  is  certified  to  he  used  as  evidence,  the  certificate 
shall  state  that  this  copy  has  been  compared  by  the  certifying  officer  with  the  orig 
inal,  and  that  it  is  a  correct  transcript  therefrom,  and  of  the  whole  of  such  original 
or  of  a  specified  part  thereof.  The  official  seal,  if  there  be  any,  of  the  certifying 
officer  shall  also  bo  affixed  to  such  certificate  or  any  other  certificate,  <fcc. 

Looking  at  this  certificate,  then,  with  the  act  of  Congress  before 
you — with  the  act  of  Congress  in  reference  to  certified  lists  that  are 
to  be  used  and  employed,  can  you  have  any  doubt  that  this  contains 
all  that  is  necessary  to  make  action,  the  bonafide  action,  the  complete 
lawful  action,  of  the  electors  and  of  the  State  that  had  chosen  them 
electors? — the  disparagement  of  the  authentication  under  the  act 
of  Congress  by  the  governor's  withholding  of  his  certificate  if  unex 
plained  not  affecting  the  certification  by  the  electors,  who  havedone 


their  duty  under  the  Constitution,  and  are  chargeable  with  no  want 
of  fluty  under  the  act  of  Congress  or  under  the  act  of  Oregon. 

We  have,  besides,  the  minister  of  the  college.  Now  are  the  elec 
tors  a  body?  They  are  so  described  in  the  statutes  of  the  United 
States ;  they  are  so  described  in  the  statutes  of  Oregon.  They  are 
necessarily  a  college  under  the  power  confided  in  them  to  fill  vacan 
cies,  which,  both  by  the  act  of  Congress  and  by  the  statutes  of  their 
respective  States,  is  confided  to  them. 

Mr.  Commissioner  BRADLEY.     Mr.  Evarts,  who  made  this  list  ? 

Mr.  EVARTS.    The  original  as  now  on  file  ? 

Mr.  Commissioner  BRADLEY.    Yes. 

Mr.  EVARTS.  The  secretary  of  state  as  the  canvassing  officer  in 
the  presence  of  the  governor,  as  I  understand. 

Mr.  Commissioner  ABBOTT.  Permit  me  to  ask  if  there  is  any  law 
that  yon  have  discovered,  Mr.  Evarts,  which  permits  the  secretary  of 
state  to  certify  to  a  result  drawn  from  certain  figures  before  him,  cer 
tain  returns  ?  Is  it  not  simply  that  he  can  certify  to  any  paper  for 
what  it  is  worth  ? 

Mr.  EVARTS.    By  reason  of  this  general  power  ? 

Mr.  Commissioner  ABBOTT.     Yes,  sir. 

Mr.  EVARTS.  He  has  given  a  certificate  of  the  full  paper  ;  that  is 
the  canvass.  All  the  rest  is  a  transaction  lower  down  in  the  election. 
These  are  all  the  counties  of  the  State,  all  the  votes  returned,  all  the 
candidates  voted  for,  the  distribution  and  the  tabulation,  and  was 
done  by  him  in  the  presence  of  the  governor. 

Mr.  Commissioner  ABBOTT.  I  will  call  your  attention  to  the  cer 
tificate  on  the  second  page  : 

I  herehy  certify  that  the  foregoing  tabulated  statement  is  the  result  of  the  vote 
cast  for  presidential  electors,  &c. 

Mr.  EVARTS.    Yes. 

As  opened  and  canvassed  in  the  presence  of  his  excellency  L.  F.  Grovcr,  gov 
ernor  of  said  State. 

That  is  canvassing ;  producing  the  tabulated  vote  from  the  votes 
forwarded  from  the  precincts  and  counties  is  the  canvass. 

Mr.  Commissioner  BRADLEY.    The  next  says  "copy  of  abstract." 

Mr.  EVARTS.    Yes. 

Mr.  Commissioner  BRADLEY.  "  Compared  with  the  original  ab 
stract  of  votes  cast  for  presidential  electors  aforesaid,  on  file  in  this 
office." 

Mr.  EVARTS.  Yes,  and  the  whole  of  it.  Will  any  one  tell  me 
what  else  there  was  to  canvass  ?  What  more  can  anybody  do  than 
take  the  returns  ?  They  cannot  alter  them  ;  they  are  all  to  be  opened, 
all  to  be  canvassed,  and  the  result  produced  ;  whether  you  call  it  a 
result,  provided  it  be  a  paper  formal,  complete,  recorded,  or  whether 
you  call  it  an  abstract  of  the  votes  according  to  law,  it  is  the  trans 
action  that  the  law  confides  to  the  officer,  and  it  is  its  execution  as  ho 
files  it  after  he  has  performed  the  duty.  You  will  see  by  the  election 
laws  that  section  37  provides : 

The  county  clerk,  immediately  after  making  the  abstract  of  the  votes  given  in  his 
county — 

The  same  word  is  used  ;  that  is  his  return  ;  that  is  his  canvass. 
The  abstract  is  the  canvass  set  down  as  the  result. — 

shall  make  a  copy  of  each  of  said  abstracts,  and  transmit  it  by  mail  to  the  secretary 
of  state  at  the  seat  of  government;  and  it  shall  be  the  duty  of  the  secretary  of 
state,  in  the  presence  of  the  governor,  to  proceed  within  thirty  days  after  the  elec 
tion,  and  sooner,  if  the  returns  bo  all  received,  to  canvass  the  votes  given  for  sec 
retary  and  treasurer  of  State.  State  printer,  justices  of  the  supreme,  court,  mem 
ber  of  Congress,  and  district  attorneys;  and  the  governor  shall  grant  a  certificate 
of  election  to  the  person  having  the  highest  number  of  votes,  and  shall  also  issue 
a  proclamation  declaring  the  election  of  such  person. 

Then  for  the  officers  designated  in  regard  to  the  election  of  Presi 
dent  : 

The  votes  for  the  electors  shall  be  given,  received,  returned,  and  canvassed  as 
the  same  are  given,  returned,  and  canvassed  for  members  of  Congress.  The  sec 
retary  of  state  shall  prepare  two  lists,  <fcc. 

There  being  no  provision  for  a  governor's  commission  or  anything 
of  that  kind  ;  but  I  will  not  repeat  the  argument  of  my  learned  asso 
ciate  so  effectually,  as  it  seems  to  me,  made  in  regard  to  this  opera 
tion.  What  I  have  to  say  to  your  honors  is  this,  that  yon  have  in 
cluded  by  authentication  satisfactory  to  the  laws  of  Oregon  of  the 
very  canvass  itself  as  it  now  appears  of  record  in  the  Department  of 
State.  There  is  no  other  canvass.  The  blotter  or  the  slate  in  which 
there  may  have  been  a  tentative  addition  of  numbers  is  not  the  trans 
action  of  record.  This  is  the  very  thing.  It  never  existed  as  a  can 
vass  till  it  stood  in  that  shape,  and  standing  in  that  shape  it  could 
acquire  nothing  additional,  tolerate  nothing  additional. 

In  the  minutes  this  board  proceeds  with  its  own  transaction.  The 
hour  having  arrived, 

The  meeting  was  duly  organized  by  electing  "W.  II.  O  Jell,  chairman,  and  J.  C. 
Cartwright,  secretary. 

The  resignation  of  J.  "W.  "Watts,  who  was  on  November  7,  A.  D  It. 6,  duly 
elected  an  elector  of  President  and  Vice-President  of  the  United  States  for  the  State 
of  Oregon,  was  presented  by  W.  II.  Odell,  and,  after  being  duly  read,  was  unani 
mously  accepted. 

You  have  his  resignation.  It  was  a  transaction  in  perfect  good 
faith.  It  was  in  open  day.  Itwasmatterofrecordinthiscollege.lt 
rested  upon  an  uncertain  opinion  as  to  whether  his  having  been  post 
master  destroyed  his  eligibility,  whether  it  would  destroy  his  vote  ; 
he  refuses  to  act  under  that  appointment  for  fear  of  that  public  injury 
to  the  State  of  Oregon.  He  did  his  duty  in  the  college  of  electors. 


172 


ELECTORAL  COMMISSION. 


If  Cronin  was  a  member  of  the  college  and  Cronin  had  attended  and 
Cronin  had  part  in  the  transactions,  whatever  was  done  by  Watts 
was  done  openly  and  would  be  seen  and  known  by  Cronin  as  well  as 
the  others,  and  if  there  remained  further  controversy,  further  action 
of  the  college  to  determine  who  were  the  three,  that  would  have  been 
taken,  that  would  have  been  recorded  in  the  minutes ;  but  of  the 
principal  fact,  that  Watts  refused  to  act  under  his  original  appoint 
ment  on  the  scruple  that  his  State  might  thereby  lose  a  vote  that  it 
was  entitled  to,  the  college  proceeds,  the  disability  having  been  re 
moved  iu  their  construction,  and  in  yours,  as  I  submit,  proceeded  to 
recognize  the  will  of  the  people  of  Oregon  in  their  selection  of  the 
person  of  Mr.  Watts,  a  man  known  and  trusted  by  that  people,  and 
gave  him  a  title  which,  trusting  to  the  State  of  Oregon,  would  not 
put  in  peril  one  of  its  votes. 

Then  the  voting  proceeds  and  the  ballots  are  here.  The  very  bal 
lots  themselves,  the  originals  that  were  deposited  are  here,  each  of 
them  bearing  the  indorsement  of  the  elector  who  deposited  it.  There 
fore  you  have  the  election  here,  and  now  I  should  like  to  know 
whether  under  the  Constitution  of  the  United  States,  under  the 
statute  of  1792,  under  the  law  of  Oregon  about  presidential  elections, 
these  minntes  are  not  plenary  proof  of  the  action  of  that  college, 
if  that  was  a  college.  Did  anybody  ever  pretend  that  the  certificate 
named  by  the  act  of  Congress  was  any  part  of  the  warrant  of  the 
electors  to  act  in  the  college?  No.  It  is  to  be  delivered  to  the  elect 
ors  acting  in  the  college  in  order  that  they  may  use  it  as  part  of 
their  transaction.  Who  can  contradict  this?  Who  can  be  heard  to 
contradict  it  ?  You  have  then  this  absolute  proof.  When  this  college 
convened  and  undertook  to  act  there  were  present  the  two  men  that 
without  any  impeachment  had  a  perfect  title  to  the  office.  There 
was  present  a  third  man,  and  there  was  nobody  else  present,  and 
then  the  transactions  went  on. 

I  apprehend,  therefore,  that  unless  yon  hold  that  the  governor's 
certificate  and  its  subtraction  by  the  violation  of  the  governor's  duty 
is  sufficient  to  suppress  the  electoral  college  and  the  vote  of  the 
State,  you  have  here  everything  that  you  need  under  the  act  of  Con 
gress,  undei  the  Constitution  of  the  United  States,  without  looking 
at  the  certificates  which  they  put  in  in  support  of  their  title,  out  of 
abundant  caution,  in  the  abundant  performance  of  duty,  in  order  that 
it  may  be  seen  that  the  absence  of  any  formality  is  not  to  be  imputed 
to  them  from  the  absence  of  the  principal  fact  on  which  and  of 
which  the  formality  derives  its  sole  claim  to  existence. 

We  have  another  certificate,  and  this  contains  nothing  that  con 
tradicts  the  other,  nothing  that  by  itself  can  stand  on  its  own  inspec 
tion  as  an  adequate  transaction.  In  the  first  place,  what  is  the  certifi 
cate  of  the  governor?  Does  this  comply  with  the  act  of  Congress? 

I,  L.  F.  Grover,  governor  of  the  State  of  Oregon,  do  hereby  certify  that,  at  a 
general  election  held  in  said  State  on  the  7th  flay  of  November,  A.  I).,  1876, 
William  H.  Odell  received  15,2r  6  votes,  John  C.  Cartwright  received  1.V214  votes, 
E.  A.  Cronin  received  14,157  votes,  for  electors  of  President  and  Vice- President  of 
the  United  States  — 

The  syntax  arrangement,  perhaps,  is  a  little  at  fault,  but  we  begin 
after  a  semicolon  thus  — 

being  the  highest  number  of  votes  cast  at  said  election  for  persons  eligible,  under 
the  Constitution  of  the  United  States,  to  bo  appointed  doctors  of  President  and 
Vice- President  of  the  United  States,  they  are  hereby  declared  duly  elected  electors 
as  aforesaid  for  the  State  of  Oregon. 

That  is  a  negative  pregnant.  The  disparity  of  votes  is  shown.  The 
fact  of  election  on  a  general  ticket  is  matter  of  law  in  the  State.  You 
have  in  the  other  certificate  the  clear  certification  of  how  the  fact 
was  as  to  who  had  the  highest  number  of  votes.  Now  this  governor 
has  undertaken  by  the  insertion  of  the  word  "  eligible"  to  cover  him 
self  from  the  condemnation  of  open  and  recognized  fraud  and  false 
hood,  and  he  has  undertaken  by  giving  a  reason,  instead  of  obeying 
the  constitution  and  laws  of  Oregon,  to  save  himself  from  having 
absolutely  deserted  his  duty.  If  there  ever  was  a  State  that  had 
taken  every  precaution  to  provide  that  all  these  suggestions,  all  these 
surmises,  that  by  some  method  of  construction,  by  some  usurpation 
of  power  others  than  the  men  who  received  the  highest  number  of 
vx>tes  could  be  deemed  elected  anywhere  in  that  Sbate,  the  constitu 
tion  and  the  laws  of  Oregon  had  so  provided.  Why  was  not  the 
word  "eligible "  put  into  the  constitution  and  put  into  the  laws  as 
determining  who  should  be  the  product  of  an  election,  who  should 
be  declared  the  product  of  an  election,  who  should  be  treated  as  the 
product  of  an  election  ?  The  constitution  provides,  as  you  have  seen, 
that— 

In  all  elections  hold  by  the  people  under  this  constitution,  the  person  or  persons 
•who  shall  receive  the  highest  number  of  votes  shall  be  declared  duly  elected. 

Concede  for  the  moment  that  electors  are  not  within  that  clause  of 
the  constitution,  nevertheless  this  shows  what  tho  constitutional  law 
of  Oregon  was  with  respect  to  what  makes  an  election;  and  when 
the  Legislature  has  determined  that  the  electors  for  President  and 
Vice-President  of  the  United  States  shall  bo  produced  by  the  method 
of  election,  and  when  they  have  a  law  which  is  not  limited  to  any 
thing  except  the  question  whether  the  election  is  in  the  State  and 
ascribes  the  efficacy  of  tho  highest  number  is  complete  and  final,  as 
they  do  in  this  clause : 

In  all  elections  in  this  State  the  person  having  tho  highest  number  of  votes  for 
any  omce  shall  bo  deemed  to  have  been  elected. 

That  is  section  40.  But  in  the  election  law  you  will  find  tho  strong 
est  provision  that  tho  highest  number  of  votes  in  the  instance  when 


it  does  prevent  an  election,  because  there  are  two  for  the  same  office 
having  the  highest  number  of  votes.     In  section  3G : 

If  the  requisite  number  of  comity  or  precinct  officers  shall  not  bo  elected  by 
reason  of  two  or  more  persons  having  an  equal  and  the  highest  number  of  votes  for 
one  and  the  same  oilico,  tho  clerk  whoso  duty  it  is  to  compare  tho  polls  shall  give 
notice  to  tho  several  persons  so  having  tho  highest  and  an  equal  number  of  votes 
to  attend  at  tho  oilico  of  tho  county  clerk  at  a  time  to  bo  appointed  by  said  clerk, 
who  shall  then  and  there  proceed  publicly  to  decide  by  lot  which  of  'the  persons 
so  having  an  equal  number  of  votes  shall  DO  declared  duly  elected  ;  and  the  said 
clerk  shall  make  and  deliver  to  tho  person  thus  declared  elected  a  certificate  of  hia 
election  as  hereinbefore  provided. 

Had  the  clerk  a  right  to  discharge  tho  duty  limited  to  casting 
votes  and  the  imperative  obligation  to  declare  the  one  who  received 
the  lot — had  the  clerk  tho  right  to  substitute  for  that  duty  a  de 
termination  that  there  were  no  two  persons  that  had  received  the 
highest  number  of  votes,  and  the  lot  was  not  required,  because  he 
thought  one  of  them  was  not  eligible  ?  But  the  clerk  has  in  regard 
to  those  officers  every  power  that  tho  governor  has  in  regard  to  the 
other  officers,  (see  section  37  :) 

In  case  there  shall  be  no  choice  by  reason  of  any  two  or  more  persons  having  an 
equal  and  tho  highest  number  of  votes  for  cither  of  such  offices — 

That  is,  tho  larger  offices  of  the  State — 
the  governor  shall  by  proclamation  order  a  now  election  to  fill  said  offices. 

Is  not  that  an  imperative  duty  on  the  governor  when  there  are  two 
having  tho  highest  number  of  votes?  Tho  law  of  Oregon  is  that 
disqualification  does  not  elect  the  other,  and  that  in  that  case  there 
must  be  a  new  election ;  and  has  this  governor  the  authority  to  de 
termine  that,  instead  of  having  a  new  election,  he  will  commission 
the  one,  not  that  has  the  highest  number  of  votes — for  that  is  inscru 
table,  they  being  equal — but  tho  one  that  ho  thinks  is  eligible?  What 
becomes  of  the  right  of  the  people  to  have  a  new  election  ?  They 
voted  for  the  men ;  they  have  produced  that  result,  and  they  are  en 
titled  to  the  consequence  of  the  election. 

What  then  is  the  title?  What  does  it  rest  upon  ?  It  is  quite  im 
material  to  you  what  the  Cronin  title  in  tho  abstract  is.  The  point 
for  you  to  determine  is  which  of  these  colleges  is  to  be  counted. 
There  cannot  be  two  colleges.  When  the  civil  law  laid  down  tho 
proposition  that  trcsfacit  collegium,  it  lays  it  down  in  tho  assertion  of 
a  principle,  not  by  an  arbitrary  rule.  The  principle  of  a  college  is 
that  the  majority  governs,  and  that  principle  cannot  be  applied  to  a 
less  number  than  three.  One  man  is  not  a  college  ;  two  men  are  not 
a  college,  for  there  is  not  a  majority  there  unless  it  be  unanimity. 
Unanimity  is  not  the  essence  of  a  college.  So  long  as  people  are 
unanimous  they  proceed  in  their  natural  rights  as  individuals  ;  but 
three  make  a  college  because  the  vital  principle  of  a  college  is  that 
the  majority  exercise  tho  power  of  tho  college ;  and  here  what  have 
you  before  you  ?  A  college  of  three ;  a  college  assembled;  and  what 
is  Cronin's  account  of  it?  That  all  three  met,  and  instead  of  saying 
anything  short  he  undertakes  to  say  that  they  refused  to  act  as 
electors  of  President  and  Vice-President.  Will  you  allow  his  state 
ment,  backed  by  the  certifying  names  of  two  men  who  wore  not 
present — for  they  came  in  afterward  and  were  chosen  electors  by 
Cronin,  after  the  transaction  upon  which  he  bases  the  formation  of 
his  college — will  you  allow  Crouin's  statement  that  these  two  men 
resigned,  declined,  remitted,  deserted  the  duty  of  voting  for  Presi 
dent  of  the  United  States  to  outweigh  their  own  certificate,  their 
own  action,  their  own  return,  their  own  ballots  that  are  hero  before 
you  ?  I  should  think  not.  And  if  you  are  bound  to  look  at  tho  matter 
upon  tho  legal  question  whether  the  majority  of  the  college  can  till  the 
vacancy  or  whether  the  minority  of  the  college  can  fill  the  vacancy, 
each  having  assumed  to  do  it,  you  will  have  no  great  trouble  in  deter 
mining  that  tho  majority  anchors  the  college  to  itself,  and  that  tho 
minority  is  no  college  at  all. 

Supposing  it  to  bo  true  that  these  electors  did  not  recognize  Cro- 
niu,  did  not  regard  him  as  an  elector ;  they  had  the  right  to  that  judg 
ment.  Nobody  else,  I  think,  regarded  him  as  such  except  upon  tho 
experimental  invention  of  him  to  see  whether  he  could  be  manufact 
ured  to  stand  until  after  the  counting  of  this  vote.  But  did  you 
ever  hear  that  when  a  bank  director  or  a  member  of  any  corporation 
or  of  any  board,  municipal  or  civil,  under  the  Government  of  the 
United  States  or  under  the  government  of  any  State,  did  not  recog 
nize  the  title  of  one  man  claiming  to  be  a  member  of  that  board,  that 
anything  happened  except  that  ho  was  excluded,  and  if  he  was 
wrongfully  excluded  he  must  right  himself  by  law  ?  Other  parties 
might  question  whether  the  action  of  the  board  taken  after  that  ex 
clusion  was  or  was  not  lawful.  But  did  you  ever  hear  that  tho  ex 
clusion  of  a  member  of  the  board,  lawful  or  unlawful,  just  or  unjust, 
authorized  him  to  go  and  fill  the  board  and  go  on  with  business?  I 
think  that  is  as  great  anovelty  in  the  law  of  colleges,  of  civil  boards, 
of  governmental  boards,  or  of  private  boards,  as  was  ever  suggested. 
If  you  depart  from  the  proposition  that  whatever  may  have  happened 
in  respect  ito  Cronin  of  injustice  or  exclusion,  that  did  not  make  him 
the  college,  you  have  this  absurd  possibility  in  a  State  like  Oregon, 
that  you  would  have  three  colleges,  each  man  preferring  to  throw  the 
votes  his  own  way  and  by  his  own  authority.  But  if  you  adopt  tho 
rule  that  the  majority  constitutes  the  college,  you  put  yourself  under 
the  protection  of  tho  principle  which  governs  all  corporate  action, 
that  there  can  bo  but  one  college,  one  board,  because  the  majority 
draws  to  itself  all  the  powers  of  tho  board. 

Now  look  at  tho  very  peremptory  direction  of  tho  law  of  Oregon  in 


ELECTORAL  COMMISSION. 


173 


respect  to  the  conduct  of  the  hoard  when  it  meets  to  discharge  its 
duty — section  59  : 

1  ho  electors  of  President  and  Vice-President  shall  convene  at  the  seat  of  gov 
ernment  on-  the  rirst  Wedni  sday  of  December  next  after  their  election,  at  the  hour 
of  twelve  of  the  clock  at  noon  of  that  day  ;  and  if  there  shall  bo  any  vacancy  in  the 
otiice  of  an  elector,  occasioned  by  death,  refusal  to  act,  neglect  to  attend,  or  other 
wise,  the  electors  present  shall  immediately  proceed  to  lill,  by  viva  voce  aud  plu 
rality  of  voles,  such  vacancy  in  the  electoral  college. 

Can  you  have  a  plurality  of  votes  when  only  one  vote  is  cast  ? 
And  when  all  the  electors  shall  appear,  or  the  vacancies,  if  any,  shall  have  been 
filled,  as  above  provided. 

They  are  not  allowed  to  go  on ;  they  are  not  allowed  to  act  for  the 
State  of  Oregon  until  they  are  possessed  of  the  means  of  casting  its 
whole  vote. 

Mr.  Commissioner  ABBOTT.  Permit  me  to  ask  you,  Mr.  Evarts, 
what  would  he  the  case  if  two  of  the  electors  had  died  since  the  elec 
tion  ?  There  is  but  one  left  in  the  land  of  the  living  ;  must  the  State 
lose  its  two  votes  or  three? 

Mr.  EVAKTS.     If  the  whole  three  have  died  ? 
Mr.  Representative  ABBOTT.    No ;  if  two  have  died  and  there  is 
hut  one  lelt  ? 

Mr.  EVARTS.  I  will  answer  the  three  first.  If  two  have  died  and 
there  is  one  left,  the  State  ought  to  exercise  a  power  reserved  to  it 
to  treat  the  election  as  having  failed,  or  it  may  he  the  votes  would  be 
lawful.  There  is  no  existing  law  of  Oregon,  and  no  existing  law  of 
any  State,  that  in  its  terms  covers  the  case  of  there  not  being  a 
college  to  proceed  to  lill  vacancies.  There  can  he  no  college  when 
you  are  reduced  to  one.  You  have  an  elector,  I  agree,  and  it  is  cer 
tainly  undesirable  that  the  State  should  lose  its  votes.  That  I  agree, 
and  1  agree  that  an  honest  effort  to  present  the  vote  to  the  Congress 
here  acting  on  the  subject  should  receive  every  indulgence  on  the 
part  of  the  political  authority  that  deals  with  the  question,  but  I 
certainly  cannot  as  matter  of  law  admit  either  under  the  act  of  Con 
gress  or 

Mr.  HOADLY.  Will  you  permit  a  question  ?  Docs  the  word  "  plu 
rality"  there  refer  to  plurality  of  the  original  number  elected,  or  of 
those  remaining  after  the  vacancy  ? 

Mr.  EVAKTS.  There  is  nothing  that  confines  it  to  the  whole  num 
ber.  It  is  a  clear  authority  to  them  to  choose  by  the  plurality  of  a 
quorum. 

Mr.  HOADLY.    To  those  remaining  ? 

Mr.  EVARTS.  Of  those  remaining ;  but  that  does  not  touch  the 
question  of  whether  there  should  or  should  not  be  a  quorum  to  aet. 
The  ordinary  rule  of  corporations  and  colleges  is  that  a  majority  of 
a  quorum  is  equivalent  to  a  majority  of  the  whole.  There  must  be 
some  statute  to  the  contrary.  This  college  of  electors  consisted  of 
the  two  men  clearly  chosen,  that  are  not  blotted  out  by  any  evidence 
before  you,  except  the  certificate  of  Croniu,  not  that  they  refused  to 
act  with  him,  but  he  says  they  refused  to  act  as  electors.  Where  is 
his  evidence?  Where  is  the  record  ?  Where  are  the  minutes ?  Where 
is  the  notice  in  writing  ?  Where  is  the  absenteeism  ?  That  is  not  cer 
tified  to ;  but  they  refused  to  act  as  electors,  and  he  then  proceeded 
to  lill  their  places  by  his  single  vote. 

Now  whether  or  not  under  the  laws  of  some  States  that  faculty 
could  reside  in  a  single  elector,  it  does  not  reside  iu  a  single  elector 
by  the  act  of  Oregon.  Oregon  had,  by  the  provisions  of  the  electoral 
law  of  the  Union,  power  to  provide  for  failures  of  elections.  What 
was  that  ?  It  was  when  the  election  failed,  when  there  was  no  pro 
duction  of  enough  electors,  if  you  please,  to  meet  the  true  exigency 
of  the  law  in  that  behalf,  if  it  required  a  majority  to  be  produced  by 
an  election;  and  it  is  iu  that  case,  and  in  that  case  only,  that  the 
State  is  allowed  by  the  United  States  law  to  substitute  in  the  place 
of  the  regular  moue  of  election  some  secondary  method.  But  it  does 
not  require  the  State  to  provide  a  different  mode  of  filling  a  vacancy 
arising  from  a  failure  to  elect  from  the  mode  that  they  adopt  for  fill 
ing  a  vacancy  arising  in  any  other  manner.  Oregon  has  settled  that 
question  for  itself,  that  iu  whatever  way,  on  the  very  day  of  castiu 
the  electoral  vote,  a  vacancy  in  the  college  should  exist  it  should  be 
filled.  Thus,  while  the  Constitution  makes  it  absolutely  necessary 
that  there  should  be  a  personal  attendance  to  cast  a  vote,  and  that  a 
majority  cannot  cast  an  absent  vote,  because  the  voting  is  to  bo  by 
ballot,  and  the  ballots  are  to  bo  counted,  the  State  determines  that 
by  no  chance  will  it  lose  a  vote  if  there  be  persons  present  on  that 
day  that  can  fill  the  places  and  save  the  State  its  full  representation 
in  the  electoral  college. 

The  State  of  Rhode  Island,  finical  as  it  was  in  its  legislation,  in 
stead  of  making  a  better  arrangement  than  this  of  Oregon  and  the 
other  States,  placed  itself  under  a  much  worse  system,  according  to 
the  judicial  opinion  given  by  the  supremo  court  of  that  state.  Sup 
pose  that  when  the  Legislature  of  that  State  undertakes  by  a  new 
appointment  to  till  the  vacancies  originating  from  a  failure  of  the 
people  to  elect  it  should  be  found  that  the  Legislature  has  filled  the 
vacancy  by  a  person  who,  when  he  comes  to  the  college,  proves  him 
self  to  be  disqualified,  what  is  to  happen  in  that  State  then  f  The 
Legislature  has  not  given  to  the  college  the  plenary  power  to  fill  va 
cancies.  The  resignation  or  withdrawal  of  the  disqualified  elector 
will  not  allow  the  college  to  fill  his  place.  The  same  vice  inheres  in 
the  choice  by  the  Legislature  of  an  unqualified  person  that  woulc 
arise  from  such  an  election  by  the  people,  and  the  State  must  lose 
the  vote.  To  bo  sure,  practically,  in  a  State  like  Rhode  Island,  where 


he  governor  by  blowing  his  horn  at  the  door  of  the  executive  man 
sion  can  summon  the  Legislature  as  the  farmer's  wife  calls  to  dinner 
•.he  hands  from  the  hay-field,  there  would  be  no  difficulty  in  sudden- 
y  supplying  the  vacancy  ;  but  for  the  great  State  of  Oregon,  where 
here  were  found  insuperable  difficulties  in  getting  the  Legislature 
ogether,  no  such  arrangement  would  be  either  wise  or  suitable. 

Now,  upon  an  examination  of  all  these  certificates  I  have  been 
quite  gratified  to  find  that,  although  these  operators  up  iu  Oregon 
were  aa  harmless  as  serpents,  they  were  also  no  wiser  than  doves. 
Nothing  has  been  done  there  that  defeats  the  Constitution  of  the 
Jnited  States,  that  defrauds  the  State  of  Oregon,  that  defeats  the 
jlectiou  of  President.  All  that  has  resulted  from  the  attempt  to  per- 
>etrate  and  consummate  a  fraud  is  to  exhibit  the  fraud  to  public 
;ondemnation;  but  the  safety  of  the  State  remains  unharmed. 

Mr.  MERRICK.  Mr.  President  and  gentlemen  of  the  Commission, 
t  would  certainly  be  extremely  grateful  to  me  if  I  could  pass  by  iu 
acquiescing  silence  the  expressions  of  satisfaction  which  the  learned 
counsel  who  last  addressed  you  was  pleased  to  use  at  the  supposed 
'act  that  we  of  counsel  who  have  been  conducting  these  cases  on  be- 
aalf  of  the  people  of  the  United  States  had  finally,  in  the  vicissitudes 
;o  which  the  cases  have  been  subjected,  come  to  believe  in  and  ac 
cept  as  the  law  of  the  land  those  principles  which  he  and  his  learned 
friends  had  advanced  iu  the  beginning  of  the  discussion  as  the  proper 
and  correct  rules  of  law  upon  which  the  matters  submitted  to  this 
Commission  should  be  solved  and  settled,  and  which,  as  he  claims,  has 
passed  into  the  judgments  of  this  tribunal.  I  do  not  wish  to  criticise 
Ihose  judgments  and  shall  refrain  from  any  such  unpleasant  office, 
but  when  «ny  personal  opinion  is  challenged  or  demanded,  I  should 
be  doing  a  gross  injustice  to  the  profession  and  to  myself  if  I  seemed 
to  acquiesce  in  the  accuracy  of  the  statement  made  by  the  counsel. 
I  wish  it  were  different ;  I  lament  that  the  statement  is  not  accurate 
in  every  particular,  for  surely  there  can  he  no  greater  sati  faction 
to  a  member  of  the  legal  profession  than  to  feel  that  in  the  discharge 
of  a  conscientious  duty  he  can  with  all  his  ability  and  all  his  efforts 
maintain  as  the  law  of  the  land  those  principles  that  have  passed  into 
solemn  adjudication,  whether  they  be  the  adjudications  of  courts  or 
the  adjudications  of  tribunals  exercising  the  highest  political  author 
ity  of  the  country.  For  myself,  as  to  these  principles  I  occupy  now 
the  same  position  in  reference  to  their  conformity  to  constitutional 
law  and  the  ordinary  rules  of  justice  that  I  did  when  I  entered  upon 
the  office  of  opening  the  debate  upon  the  case  of  the  State  of  Florida  ; 
but  I  must  accept,  I  am  compelled  to  accept,  whether  I  approve  or 
not,  the  judgment  of  those  tribunals  having  the  authority  to  pro 
nounce  judgment  in  the  premises;  and  in  the  argument  of  cases  before 
the  tribunal  by  which  those  judgments  have  been  pronounced,  aud 
before  which  they  must  be  respected,  it  becomes  my  duty  to  those  I 
represent  and  my  duty  to  myself,  and  my  duty  arises  from  respect  to 
the  tribunal  to  conform  my  arguments  and  positions  to  the  rules 
they  have  laid  down  and  adapt  them  as  far  as  possible  to  the  positions 
they  have  taken  ;  aud  therefore  in  the  argument  of  the  case  ot  Ore 
gon  I  shall  address  myself  to  this  tribunal  in  an  appeal  that  they 
shall  adhere  to  what  they  have  already  determined  and  to  give  to  Ore 
gon  and  apply  to  that  State  the  same  principles  they  have  determined 
and  applied  to  Florida  and  to  Louisiana. 

It  is  unquestionably  true  that  if  the  adjudications  referred  to  had 
the  acceptance  and  approval  of  the  whole  profession  of  the  country, 
you  would  have  accomplished  a  result  going  far  to  pacify  the  public 
mind,  aud  calm  the  agitations  of  the  public  heart,  but  nothing  you 
can  now  do  will  be  so  effectual  in  lashing  that  heart  into  a  higher  con 
dition  of  excitement  than  to  challenge  by  decisions  that  are  to  follow 
the  decisions  you  have  already  given. 

When  we  opened  the  discussion  upon  the  case  of  Florida  I  main 
tained  before  this  Commission  that  it  was  competent  for  you  in  the 
exercise  of  the  powers  vested  in  you  under  the  organic  act,  which 
made  you  the  recipient  of  all  the  powers,  whether  judicial  or  legis 
lative,'  in  this  particular,  possessed  and  capable  of  being  exercised  by 
the  two  Houses  of  Congress  conjointly  or  separately,  to  go  behind  the 
certificate  of  the  executive  of  the  State  upon  charges  of  mistake  or 
fraud.  I  speak  of  the  certificate  of  the  executive  of  the  State  au 
thorized  and  directed  by  the  Legislature,  the  Congress  of  the  United 
States.  In  the  case  of  Florida,  in  addition  to  claiming  for  this  tribu 
nal  the  power  claimed  to  the  power  referred  to,  wo  claimed  for  you 
the  further  power  to  give  heed  to  the  voice  of  the  State  herself  when, 
after  her  tones  had  been  simulated  by  those  not  authorized  to  speak 
for  her,  she  came  to  the  Federal  Government  through  the  different 
departments  of  her  State  government,  representing  the  fact  that  she 
had  not  been  truly  represented  in  the  electoral  college  and  asking 
you  to  hear  the  voice  of  her  people  as  testified  by  those  departments. 
Her  executive,  her  legislative,  aud  her  judicial  departments  came  be 
fore  you  and  asked  that  the  opinion  of  her  people  might  be  truly  re 
flected  in  the  estimate  to  be  made  by  the  sentiment  of  the  country 
upon  which  was  to  be  founded  the  title  to  the  succession  of  the  Presi 
dency  of  the  United  States. 

The  learned  counsel  on  the  other  side  took  issue  upon  these  posi 
tions,  and  this  tribunal  determined  that  there  was  no  authority  in 
this  organization  to  go  behind  the  certificate  of  the  governor  au 
thorized  by  the  act  of  Congress,  when  founded  upon  the  results  of 
the  canvassing  board  of  the  State.  But  I  have  always  been  at  a  loss 
to  know,  I  have  always  been  unable  to  discover,  where  the  tribunal 
learned  that  in  the  case  of  Florida  there  ever  had  been  a  canvass  of 


174 


ELECTORAL  COMMISSION. 


the  votes  of  that  State  by  any  board  other  than  that  which  was  au 
thenticated  in  the  certificate  of  the  so-called  Tilden  electors,  made 
under  the  authority  of  the  act  of  the  '27th  of  January,  1877,  and  I 
therefore  infer  that*  whatever  may  have  been  in  the  private  opinions 
of  the  Commissioners  the  significance  of  those  words  relating  to  the 
conformity  of  the  certificate  of  the  governor  to  the  results  of  the 
canvassing  board,  the  true  and  real  meaning  of  the  judgment  of  the 
tribunal  was  that  the  certificate  of  the  governor  was  the  conclusive 
fact,  the  ultimate  fact,  beyond  which  you  had  no  power  to  go. 

The  learned  counsel  who  opened  this  case  on  behalf  of  the  objectors 
to  certificate  No.  2  thought  proper  in  the  exercise  of  a  wise  and  dis 
criminating  judgment  as  to  the  merits  of  men,  to  pay  a  high  compli 
ment  to  his  distinguished  associate  who  has  just  addressed  the  Coin- 
mission.  I  fully  coincide  in  the  high  compliment  ho  thought  proper 
to  pay  to  that  distinguished  gentleman.  He  spoke  of  him  as  the 
modern  pilot  in  the  law,  equal  in  learning  and  wisdom  upon  its  vast 
sea  to  guide  safely  the  bark  of  professional  enterprise  at  whose  helm 
ho  was  placed  between  Scylla  and  Charybdis,  and  challenged  in  that 
behalf  the  fame  of  old  Paliuurus.  It  needed  no  disclosure  from  the 
counsel  on  the  other  side  to  satisfy  this  Commission  that  when  the 
bark  of  the  counsel  on  the  other  side  was  tossed  against  the  Scylla  of 
Florida  that  the  pilot  looked  ahead  to  the  Charybdis  that  threatened 
peril  in  Oregon.  It  was  apparent  from  the  discussion  that  such  was 
the  preconcerted  purpose  of  the  voyage,  and  now  it  is  established 
from  the  admission.  But  adroitly  as  he  may  have  led  on  his  way,  if 
this  Commission  adhere  to  the  course  to  which  the  helm  was  set  to 
shun  the  reefs  of  Florida,  the  bark  must  be  wrecked  on  those  of  Ore 
gon. 

Mr.  President  and  gentlemen  of  the  Commission,  looking  to  the  ex 
act  words  of  the  decision  in  the  case  of  Florida,  what  is  it  ? 

The  ground  of  tliis  decision,  stated  briefly  as  required  by  said  act,  is  as  follows: 
That  it  is  not  competent,  under  the  Constitution  and  the  law  as  it  existed  at  the 
date  of  the  passage  of  said  act,  to  go  into  evidence  aliunde  tho  papers  opened  by 
the  President  of  the  Senate  in  the  presence  of  the  two  Houses  to  prove  that  other 
persons  than  those  regularly  certified  to  by  the  governor  of  the  State  of  Florida 
on,  and  according  to,  the  determination  and  declarat  ion  of  their  appointment  by  the 
board  of  State  canvassers  of  said  State  prior  to  the  time  required  for  the  perform 
ance  of  their  duties  ha.d  been,  appointed  electors  or  by  counter-proot  to  show  that 
they  had  not. 

In  the  case  of  Louisiana  tho  same  identical  words  are  repeated  in 
the  decision.  Now,  are  wo  to  infer  that  there  is  any  particular  virtue 
in  the  decision  cither  of  the  return  ing  board  of  Florida  or  the  return 
ing  board  of  Louisiana  ?  Is  there  anything  particularly  sacred  in 
either  of  those  organizations,  and  so  powerful  as  to  prevent  intrusion 
from  the  Federal  Government  into  those  States,  or  to  check  you  in 
the  solemn  and  serious  inquiries  you  were  asked  to  make?  No;  the 
answer  has  been  given  by  the  learned  counsel  on  the  other  side  him 
self,  which  was  this:  that  when  the  United  States,  in  executing  the 
duty  confided  to  the  two  Houses  of  Congress  of  counting  the  votes 
for  President  and  Vice-President  of  the  United  States,  in  the  pro 
gress  of  their  inquiry  as  to  the  electoral  vote  of  the  State,  met 
with  an  authentication  from  that  State,  under  its  laws  they  were 
thereby  arrested  and  debarred  from  any  further  proceeding.  You 
may  pass  beyond  the  certificate  of  the  governor,  if  given  in  pursu 
ance  of  the  act  of  Congress,  for  that  certificate  is  not  given  in  the 
discharge  of  a  State  duty  confided  to  him  by  State  law,  but  that  cer 
tificate  is  given  in  response  to  what  purports  to  be  a  mandatory  act 
of  Congress,  but  what  in  fact  is  simply  a  Federal  request;  and 
which  is  given  in  recognition  of  request  and  under  the  rules  of  cour 
tesy  rather  than  from  the  obligations  of  law. 

But,  in  this  inquiry,  how  far  shall  you  go,  and  where  shall  you 
e:op  ?  You  go  behind  the  certificate,  as  you  have  decided,  until  you 
find  some  authentication  of  tho  fact  with  reference  to  which  you  are 
inquiring,  made  under  the  authority  and  by  virtue  of  a  power  in  the 
State  herself.  When,  in  the  case  of  Florida  and  Louisiana,  you  passed 
by  the  certificate  of  the  governor,  given  in  obedience  to  the  act  of 
Congress,  and  found  yourselves  confronted  with  the  results  of  a 
returning  board,  you  said,  "  Here  we  must  stop,  for  here  the  State 
has  challenged  Federal  power,  and  bade  it  take  no  further  step  in 
invading  the  State  and  the  matters  of  self-government."  It  was  not 
tho  result  of  the  canvass ;  it  was  not  any  virtue  in  tho  board ;  it  was 
not  because  of  any  sanctity  in  Wells  ortasanave  or  their  associates, 
but  it  was  because  when  you  reached  them  you  reached  the  broad 
seal  of  the  State,  affixed  as  evidence  to  a  State  fact,  under  State  law, 
and  by  State  authority. 

It  is  needless  for  me  to  say  that  the  greatest  difficulty  the  fathers 
of  this  Republic  encountered  in  the  organization  of  our  complex  sys 
tem  was,  so  to  adjust  its  relations  and  powers  that  community  inde 
pendence  might  be  preserved  in  the  Statr-6  and  local  self-government 
perpetuated  to  those  organizations,  and  under  such  limitations  and 
restrictions  that  while  this  power  was  left  unimpaired  there  should 
be  adequate  authority  given  to  tho  central  authority  of  the  Union 
to  deal  with  our  foreign  affairs,  and  preserve  and  perpetuate  tho 
combination  of  States  and  peoples  that  was  formed  under  the  Con 
stitution  of  the  United  States.  To  mark  that  dividing  line  between 
tho  States  and  the  Federal  Government  was  tho  most  difficult  office 
these  extraordinary  men  were  called  on  to  perform;  and  they  per 
formed  it  so  well,  so  wisely,  and  so  perfectly  that  perpetual  harmony 
and  perpetual  peace  would  reign  in  this  country  in  so  far  as  any  in 
ternecine  strife  could  ever  disturb  the  one  or  'the  other,  if  each  of 
these  great  powers,  the  Federal  Government  of  the  Union  and  the 


respective  local  governments  of  the  States,  would  move  in  their  re 
spective  orbirs  upon  which  they  were  propelled  by  the  fathers  of  the 
Republic.  In  regarding  the  respective  rights  of  these  political  organ 
izations  the  Federal  Government,  speaking,  as  I  understand  your 
decisions,  through  the  adjudications  of  this  tribunal,  has  said  that 
as  tho  appointment  of  the  electors  is  an  office  given  to  the  States  by 
specuil  grant  of  power,  or,  to  speak  more  correctly,  not  so  much  by 
tho  Federal  Government  as  by  a  stipulation  in  the  articles  of  co 
partnership  when  we  originally  considered  and  ultimately  developed 
them  in  the  Constitution ;  as  the  appointment  of  the  electors  is  a 
power  in  the  States,  aud  the  States  are  required  to  exercise  that 
power,  when  they  ha've  done  so  we  will  go  no  further  into  the  inquiry 
as  to  the  propriety  of  State  action  than  the  solemn  and  great  seal  of 
the  State  whenever  we  find  it  affixed  to  the  ultimate  fact  under  the 
authority  of  State  law,  and  by  the  sanction  of  the  State  organization. 

If  that  is  not  the  meaning  of  the  decision,  then  we  are  here  dealing 
with  the  smallest  matters  of  technical  law,  and  indulging  in  some 
thing  similar  to  pleas  and  replications  and  rejoinders  and  rebutters 
and  surrebutters  and  demurrers  indefinite,  and  settling  the  rights  of 
forty  million  people  upon  technicalities  and  subtleties  that  any  one  of 
the  distinguished  gentlemen  I  now  address  would  scout  and  discard  if 
introduced  into  his  court  in  any  case  involving  even  tho  smallest  and 
most  insignificant  right  or  sum  of  money.  Your  decision  must  rest, 
if  it  rests  at  all  in  the  confidence  of  the  people,  upon  tho  doctrine  of 
State  rights  as  compared  with  the  rights  of  the  Federal  Union.  It 
must  rest  in  the  confidence  of  the  people,  if  it  find  repose  in  their 
confidence  at  all,  upon  some  broad  piiuciple  which  they  can  compre 
hend  and  understand,  and  which,  comprehending  aud  understanding, 
they  will  recognize  and  accept,  and  even  in  the  anguish  of  their  dis 
appointment  welcome  aud  cherish  as  wise  :ind  judicious,  because  it 
comes  from  wise  and  judicious  men,  and  is  commended  by  sound  and 
broad  reasoning. 

But  if  these  questions  are  to  be  settled  upon  any  such  narrow  and 
technical  grounds  as  my  brothers  on  the  other  side  contend  for,  tho 
wound  which  this  Commission  was  organized  to  heal  in  the  nation 
they  will  only  make  bleed  the  freer ;  and  for  four  years  to  come  the 
American  people  while  submitting  to  legitimate  authority  will  recog 
nize  that  there  is  in  this  country  tho  anomalous  condition  of  a  Presi 
dent  de  facto  and  a  President  dejun-  though  not  in  office. 

I  was  pleased  at  first  to  hear  my  learned  brothers  on  tho  other  side 
commend  the  doctrine  of  State  rights  with  so  much  apparent  ear 
nestness  ;  but  I  felt  their  want  of  earnestness  and  sincerity,  and  as  I 
listened  to  their  disquisition  upon  this  subject  there  was  brought 
vividly  to  my  recollection  the  saddest,  grandest,  and  most  tran 
scendent  event  in  the  history  of  the  human  race.  They  took  him  and 
they  clothed  him  with  purple,  planted  as  the  insignia  of  royalty  a, 
crown  of  thorns  upon  his  brow  ;  they  put  a  reed  within  his  hand  for 
a  scepter,  and  fell  down  before  him  in  the  mockery  of  adoration. 
When  the  sacrifice  was  accomplished  the  veil  of  the  temple  was  rent 
and  darkness  was  spread  upon  the  face  of  tho  earth.  There  is  a  peo 
ple  to-day  scattered  over  the  world,  inhabitants  of  every  country,  but 
without  a  home  or  country  of  their  own. 

Mr.  President  aud  gentlemen  of  the  Commission,  in  what  particular 
does  the  law  of  Louisiana  or  tho  law  of  Florida,  in  reference  to  the 
ascertainment  of  the  result  of  the  appointment  of  electors,  differ  from 
the  law  of  Oregon  ?  By  the  law  of  Oregon  a  board  is  appointed  that 
is  required  to  canvass  the  returns  and  determine  tho  result.  Similar 
language,  but  hardly  so  strong,  is  used  in  tho  law  of  Louisiana.  Now. 
what  is  the  law  of  Oregon  upon  this  subject  ?  Section  00,  which  has 
been  frequently  read,  provides  : 

The  votes  for  tho  electors  shall  bo  given,  received,  returned  and  canvassed  aa 
the  same  arc  given,  returned,  and  canvassed  for  members  of  Congress. 

And  as  was  very  properly  remarked  by  one  of  the  learned  counsel, 
that  ends  that  paragraph  and  terminates  tho  duty  of  canvassing. 
The  secretary  of  state  shall  prepare  two  lists  of  the  names  of  the  electors — 

What  electors?  Not  those  that  have  received  tho  highest  number 
of  votes,  but — 

two  lists  of  Use  names  of  tho  electors  elected,  and  affix  tho  seal  of  tho  State  to 
tho  same.  Such  lists  shall  bo  signed  by  tho  governor  and  secretary,  and  by  tho 
latter  delivered  to  tho  college  of  electors  at  tho  hour  of  their  meeting  on  such  first 
Wednesday  of  December. 

Here  is  an  executive  duty  to  bo  performed.  The  electors  that  are 
elected  are  to  receive  this  certificate.  Who  is  to  determine  who  is 
elected  ?  Is  not  that  office  confided  to  the  parties  who  are  engaged  by 
the  mandate  of  the  law  in  this  transaction  f 

"  Prepare  the  lists  of  tho  names  of  those  who  are  elected."  They 
must  determine  who  are  the  parties  elected.  In  Florida  the  return 
ing  board  was  given  the  power  to  determine  the  result  and  required 
to  report  to  tho  office  of  secretary  of  state  in  Florida  all  the  votes 
taken,  giving  a  specific  account  of  those  they  deemed  proper  in  the 
exercise  of  their  questionable  jurisdiction  to  throw  out,  as  well  as  all 
others.  All  the  votes  sent  to  them  were  to  be  returned  or  lists  of  all 
the  votes  sent  to  them  were  to  bo  returned ;  but  this  tribunal  hold 
that  tho  power  of  determination  was  to  that  board.  Now  although 
the  word  "determine"  is  not  in  tho  section  quoted  from  tho  law  of 
Oregon,  yet  the  act  which  the  section  requires  to  be  performed  is  an 
act  which  cannot  bo  performed  unless  preceded  by  a  determination. 
The  lists  are  to  be  lists  of  the  electors  elected.  The  canvass  is  to  bo 
conducted  as  is  tho  canvass  for  members  of  Congress,  and  provision  is 


ELECTORAL  COMMISSION. 


175 


made  for  their  certificates.     The  act  as  to  the  canvass  for  members^of 
Congress  is  as  follows  : 

And  it  shall  be  the  duty  of  the  secretary  of  state,  in  (ho  presence  of  the  governor, 
to  proceed  within  thirty  days  after  the  election,  and  sooner  if  the  returns  be  all 
received,  to  canvass  the  votes  given  fur  secretary  and  treasurer  of  .st:itc,  State 
printer,  justices  of  the  supreme  court,  member  of  Congress,  and  district  attorneys ; 
and  the  governor  shall  grant  a  certificate  of  election  to  the  person  having  the  high 
est  number  of  votes,  and  shall  also  issue  a  proclamation  declaring  the  election  of 
such  person. 

lu  the  case  of  members  of  Congress  and  certain  State  officers  the 
provision  is  that  the  governor  shall  grant  a  certificate  or  a  coinmis- 
bion  to  the  person  having  the  highest  number  of  votes.  The  section 
that  relates  to  electors,  though  it  refers  to  the  section  relating  to 
members  of  Congress,  requires  the  canvass  to  be  conducted  as  was 
the  canvass  required  by  that  section,  yet  omits — and  omitting  in  the 
presence  of  the  thing  omitted  shows  that  it  was  before  their  minds — 
omits  the  requirement  that  in  the  section  in  reference  to  members  of 
Congress  which  requires  that  the  executive  should  perform  simply 
the  ministerial  office  of  giving  tbe  commission  to  the  party  who,  by 
the  enumeration  to  be  made  by  the  secretary  of  state,  should  be 
shown  to  have  the  greatest  number  of  votes. 

I  submit,  in  this  connection,  that  to  withhold  the  commission  or 
1o  withhold  the  certificate  from  a  party  deemed  by  the  governor  to 
be  ineligible  to  the  office  is  the  legitimate  performance  of  a  constitu 
tional  and  proper  executive  trust.  This  Commission  has  told  us  that 
the  State  cannot  interfere  with  an  elector,  whether  he  bo  eligible  or 
ineligible;  whether  his  election  be  secured  by  fair  means  or  foul 
means  after  the  time  when  he  has  cast  his  vote.  You  have  further 
told  us  that  it  cannot  be  interfered  with  except  between  the  time  of 
the  conclusion  of  the  returning  board  and  the  time  of  his  voting, 
which,  in  Florida,  was,  I  believe,  some  six  hours,  aud  in  Louisiana 
some  four  or  five.  The  State  of  Oregon,  seeking  to  perform  her  duty, 
and  its  much-abused  executive  seeking  to  protect  that  State  from 
the  odium  of  having  wantonly  violated  the  Constitution  of  the 
United  States,  when  the  subject  of  the  election  of  these  electors  came 
before  him,  entered  upon  the  consideration  of  the  matter  which  he 
and  he  alone  could  consider  and  determine,  and  the  State  by  the  only 
power  at  her  command  at  that  time — the  time  to  which  she  was  lim 
ited  by  your  decision — has  solemnly  determined  that  one  who  claimed 
to  be  elected  an  elector  was  not  elected. 

I  beg  to  refer  you,  gentlemen  of  tho  Commission,  upon  the  subject 
of  the  executive  duty  in  that  regard,  to  the  thirty-ninth  volume  of 
Missouri  Reports,  page  39'.).  I  shall  not  have  an  opportunity  of  read 
ing  largely  from  these  authorities;  but,  as  the  President  of  this  Com 
mission  remarked  yesterday,  the  Commission  has  no  opportunity  to 
examine  them  after  the  argument,  and  they  must  therefore  rely  upon 
counsel  for  whatever  information  they  have  in  regard  to  them.  The 
case  is  that  of  Bartley  vs.  Fletcher,  Governor: 

The  governor  is  bound  to  ace  that  the  laws  are  faithfully  executed,  and  he  has 
taken  an  oath  to  support  tho  Constitution. 

By  the  laws  of  Oregon,  which  my  brother  Hoadly  hands  me  to  read 
to  the  Commission,  I  find  a  moro  careful  provision  than  is  to  be  found 
in  most  of  the  States  of  the  Union : 

The  organic  law  is  the  Constitution  of  the  United  States  and  of  this  State,  and  is 
altogether  written.  Other  written  laws  are  denominated  statutes.  The  written 
law  of  this  State  is,  therefore,  contained  in  its  constitution  aud  statutes  and  in  the 
Constitution  and  statutes  of  the  United  States. — Section  712,  page  253. 

Oregon,  therefore,  in  her  reverence  for  the  supreme  law  of  the 
United  States,  has  not  allowed  her  obligation  to  the  Constitution 
of  the  United  States  to  rest  only  on  its  authority  as  the  Constitution  of 
tho  Federal  Government,  but  she  has  incorporated  it  into  her  own 
laws  and  made  it  a  part  of  her  State  system  of  laws  ;  and  the  governor, 
having  taken  his  oath  to  take  care  that  tho  laws  be  faithfully  execu 
ted,  as  required  by  her  constitution,  when  a  candidate  for  elector 
comes  before  him  demanding  a  certificate  of  the  fact  that  he  is  au 
elector  under  the  broad  seal  of  that  State,  having  duo  regard  to  his 
oath  and  reverence  for  tho  Constitution  of  tho  United  States,  and 
being  satisfactorily  informed  that  such  applicant  is  by  the  Constitu 
tion  of  the  United  States  inhibited  from  holding  the  appointment  or 
being  appoiuted,is  compelled  to  refuse  to  certify  to  a  statement  which 
would  be  a  falsehood,  and  therefore  in  direct  violation  of  both  the 
Constitution  of  the  United  States  and  the  constitution  of  Oregon  and 
his  oath  as  governor  of  Oregon. 

Gentlemen  talk  about  simulated  virtue,  aud  the  learned  counsel 
went  on  to  speak  of  our  simulating  virtue,  and  condemning  the  gov 
ernor  of  Oregon,  and,  I  may  remark,  went  further,  and  I  regretted  to 
hear  him  as  he  proceeded.  There  are  few  men  iu  the  profession  for 
whom  I  have  a  higher  respect,  and  it  paiued  me  to  hear  his  unbe 
coming  intimations  of  conspiracies  in  Gramercy  Park,  and  various 
telegrams  between  Oregon  and  New  York.  He  stated  that  no  such 
evidence  had  been  offered ;  but,  with  significant  intimations,  indi 
cated  what  he  might  have  done  if  such  evidence  had  been  in  the 
case.  Had  you  offered  it,  gentlemen,  we  should  have  interposed  no 
objection  to  its  introduction.  Wo  should  have  welcomed  it  and  re 
joiced  at  it.  We  have  been  seeking  for  the  truth  and  nothing  but 
the  truth,  and  begged  for  evidence  from  the  beginning.  A  fling  at 
tis  and  those  we  represent,  made  under  the  pretexts  of  testimony  not 
even  offered,  hardly  reaches  the  dignified  plane  of  professional  honor 
upon  which  we  supposed  wo  all  stood  in  the  conduct  of  this  great  de 
bate. 

The  governor  of  Oregon  could  not  have  given  the  certificate  to  an 


ineligible  candidate  without  violating  his  oath  and  being  guilty  of 
an  infraction  of  the  Federal  Constitution.  Let  me  read  further  from 
the  case  in  39  Missouri  Reports : 

In  the  correct  and  legitimate  performance  of  his  duty  he  must  inevitably  have  a 
discretion  in  regard  to  granting  commissions;  for  should  a  person  bo  ejected  or 


he  is  made  the  violator  of  the  constitution,  not  its  guardian.    Of  what  avail,  then, 
is  his  oath  of  office  .' 

Need  I  pursue  that  inquiry  further  ?  Need  I  go  on  to  the  subse 
quent  decisions  of  that  State  and  show  to  this  Commission  that  that 
opinion  stands  as  the  unreversed  law  of  that  State  to-day  ?  Although 
the  counsel  on  the  other  side  referred  to  an  opinion  as  tending  to 
change  and  modify  the  ruling  I  have  read,  I  would,  had  I  time  left 
me,  analyze  it  and  show  to  the  Commission  that  the  case  referred  to 
in  no  way  changes  the  law  as  pronounced  in  the  opinion  read,  and 
that  this  law  is  to-day  the  law  of  Missouri ;  it  is  the  law  of  Indiana  ; 
it,  is  the  law  of  Massachusetts;  and  the  governor  of  that  State,  in  tho 
exercise  of  his  functions,  may  withhold  a  certificate,  and  refuse  to  fix 
the  broad  seal  of  the  State  when  the  party  claiming  it  is  not  capable 
of  being  appointed  to  the  office,  title  to  which  it  would  evidence. 

Now,  suppose  that  the  governor  issues  his  certificate,  what  is  the  ef 
fect  of  that  certificate  when  issued  f  When  he  has  exercised  his 
power,  and  issued  his  certificate,  and  affixed  the  seal  of  the  State  to 
the  certificate,  that  certificate  so  accompanied  by  the  seal  is  conclu 
sive  evidence  of  the  title  and  cannot  be  questioned  except  in  a  regu 
lar  legal  proceeding  for  the  purpose  of  invalidating  the  commission. 
As  the  counsel  on  the  other  side  have  correctly  said,  when  wo  en 
tered  into  this  inquiry  and  this  investigation,  we  asked  that  this  tri 
bunal  should  proceed  as  though  exercising  the  powers  of  a  court-un 
der  a  quowarraitto,  and  search  all  tho  facts  to  the  very  bottom.  But 
he  was  iu  error  when  he  said  that  tho  argument  of  inconvenience 
came  from  our  side,  and  that  Mr.  O'Conor  had  stated  that  we  could 
stop  at  a  certain  point,  and  suggested  that  it  would  be  convenient  in 
your  discretion  to  stop  at  a  certain  period  of  the  investigation.  Tho 
argument  of  inconvenience,  in  order  that  you  might  thereby  be  in 
duced  not  to  make  the  inquiries  the  people  hoped  you  desired  for  and 
should  make,  came  from  my  learned  friend  who  now  sits  upon  my 
right,  [Mr.  Evarts,]  and  was  pressed  with  oil  his  great  powers  of  logic 
aud  eloquence;  and  to  meet  that  argument  we  replied  that,  if  you 
found  it  so  inconvenient  that  yon  could  not  investigate  all  tho 
facts,  there  was  a  discretionary  power  in  the  exercise  of  which  you 
could  limit  the  scope  of  the  inquiry. 

This  certificate  when  issued  is  conclusive  evidence  of  tho  title,  only 
to  be  impeached  by  a  judicial  proceeding,  as  I  have  indicated.  Such 
was  the  decision  of  the  court  of  hvst  resort  in  Massachusetts  upon 
questions  submitted  to  it  by  the  executive  department  of  the  govern 
ment.  Other  authorities  to  the  same  effect  will  be  found  iu  the  brief 
which  has  been  handed  to  you  ;  and  I  am  constrained,  I  regret  to  say, 
from  tho  quick  passage  of  my  time  to  leave  that  subject  thus  super 
ficially  considered. 

Mr.  Commissioner  HOAR.  Mr.  Merrick,  is  there  a  Massachusetts 
decision  of  the  supreme  court  on  that  question  ?  Was  not  that  in 
Maine  ? 

Mr.  MERRICK.    There  is  one  in  Massachusetts  as  well  as  in  Maine. 

Mr.  Commissioner  HOAR.  I  remember  now;  there  is  one  in  117 
Massachusetts. 

Mr.  MERRICK.  One  hundred  and  seventeen  Massachusetts.  Shall 
I  pass  it  to  the  Commissioner  T 

Mr.  Commissioner  HOAR.  I  remember  it  very  well.  I  have  read 
it.  I  thought  you  alluded  to  another  one. 

Mr.  MERRICK.     The  language  is: 

The  nature  of  tho  duties  thus  imposed  aud  the  very  terms  of  tho  statute  show 
that  they  aro  to  be  performed  without  unnecessary  delay,  and  the  certificate  issued 
by  tho  governor  to  any  person  appearing  upon  such  examination  to  bo  elected  is 
the  final  aud  conclusive  evidence  of  the  determination  of  the  governor  and  council 
as  to  his  elect  ion. 

The  learned  counsel  upon  the  other  side,  in  order  to  derogate  from 
tho  effect  of  the  certificate  and  the  seal,  refers  the  Commission  to  tho 
case  of  the  United  States  vs.  Le  Baron,  iu  19  Howard,  from  which  ho 
quoted  a  single  sentence.  I  looked  at  the  book  and  found  it  to  bo  an 
authority  in  direct  opposition  to  tho  point  for  which  it  was  quoted 
upon  the  other  side : 

When  a  person  has  been  nominated  to  an  office  by  the  President,  confirmed  by  the 
Senate  aud  his  commission  lias  been  sillied  by  tho  President,  and  the  seal  of  the 
United  States  affixed  thereto,  his  appointment  to  that  office  ia  complete. 

The  sentence  quoted  by  the  counsel  on  the  other  side  was  this: 

The  transmission  of  the  commission  to  the  officer  is  not  essential  to  his  investiture 
of  the  office. 

We  were  left  to  infer  that  tho  word  "  transmission"  included  every 
thing  that  appertained  to  the  executiou  and  the  issuing  of  the  com 
mission. 

The  following  sentence  is : 

If  by  any  inadvertence  or  accident,  it  should  fail  to  reach  him,  his  possession  of 
the  office  is  as  lawful  as  if  it  were  in  his  custody. 

The  PRESIDENT.     Who  gave  tho  opinion  ? 

Mr.  MERRICK.    Mr.  Justice  Curtis  gave  the  opinion. 

It  is  but  evidence  of  those  acts  of  appointment  and  qualification  which  const'- 
tuto  his  title,  and  which  may  be  proved  by  other  evidence,  whore  the  rule  of  law 
requiring  the  best  evidence  does  not  prevent. 


176 


ELECTORAL  COMMISSION. 


The  governor  issued  bis  certificate  to  Cronin  and  two  other  so-cnlled 
Hayes  electors.  Cronin  held  his  certificate,  and  by  virtue  of  that 
certificate,  whether  rightfully  ov  wrongly  issued,  I  respectfully  sub 
mit  that  he  was  an  officer  de  facto  ;  and  I  was  gratified  to  hear  the 
reply  of  the  honorable  counsel  on  the  other  side  to  the  question  sub 
mitted  by  Mr.  Commissioner  MORTOX,  I  think,  as  to  whether  or  not, 
if  there  was  any  officer  da  facto  in  the  actual  possession  of  the  office, 
there  could  be  a  vacancy?  Counsel  replied  promptly  there  could 
not.  Who,  then,  was  the  incumbent  of  this  office  ?  Who  had  the 
office  on  the  day  that  the  electors  voted,  Crouin  or  Watts  ?  Cronin 
held  the  certificate  with  the  broad  seal  of  the  State  attached  to  it. 
He  had  the  muniment  of  title  to  the  office,  that  which  by  the  act  of 
Congress  is  made  the  muniment  of  title  or  evidence  and  that  which  is 
made  evidence  or  a  muniment  of  title  by  the  law  of  the  State.  What 
had  Watts?  says  the  learned  counsel  on  the  other  side  in  considering 
the  evidence  of  title.  Watts  had  a  certificate  from  the  secretary  of 
state  as  to  the  canvass  of  the  votes.  What  is  it  ?  Concede  for  a 
moment  that  there  is  in  this  certificate  No.  1  a  duly  certified  copy  of 
some  record  in  the  office  of  the  secretary  of  state,  what  does  it  pur 
port  to  be  ?  It  is  headed  : 

Abstract  of  votes  cast  at  the  presidential  election  held  in  the  State  of  Oregon 
November  7,  1676,  foi-  presidential  electors. 

"  Abstract  of  votes,"  not  the  canvass  of  the  votes.  The  learned 
counsel,  in  order  to  make  it  appear  that  "abstract"  and  "canvass" 
were  synonymous  terms,  referred  back  to  the  statutes  of  Oregon  which 
required  the  clerks  at  the  voting  precincts  to  make  out  certain  ab 
stracts  and  send  them  up  to  the  secretary  of  state.  This  is  the  result 
of  those  abstracts  so  sent  up  by  the  clerks,  and  of  which  abstracts  the 
law  of  Oregon  is  speaking  when  it  requires  the  secretary  of  state  and 
the  governor  to  canvass.  When  they  have  canvassed  these  abstracts 
their  canvass  makes  another  paper,  which  should  be  a  paper  of  record 
in  that  office,  and  which  is  not  here  in  this  certificate. 

I  hereby  certify  that  the  foregoing  tabulated  statement  is  the  result  of  the  vote 
cast  for  presidential  electors. 

"Is  the  result  of  the  vote  cast."  He  certifies  to  results,  not  that  it 
is  a  paper  on  file  purporting  to  reflect  the  canvass  as  made,  but  that 
it  is  the  result  of  the  vote  cast  for  presidential  electors  at  a  general 
election.  Again : 

I,  S.  F.  Chadwick,  secretary  of  the  State  of  Oregon,  do  hereby  certify  that  I  am 
the  custodian  of  the  great  seal  of  the  State  of  Oregon  ;  that  thu  foregoing  copy  of 
the  abstract  of  votes  cast  at  the  presidential  election  held  in  the  State  of  Oregon, 
November  7,  1876,  for  presidential  electors,  has  been  by  me  compared  with  the 
original  abstract  of  votes  cast  for  presidential  electors. 

What  "  abstract  of  votes  ?"  The  abstract  of  votes  that  my  learned 
brother  found  called  for  by  a  preceding  section  of  the  law  anterior 
to  that  which  refers  to  the  secretary  of  state,  namely,  the  abstract 
that  is  to  be  sent  up  by  the  clerks  who  officiate  in  that  capacity  at 
the  precinct  elections  ;  not  the  canvass  of  the  votes  which  the  law 
requires  to  be  made  by  the  secretary  of  state  in  the  presence  of  the 
governor. 

Mr.  Commissioner  MILLER.  Mr.  Merrick,  let  me  ask  you  whether, 
if  that  paper  contains  all  the  abstracts  of  votes  sent  up  by  the  clerk 
of  each  county,  it  is  not  all  that  the  secretary  had  before  him,  and 
all  that  he  could  compare  I  What  other  paper  could  he  make  ? 

Mr.  MERRICK.  He  could  make  his  abstract  of  votes.  May  it 
please  your  honor,  in  my  experience  in  these  cases  I  have  found  that 
officers  discharging  duties  corresponding  to  that  imposed  by  the  stat 
utes  of  Oregon  upon  the  secretary  of  state  could  make  other  and 
very  remarkable  papers. 

Mr.  Commissioner  HOAR.  I  should  like  to  ask  you  one  question, 
if  you  please,  in  that  connection,  Mr.  Merrick.  When  they  opened 
and  canvassed  the  vote,  what  else  would  their  conclusion  be  but  a 
result  ?  What  would  be  worked  out  by  the  canvass  ?  Then  is  not  the 
word  "  result "  a  correct  expression  used  to  express  the  legal  conclu 
sion  or  determination  or  whatever  the  canvass  brings  them  to.  When 
they  certify  that  this  is  the  result,  do  they  not  certify  that  this  is  the 
conclusion  to  which  this  canvassing  board  have  come  ? 

Mr.  MERRICK.  I  do  not  so  understand.  I  understand  there  is 
great  force  in  the  suggestion  of  Mr.  Commissioner  HOAR,  as  there  is 
force  in  all  that  ho  says,  but  I  do  not  understand  that  we  can  substi 
tute  in  such  papers  as  these  one  word  for  another,  and  put  in  some 
expression  that  may  enable  us  to  give  to  them  an  easy  and  satisfac 
tory  construction.  I  understand  that  we  must  take  the  language  as 
we  find  it,  and  that  as  the  statutes  of  Oregon  use  the  word  "  canvass" 
when  speaking  of  the  secretary  of  state,  and  use  the  term  "  abstract 
of  votes  "when  speaking  of  clerks  officiating  at  the  precinct  elec 
tions,  the  "canvass"  is  something  different  from  the  "abstract,"  and 
that  he  ought  to  certify  if  he  has  made  a  canvass,  and  you  want  to 
use  that  paper  iu  evidence  "that  this  is  the  canvass  I  made,"  and  not 
say  "  this  is  some  result  I  may  have  reached." 

Mr.  Commissioner  BRADLEY.    Is  not  the  canvass  an  act  ? 

Mr.  MERRICK.    A  canvass  is  an  act. 

Mr.  Commissioner  BRADLEY.  You  cannot  have  that  certified  on 
paper. 

Mr.  MERRICK.  You  cannot  have  the  exact  act,  but  you  may  have 
the  record  of  it,  the  evidence  of  it. 

Mr.  Commissioner  BRADLEY.  Is  not  that  what  is  meant  in  this 
certificate  ? 

Mr.  MERRICK.  I  think  not.  If  it  had  been  what  he  meant,  he 
•would  have  said  "  this  is  the  canvass  of  the  votes  as  made."  As  Mr. 


Justice  MILLER  suggests,  it  is  probably  true  that  we  have  before  us 
here  what  the  secretary  had  before  him  ;  but  that  is  not  what  this 
tribunal  wants. 

Mr.  Commissioner  MILLER.  Mr.  Merrick,  if  there  is  anything  in 
that  idea,  I  want  you  to  tell  me  what  you  mean  by  a  canvass. 

Mr.  MERRICK.     I  mean  a  sifting  of  the  votes. 

Mr.  Commissioner  MILLER.  That  is  the  act  to  be  done ;  but  what 
record  on  earth  ever  would  be  made  of  it  but  the  putting  in  of  the 
votes  that  were  canvassed  and  showing  the  result  ?  Explain  what 
other  thing  there  could  be  about  it. 

Mr.  MERRICK.  I  will  explain  it  if  I  can.  I  am  required  to  can 
vass  certain  abstracts  of  votes  that  you  give  me.  When  I  have  sifted 
those  votes  that  you  have  given  me,  I  make  a  record  of  what  I  have 
done  with  them.  Here  are  the  votes  you  gave  me  to  canvass,  and 
here  is  the  record  of  my  act. 

Mr.  Commissioner  EDMUNDS.  Mr.  Merrick,  you  will  notice  at  the 
top  it  is  called  an  abstract  and  at  the  foot  it  is  said: 

I  hereby  certify  that  the  foregoing  tabulated  statement  is  the  result  of  the  vote 
cast  *  *  "  as  opened  and  canvassed  in  the  presence  of  his  excellency  L.  F. 
Grover,  governor. 

Mr.  MERRICK.  It  is  "  the  result  of  the  vote."  It  is  not  the  can 
vass  ;  it  the  result  of  that  canvass. 

Mr.  Commissioner  EDMUNDS.  The  inquiry  I  wish  to  put  is  this: 
It  is  stated  at  the  bottom  that  the  foregoing  is  a  statement.  Now 
what  I  wish  to  ask  you  is  whether  you  consider  that  paper  called  at 
the  top  an  abstract  and  at  the  bottom  a  statement  is  a  paper  that 
the  secretary  made  or  a  paper  that  came  from  the  county  clerks. 

Mr.  MERRICK.     It  is  the  result  of  the  votes,  not  of  the  canvass. 

Mr.  Commissioner  EDMUNDS.  But  who  do  you  understand  made 
that  thing  ?  Did  the  secretary  of  state  make  it,  or  did  the  county 
clerks,  as  you  understand  ? 

Mr.  MERRICK.  I  presume  the  secretary  of  state  reached  the  re 
sult. 

Mr.  Commissioner  THURMAN.  Mr.  Merrick,  let  me  ask  you  whether 
the  real  question  is  or  is  not  what  by  the  laws  of  Oregon  is  the  con 
clusive  evidence  of  the  canvass? 

Mr.  Commissioner  EDMUNDS.     That  is  another  question. 

Mr.  MERRICK.  I  have  dwelt  longer  with  this  subject  than  I  had 
intended  and  have  been  induced  to  do  so  by  some  inquiries  made  from 
the  Commission  during  the  progress  of  the  argument  on  the  other  side. 
The  real  question  at  issue,  as  suggested  by  Senator  THURMAN,  is  what 
is  made  by  the  laws  of  Oregon  the  conclusive  evidence  of  the  can 
vass.  Can  you  go  into  the  secretary  of  state's  office  and  get  out  a 
paper  and  have  it  certified,  however  solemnly,  and  set  it  up  as  against 
the  certificate  issued  by  the  governor  and  secretary  of  state  with  the 
seal  of  the  State  attached? 

The  counsel  on  the  other  side  have  complained  that  the  certificate 
issued  to  Cronin  and  his  associates  as  appeal's  in  certificate  No.  2  is 
not  the  certificate  required  by  the  law  of  Oregon,  and  I  beg  to  ask 
the  gentlemen  of  the  Commission  to  look  at  the  law  of  Oregon  as  it 
bears  on  this  certificate. 

The  secretary  of  state  shall  prepare  the  lists  of  the  names  of  the  electors  elec 
ted— 

Here  is  the  list — 

and  affix  the  seal  of  the  State  to  the  same. 
Here  is  the  broad  seal  of  the  State. 
Such  lists  shall  bo  signed  by  the  governor  and  secretary  of  state. 

Here  is  the  list  signed  by  the  governor  and  by  the  secretary  attest 
ing  the  fact  that  the  governor  signed  it.  The  secretary  made  it  out ; 
the  governor  signed  it ;  and  the  secretary  affixed  the  broad  seal  of 
the  State  to  it ;  and  I  submit  to  the  Commission  that  this  is  the  final 
and  conclusive  evidence  of  the  canvass  or  the  result  of  the  canvass  or 
the  result  of  the  votes  ;  the  final  and  conclusive  evidence  as  to  who 
was  entitled  to  exercise  and  perform  the  office  of  elector,  if  you  call 
it  an  office. 

Secondly,  I  submit  that  whether  rightly  done  or  wrongly  done, 
as  Cronin  held  that  certificate  with  that  seal  attached,  and  entered 
upon  that  office  as  the  certificate  here  shows  he  did,  the  office  was 
not  vacaut,  and  the  act  of  the  dejnre  officer  even  at  the  same  time,  he 
not  having  the  muniment  title,  could  not  countervail  and  nullify  his 
act. 

But  1  must  pass  to  another  question.  It  is  admitted  on  the  other 
side  that  the  original  title  held  by  Watts  was  not  a  valid  title.  Some 
suggestions  were  made  a  few  days  since  in  the  argument  of  a  previ 
ous  case  by  Mr.  Evarts  that  this  provision  of  the  Constitution  of  the 
United  States  was  not  self-executing,  and  some  similar  suggestions 
have  been  made  to-day  in  reference  to  the  same  point.  I  had  sup 
posed  that  all  reasonable  persons  had  settled  down  to  the  conviction 
that  this  provision  of  the  Federal  Constitution  was  self-executing. 
But  as  the  matter  is  again  brought  foward  I  beg  to  refer  the  Commis 
sion  to  the  case  of  Morgan  vs.  Vance,  in  4  Bush's  (Kentucky)  Reports, 
which  is  to  the  following  effect : 

So  far  as  the  Constitution  requires  of  all  officers  to  take  the  prescribed  oath,  and 
so  far  as  it  provides  disqualifications  upon  acts,  and  not  upon  judgment  of  convic 
tion,  the  Constitution,  as  the  supremo  law  of  tha  laud,  executes  itself  without  any 
extraneous  aid  by  way  of  legislation,  nor  can  its  requirements  be  so  defeated. 

Mr.  Commissioner  EDMUNDS.    How  did  the  case  arise? 
Mr.  MERRICK.    My  time  presses  and  I  must  pass  from  it ;  I  will 
hand  it  to  your  honor.     I  will  also  refer  the  Commission  to  Tauey's 


ELECTORAL  COMMISSION. 


Circuit  Court  Decisions,  published  by  Mr.  Campbell,  page  235.  There 
was  a  provision  in  the  constitution  of  Maryland  that  no  person  should 
charge  more  than  six  per  cent,  interest  upon  money,  and  that  the 
Legislature  should  make  appropriate  enactments  for  carrying  that 
provision  into  effect.  Chief-Justice  Taney  said : 

The  constitution  itself  makes  the  prohibition,  and  all  future  legislation  must  be 
subordinate  and  conformable  to  this  provision  :  "  "Whoever  takes  or  demands  more 
than  six  per  cent,  while  this  constitution  is  in  force,  does  an  unlawful  act ;  an  act 
forbidden  by  the  constitution  of  the  State." 

And  without  legislation  he  declared  the  contract  to  be  void. 

Upon  the  subject  of  vacancy  my  time  will  not  allow  me  the  oppor 
tunity  of  much  discussion,  if  any,  and  I  regret  it,  for  this  is  a  sub 
ject  that  I  should  like  to  have  considered  by  the  Commission  with 
some  degree  of  deliberation,  and  I  intended  to  address  your  honors' 
attention  to  the  various  authorities  that  have  reference  to  it.  I  re 
spectfully  submit  that  unless  an  office  has  been  once  filled  there  can 
be  no  vacancy,  and  unless  it  has  been  once  filled  there  can  be  no 
resignation  of  the  office.  The  Commission  will  bear  in  mind  that 
the  vacancy  claimed  to  be  filled  by  these  electors  was  a  vacancy 
created,  not  by  Cronin's  absence,  but  created  by  Watt's  resignation. 
If  they  had  the  power  to  fill  a  vacancy  at  all,  they  executed  that 
power  by  filling  a  vacancy  created  by  a  resignation  from  Watts,  and 
not  a  vacancy  created  by  the  non-action  of  Cronin.  Now,  if  Watts 
never  held  the  office,  Cronin  having  been  the  party  who  receives  the 
commission,  and  therefore  the  officer  de  facto,  having  received  conclu 
sive  evidence  of  his  title  from  the  State,  the  resignation  of  Watts 
was  unavailing  for  any  purpose.  I  refer  the  Commission  to  the 
People  iis.  Tiltou,  37  California  Reports,  617 ;  Miller  vs.  The  Super 
visors  of  Sacrarrento,  25  California  Reports,  93;  Broome  vs.  Hanley, 
9  Pennsylvania  State  Reports,  and  to  the  authorities  upon  page  20  of 
the  brief,  and  to  the  Corliss  case. 

The  United  States  statutes,  I  must  remark  in  this  connection,  pro 
vide  for  two  contingencies :  first,  the  contingency  of  a  vacancy,  and 
second,  the  contingency  of  a  non-election.  And  the  statutes  of  Oregon 
have  provided  only  for  the  contingency  of  a  vacancy,  and  not  for  the 
contingency  of  a  non-election.  But,  say  the  learned  counsel  on  the 
other  side,  the  word  "  otherwise  "  implies  all  vacancies,  and  they  re 
pudiate  the  maxim  nosdtur  a  sociis  in  reference  to  the  construction  of 
language.  Now,  what  is  the  language  of  the  statute  of  Oregon  ? 

Any  vacancy  occasioned  by  death,  resignation,  failure  to  act,  or  otherwise. 

Vacancy  "occasioned;"  not  any  vacancy  existing,  but  a  vacancy 
"occasioned."  What  is  the  meaning  of  the  word  "occasioned?" 
"  To  occasion "  signifies  to  produce.  Non-filling  of  an  office  at  the 
election  cannot  occasion  a  vacancy  if  it  was  vacant  before  the  elec 
tion  took  place.  That  could  not  be  occasioned  which  already  existed. 
But  that  which  already  existed  could  be  occasioned.  There  must 
have  been  an  existing  condition  upon  which  some  cause  operated  to 
produce  the  effect  before  you  can  say  that  such  effect  was  occasioned. 
If  no  change  ia  made  in  the  existing  condition,  there  is  no  room  for 
the  use  of  the  word  "occasioned"  and  nothing  to  which  it  can  ap 
ply.  To  occasion  signifies  to  produce  an  effect  incidentally.  It  is 
even  more  limited  than  the  word  "  cause."  To  cause  is  to  produce  an 
effect  in  the  ordinary  operations  of  human  affairs.  To  occasion  is  to 
produce  an  effect  by  some  incidental  circumstance.  When  the  stat 
ute  of  Oregon  said  that  a  vacancy  occasioned  by  certain  causes,  it 
meant  a  vacancy  effected  by  something  that  had  become  operative 
since  the  day  of  election,  not  in  the  ordinary  course  of  things,  and 
which  produced  a  condition  different  from  that  which  existed  prior 
to  the  commencement  of  its  operation. 

The  PRESIDENT.     The  time  allowed  has  expired. 

Mr.  Commissioner  GARFIELD.  I  move,  in  view  of  the  interrup 
tions,  that  ten  minutes  more  be  granted. 

The  motion  was  agreed  to. 

Mr.  MERRICK.  I  beg  to  extend  my  sincere  thanks  to  the  gentle 
man  for  the  courtesy,  and  it  will  enable  me  to  refer  to  one  or  two 
authorities  which  I  will  do  very  briefly.  An  authority  was  referred 
to  on  the  other  side  from  the  State  of  Maine,  in  the  thirty-eighth  vol 
ume  of  Maine  Reports,  for  the  purpose  of  showing  to  the  Commission 
that  a  failure  to  elect  according  to  the  laws  of  Maine  would  create  a 
vacancy,  and  it  was  either  stated  or  left  to  be  inferred  that  the 
statutes  of  Maine  in  reference  to  that  subject  were  similar  in  their 
provisions  to  the  statutes  of  Oregon.  The  case  is  in  38  Maine,  at 
page  598 : 

The  fourth  question  asked  was,  in  case  the  second  and  third  questions  should  be 
answered  in  the  negative  is  not  there  a  vacancy  in  said  office. 

There  had  been  in  that  case  a  failure  to  elect,  and  in  answering 
that  question  the  court  stated : 

The  undersigned,  therefore,  answers  the  first,  second,  and  third  questions  in  the 
negative,  and  the  fourth  in  the  affirmative. 

The  answers  declared  that  there  was  a  vacancy  in  the  office.  But 
when  I  look  back  to  the  statute  law  of  Maine  I  find  this  provision 
under  which  that  decision  was  given : 

In  011  cases  of  election  under  the  act  to  which  this  is  additional,  when  no  choice 
shall  have  been  effected  or  a  vacancy  shall  happen  by  death,  resignation,  or  other 
wise,  such  vacancy  shall  be  filled  by  the  governor  and  council. — Session  Laws  of 
1844,  page  84. 

This  is  the  authority  on  which  the  counsel  on  the  other  side  relied 
for  his  position  that  a  non-eitection  created  a  vacancy  and  he  brought 
it  to  his  support  in  this  behalf.  Looking  back  to  the  law  it  is  appar- 

12 


ent  that  the  authority  is  directly  adverse  to  the  position  which  the 
learned  counsel  used  it  to  maintain.  My  associate  suggests  that  I 
should  give  the  Commission  a  reference  to  the  post-office  law.  It  is 
in  the  Revised  Statutes,  section  3836,  providing  for  the  supplying  of 
vacancies  as  they  occur  in  the  office  of  postmaster. 

I  can  enter  upon  no  new  point  of  the  case  at  this  late  period  of  the 
argument,  though  there  are  two  or  three  I  much  desire  to  elaborate., 

Mr.  President  and  gentlemen  of  the  Commission,  I  must  submit  the 
case  upon  what  has  already  been  said.  In  closing  this  argument  I. 
respectfully  submit  that  I  claim,  and  I  claim  most  earnestly  that  you' 
give  to  Oregon  the  benefit  of  your  rulings  in  Louisiana  aiid  Florida* 
I  desire  that  in  this  case  you  should  adhere  to  the  spirit  and  principles* 
of  the  decisions  yon  have  rendered  in  the  cases  already  tried  and  de 
cided.  It  is  quite  unessential,  quite  immaterial,  whether  they  conform 
to  my  opinions  on  the  subject  of  constitutional  law  or  not,  and  quite 
immaterial  whether  they  conform  to  the  opinions  of  any  one  else 
upon  those  subjects.  They  have  been  rendered  by  this  tribunal,  re 
corded  upon  the  journals  of  both  Houses  of  Congress,  passed  into  the 
history  of  the  country,  and  are  in  operative  effect  in  the  process  now 
going  on  of  determining  who  shall  be  the  Chief  Magistrate  of  the 
Republic. 

These  opinions  will  be  accepted  or  rejected  by  the  people  of  the 
United  States  according  to  their  estimate  of  their  wisdom  and  sound 
ness  ;  but  this  people  will  not  pass  beyond  the  scrutiny  of  their  char 
acter  and  their  merits  unless  they  are  first  challenged  by  the  men  by 
whom  they  were  pronounced.  Consistent  adhesion  to  the  solemn  con 
clusions  reached  by  those  great  men  to  whom  the  people  have  com 
mitted  the  settlement  of  their  rights  is  essential  to  the  preservation 
of  loyal  respect  for  authority  and  character ;  and  while  mitigating 
the  pangs  of  disappointment  often  secure  an  acquiescence  in  judg 
ments  seemingly  the  harshest  and  the  most  unjust.  But  when  these 
judgments  antagonize  one  another,  and  in  their  very  conflict  and. 
antagonism  are  combined  in  operative  effect  to  accomplish  one  and 
.the  same  result,  and  that  result  is  one  with  which  individual  sympa 
thies  are  closely  and  warmly  connected,  unpleasant  thoughts  will 
stir  within  the  public  mind,  and  angry  emotions  will  swell  the  popu 
lar  heart. 

The  Supreme  Court  of  the  United  States  is  one  of  the  idols  of  the 
people.  They  have  in  their  estimate  of  its  character  invested  it  with 
a  sanctity  and  a  dignity  beyond  that  of  any  other  tribunal  on  the 
face  of  the  earth.  They  believe  that  all  other  Departments  of  the 
Government  are  liable  to  deterioration  and  possible  defilement;  but 
they  look  to  the  Supreme  Court  as  lifted  above  those  currents  of  im 
pure  air  that  float  upon  the  surface  of  the  world,  and  as  still  imbued 
by  the  virtues  and  speaking  with  the  wisdom  of  the  fathers  of  the 
Republic.  When  this  faith  is  destroyed,  the  night  will  have  come. 

Mr.  EVARTS.  Will  your  honors  allow  me  to  ask  attention  to  a 
case  in  53  Missouri,  page  111,  as  the  cases  in  that  State  are  so  much 
insisted  upon  ? 

Mr.  HOADLY.    The  State  vs.  Vail  ?    That  case  was  cited  before. 

Mr.  MERRICK.  It  was  cited,  and  I  referred  to  it  myself  as  not  in 
any  way  reversing,  although  explaining,  the  case  of  Missouri  that  I 
read  from. 

Mr.  EVARTS.    So  I  understood  the  learned  counsel. 

Mr.  MERRICK.     If  there  is  to  be  a  reply,  very  well. 

Mr.  EVARTS.  The  one  hundred  and  eleventh  page  is  on  this  pre- 
cisequestion  of  executive  authority  to  give  a  certificate  to  a  minority 
candidate  on  the  ground  that  the  majority  candidate  is  ineligible, 
and  it  denies  the  right. 

Mr.  HOADLY.  Excuse  me,  it  denies  the  right  except  in  cases 
which  are  patent,  upon  which  it  expressly  withholds  an  opinion  in 
so  many  words,  denies  the  right  in  cases  of  disqualification  personal 
to  the  candidate  and  latent. 

Mr.  MERRICK.  And  it  refers  to  the  case  in  14  Indiana,  Gulickvs. 
New,  with  approval,  upon  which  we  rest. 

Mr.  EVARTS.  The  section  referred  to  just  now  in  the  Revised 
Statutes  is  section  3836,  page  756. 

Mr.  Commissioner  EDMUNDS.    We  have  a  reference  to  it. 

Mr.  EVARTS.  The  tribunal  will  see  that  it  has  no  bearing  on  the 
question  whether  the  office  of  postmaster  was  vacant  or  not.  It  ex 
pressly  provided  that  if  it  is  vacant  the  sureties  may  remain  bound 
for  a  certain  time  afterward. 

Mr.  Commissioner  GARFIELD.  Mr.  President,  I  move  that  the 
public  session  of  the  Commission  be  closed  and  that  we  go  into  con 
sultation. 

The  motion  was  agreed  to. 

Mr.  Commissioner  THURMAN.  I  suggest  that  in  order  to  get  the 
room  in  good  condition  and  purify  the  air  we  had  better  take  a  re 
cess.  I  move  a  recess  for  half  an  hour. 

The  motion  was  agreed  to  at  four  o'clock  and  thirty  minutes  p.  m. 


The  recess  having  expired,  the  Commission  re-assembled  at  five 
o'clock  p.  m.  with  closed  doors. 

After  debate, 

Mr.  Commissioner  EDMUNDS  offered  the  following  resolution: 

Resolved,  That  the  certificate  signed  by  E.  A.  Cronin,  J.  N.  T.  Miller,  and  John 
Parker,  purporting  to  cast  the  electoral  votes  of  the  State  of  Oregon,  does  not  con 
tain  nor  certify  the  constitutional  votes  to  which  said  State  is  entitled. 

Pending  which, 


178 


ELECTORAL'  COMMISSION. 


On  motion  of  Mr.  Commissioner  ABBOTT,  it  was 

Ordered,  That  the  vote  on  the  matter  now  pending  be  taken  at  four  o'clock  p.  m. 
to-morrow. 

On  motion  of  -Mr.  Commissioner  HUNTON,  (at  seven  o'clock  and 
twenty-live  minutes,)  the  Commission  adjourned  until  to-morrow  at 
half-past  ton  o'clock  a.  m. 


FRIDAY,  February  23,  1877. 

The  Commission  met  at  ten  o'clock  and  thirty  minutes  a.  m.,  pursu 
ant  to  adjournment,  all  the  members  being  present  except  Mr.  Com 
missioner  TnURMAN. 

The  Journal  of  yesterday  was  read  and  approved. 

The  Commission  resumed  its  deliberations  on  the  matter  of  the 
electoral  vote  of  the  State  of  Oregon,  the  question  being  on  the  res 
olution  submitted  by  Mr.  Commissioner  EDMUNDS  yesterday. 

At  two  o'clock  and  twenty  minutes  p.  in.  Mr.  Commissioner  BAYARD 
presented  the  following  communication,  which  was  read : 

Hon.  T.  F.  BAYARD: 

DEAR  Sm :  Mr.  THURMAN  has  been  in  bed  all  morning,  and  is  now  suffering  from 
such  intense  pain  that  it  will  be  impossible  for  him  to  meet  the  Commission  to-day, 
llespectfully,  M.A.THTJKMAN. 

FRIDAY,  February  23, 1877. 

Mr.  Commissioner  HOAR  submitted  the  following  resolution : 

Resolved,  That  Senators  BAYARD  and  FRELINOHUYBEN  be  a  committee  to  call  at 
once  on  Mr.  THURMAN  to  learn  if  lie  will  consent  that  the  Commission  adjourn  to 
his  house  for  the  purpose  of  receiving  his  vote  on  the  question  relating  to  Oregon. 

The  question  being  on  the  adoption  of  the  resolution,  it  was  deter 
mined  in  the  affirmative : 

YEAS , 13 

NAYS 1 

Those  who  voted  in  the  affirmative  were :  Messrs.  Abbott,  Bayard, 
Bradley,  Clifford,  Edmunds,  Field,  Freliughuysen,  Garfield,  Hoar, 
Huntou,  Miller,  Payne,  and  Strong — 13. 

Mr.  Morton  voted  in  the  negative. 

On  motion  of  Mr.  Commissioner  STRONG,  (at  three  o'clock  p.  m.,) 
the  Commission  took  a  recess  for  half  an  hour. 

At  three  o'clock  and  forty-seven  minutes  p.  m.,  the  Commission 
having  resumed  its  session,  the  committee  appointed  to  wait  on  Mr. 
Commissioner  TIIUKMAN  returned  and  reported  that  he  would  receive 
the  Commission  at  his  house. 

Whereupon,  on  motion  of  Mr.  Commissioner  HOAR,  it  was 

Ordered,  That  the  Commission  now  proceed  to  the  house  of  Mr.  Commissioner 
THURMAN,  there  to  go  on  with  the  case  now  before  it. 

The  Commission  accordingly  proceeded  to  the  house  of  Mr.  Com 
missioner  THURMAN,  on  Fourteenth  street,  all  the  members  being 
present. 

The  Commission  was  there  called  to  order  by  the  President. 

The  question  being  on  the  resolution  of  Mr.  Commissioner  EDMUNDS, 

Mr.  Commissioner  FIELD  offered  the  following  as  a  substitute : 

Whereas  J.  "W.  Watts,  designated  in  certificate  No.  1  as  an  elector  of  the  State  of 
Oregon  for  President  and  Vice- President,  on  the  day  of  election,  namely,  the  7th  of 
November,  1876,  held  an  office  of  trust  and  profit  under  the  United  States :  Therefore, 

Resolved,  That  the  said  J.  W.  Watts  was  then  ineligible  to  the  office  of  elector 
within  the  express  terms  of  the  Constitution. 

The  question  being  on  the  adoption  of  the  substitute,  it  was  deter 
mined  in  the  negative : 

YEAS 7 

NAYS 8 

Those  who  voted  in  the  affirmative  were  :  Messrs.  Abbott,  Bayard, 
Clifford,  Field,  Hunton,  Payne,  and  Thurman — 7. 

Those  who  voted  in  the  negative  were :  Messrs.  Bradley,  Edmunds, 
Frclinghuysen,  Garfield,  Hoar,  Miller,  Morton,  and  Strong — 8. 

Mr.  Commissioner  FIELD  offered  the  following  substitute  for  the 
resolution : 

Whereas  at  the  election  hold  on  the  7th  of  November,  1876,  in  the  State  of  Ore- 
con,  for  electors  of  President  and  Vice-President,  W.  H.  Odell,  J.  W.  Watts,  and 
John  C.  Cartwright  received  the  highest  number  of  votes  cast  for  electors,  but  the 
said  Watts  then  holding  an  office  of  trust  and  profit  under  the  United  States,  was 
ineligible  to  the  office  of  elector :  Therefore, 

Resolved,  That  the  said  Odell  and  Cartwright  were  the  only  persons  duly  elected 
at  said  election,  and  there  was  a  failure  on  the  part  of  the  £>tate  to  appoint  a  third 
elector. 

The  question  being  on  the  adoption  of  this  substitute,  it  was  de 
termined  in  the  negative : 

YEAS 7 

NAYS 8 

Those  who  voted  in  the  affirmative  were :  Messrs.  Abbott,  Bayard, 
Clifford,  Field,  Hunton,  Payne,  and  Thurman — 7. 

Those  who  voted  in  the  negative  were :  Messrs.  Bradley,  Edmunds, 
Frelinghuysen,  Garfield,  Hoar,  Miller,  Morton,  and  Strong— 8. 

Mr.  Commissioner  FIELD  offered  the  following  as  a  substitute  for 
the  resolution : 

Whereas  the  Legislature  of  Oregon  has  made  no  provision  for  the  appointment  of 
an  elector  under  the  act  of  Congress  where  there  was  a  failure  to  make  a  choice  on 
the  day  prescribed  by  law  :  Therefore, 


Resolved,  That  the  attempted  election  of  a  third  elector  by  the  two  persons 
chosen  was  inoperative  and  void. 

The  question  being  on  the  adoption  of  this  substitute,  it  was  deci 
ded  in  the  negative  : 

YEAS 7 

NAYS 8 

Those  who  voted  in  the  affirmative  were :  Messrs.  Abbott,  Bayard, 
Clifford,  Hunton,  Payne,  and  Thurman— 7. 

Those  who  voted  in  the  negative  were :  Messrs.  Bradley,  Edmunds, 
Frelinghnysen,  Garfield,  Hoar,  Miller,  Morton,  and  Strong — 8. 

Mr.  Commissioner  BAYARD  offered  the  following  as  a  substitute : 

Resolved,  That  the  vote  of  W.  H.  Odell  and  the  vote  of  J.  C.  Cartwright,  cast  for 
Rutherford  B.  Ilayes,  of  Ohio,  for  President  of  the  United  States,  and  for  William 
A.  Wheeler,  of  New  York,  for  Vice-Presidont  of  the  United  States,  are  the  votes 
provided  for  by  the  Constitution  of  the  United  States,  and  that  the  aforesaid  Odell 
and  Cartwright,  and  they  only,  were  the  persons  duly  appointed  electors  in  the  State 
of  Oregon  at  the  election  held  November  7,  A.  D.  1870,  there  having  been  a  failure 
at  the  said  election  to  appoint  a  third  elector  in  accordance  with  the  Constitution 
and  laws  of  the  United  States  and  the  laws  of  the  State  of  Oregon  ;  and  that  the  two 
votes  aforesaid  should  be  counted,  and  none  other,  from  the  State  of  Oregon. 

The  question  being  on  the  adoption  of  this  substitute,  it  was  de 
cided  in  the  negative : 

YEAS 7 

NAYS... 8 


Those  who  voted  in  the  affirmative  were :  Messrs  Abbott,  Bayard, 
Clifford,  Field,  Hunton,  Payne,  and  Thurman — 7. 

Those  who  voted  in  the  negative  were  :  Messrs.  Bradley,  Edmunds, 
Frelinghuyseu,  Garfield,  Hoar,  Miller,  Morton,  and  Strong — 8 

The  question  recurring  on  the  original  resolution  offered  by  Mr. 
Commissioner  EDMUNDS,  as  follows  : 

Resolved,  That  the  certificate  signed  by  E.  A.  Cronin,  J.  N.  T.  Miller,  and  John 
Parker,  purporting  to  cast  the  electoral  votes  of  the  State  of  Oregon,  does  not  con 
tain  nor  certify  the  constitutional  votes  to  which  said  State  is  entitled — 

It  was  determined  in  the  affirmative  : 

YEAS 15 

NAYS , 0 

Those  who  voted  in  the  affirmative  were  Messrs.  Abbott,  Bayard, 
Bradley,  Clifford,  Edmunds,  Field,  Frelinghuysen,  Garfield,  Hoar,  Hun 
ton,  Miller,  Morton,  Payne,  Strong,  and  Thurman. 

Mr.  Commissioner  MORTON  offered  the  following  resolution : 

Resolved,  That  W.  IT.  Odell,  John  C.  Cartwright,  and  John  W.  Watts,  the  per 
sons  named  as  electors  in  certificate  No.  1,  were  the  lawful  electors  of  the  State  of 
Oregon,  and  that  their  votes  are  the  votes  provided  for  by  the  Constitution  of  the 
United  States,  and  should  be  counted  for  President  and  Vice-President  of  the  United 
States. 

Mr.  Commissioner  HUNTON  moved  to  amend  the  resolution  by 
striking  out  the  name  of  John  W.  Watts ;  and  the  question  being  on 
this  amendment,  it  was  decided  in  the  negative : 

YEAS '- 7 

NAYS.., 8 

Those  who  voted  in  the  affirmative  were  Messrs.  Abbott,  Bayard, 
Clifford,  Field,  Hunton,  Payne,  and  Thurman— 7. 

Those  who  voted  in  the  negative  were  Messrs.  Bradley,  Edmunds, 
Frelinghuysen,  Garfield,  Hoar,  Miller,  Morton,  and  Strong — 8. 

The  question  recurring  on  the  original  resolution  of  Mr.  Commis 
sioner  MORTON,  it  was  decided  in  the  affirmative. 

YEAS 8 

NAYS 7 

Those  who  voted  in  the  affirmative  were  Messrs.  Bradley,  Edmunds, 
Frelinghuysen,  Garfield,  Hoar,  Miller,  Morton,  and  Strong — 8. 

Those  who  voted  in  the  negative  were  Messrs.  Abbott,  Bayard, 
Clifford,  Field,  Hunton,  Payne,  and  Thurman— 7. 

Mr.  Commissioner  EDMUNDS  submitted  the  following : 

Ordered,  That  the  following  bo  adopted  as  the  final  decision  and  report 'in  the 
matters  submitted  to  the  Commission  as  to  the  electoral  vote  of  the  State  of  Oregon : 

ELECTORAL  COMMISSION, 
Washington,  D.  O.,  February  33,  A.  D.  1877. 

To  the  President  of  the  Senate  of  the  United  States,  presiding  in  the  meeting  of  t  ho 
two  B  ouses  of  Congress,  under  the  act  of  Congress  entitled  "  An  act  to  provide  for 
and  regulate  the  counting  of  votes  for  President  and  Vice-President,  and  the  de 
cision  of  questions  arising  thereon,  for  the  term  commencing  March  4,  A.  1>. 
1877,"  approved  January  29,  A.  D.  1877. 

The  Electoral  Commission  mentioned  in  said  act  having  received  certain  certifi 
cates  and  papers  purporting  to  be  certificates,  and  papers  accompanying  the  same, 
of  the  electoral  votes  from  the  State  of  Oregon,  and  the  objections  thereto,  sub 
mitted  to  it  under  said  act,  now  report  that  it  has  duly  considered  the  same,  pur 
suant  to  said  act,  and  has  by  a  majority  of  votes  decided,  and  does  hereby  decide, 
that  the  votes  of  W.  H.  Odell,  J.  C.  Cartwright,  and  J.  W.  Watts,  named  in  the 
certificate  of  said  persons  and  in  the  papers  accompanying  the  same,  which  votes 
are  certified  by  said  persons  as  appears  by  the  certificates  submitted  to  the  Com 
mission  as  aforesaid  and  marked  "  No.  1,  N.  C.  "  by  said  Commission,  and  herewith 
returned,  are  the  votes  provided  for  by  the  Constitution  of  the  United  States,  and 
that  the  same  are  lawfully  to  be  counted  as  therein  certified,  namely :  three  votes 
for  Eutherford  B.  Hayes,  of  the  State  of  Ohio,  for  President,  and  three  votes  for 
William  A.  Wheeler,  of  the  State  of  New  York,  for  yico-President. 

The  Commission  has  by  a  majority  of  votes  also  decided,  and  does  hereby  decide 
and  report,  that  the  three  perso'ns  first  above  named  were  duly  appointed  electors 
in  and  by  the  State  of  Oregon. 
The  brief  ground  of  this  decision  is  that  it  appears,  upon  such  evidence  as  by  the 


ELECTORAL)  COMMISSION, 


179 


Constitution  and  the  law  named  in  said  act  of  Congress  la  competent  and  pertinent 
to  the  consideration  of  the  subject,  that  the  beforementioned  electors  appear  to 
have  been  lawfully  appointed  such  electors  of  President  and  Vice-President  of  the 
United  States  for  the  term  beginning  March  4,  A.  D.  1877,  of  the  State  of  Oregon, 
and  that  they  voted  as  snch  at  tho  time  and  in  the  manner  provided  for  by  the  Con 
stitution  of  tho  United  States  and  the  law. 

And  we  are  further  of  opinion  that  by  the  laws  of  the  State  of  Oregon  the  duty 
of  canvassing  tho  returns  of  all  the  votes  given  at  an  election  for  electors  of  Presi 
dent  and  Vice-President  was  imposed  upon  the  secretary  of  state,  and  upon  no  one 
else. 

That  the  secretary  of  state  did  canvass  the  returns  in  the  case  before  us,  and 
thereby  ascertained  that  J.  C.  Cartwright,  W.  H.  Odell,  and  J.  W.  Watts  had  a 
majority  of  all  the  votes  given  for  electors,  and  had  the  highest  number  of  votes 
for  that  office  and  by  the  express  language  of  the  statute  those  persons  are  deemed 
elected. 

That  in  obedience  to  his  duty  the  secretary  made  a  canvass  and  tabulated  state 
ment  of  the  votes  showing  this  result,  which  according  to  law  he  placed  on  file  in 
his  office  on  the  4th  day  of  December,  A.  D.  1876.  All  this  appears  by  an  official 
certificate  under  the  seal  of  the  State  and  signed  by  him,  and  delivered  by  him  to 
the  electors  and  forwarded  by  them  to  the  President  of  the  Senate  with  their  votes. 

That  the  refusal  or  failure  of  the  governor  of  Oregon  to  sign  the  certificate  of 
the  election  of  the  persons  so  elected  does  not  have  the  effect  of  defeating  their  ap 
pointment  as  such  electors. 

That  the  act  of  the  governor  of  Oregon  In  giving^  to  E.  A.  Cronin  a  certificate  of 
his  election  though  ho  received  a  thousand  votes  less  than  Watts,  on  the  ground 
that  the  latter  was  ineligible,  was  without  authority  of  law  and  is  therefore  void. 

That  although  the  evidence  shows  that  Watts  was  a  postmaster  at  the  time  of 
his  election,  that  fact  is  rendered  immaterial  by  his  resignation  both  as  postmaster 
and  elector,  and  his  subsequent  appointment,  to  nil  the  vacancy  so  made,  by  the 
electoral  college. 

The  Commission  has  also  decided,  and  does  hereby  decide,  by  a  majority  of 
votes,  and  report  that,  as  a  consequence  of  the  foregoing  and  upon  the  grounds  before 
stated,  the  paper  purporting  to  bo  a  certificate  of  the  electoral  vote  of  said  State 
of  Oregon,  signed  oy  E.  A.  Cronin,  J.  N.  T.  Miller,  and  John  Parker,  marked  "No. 
2,  N.  C."  by  the  Commission,  and  herewith  returned,  is  not  the  certificate  of  tho 
votes  provided  for  the  Constitution  of  the  United  States,  and  that  they  ought  not 
to  be  counted  as  snch. 

Done  at  Washington,  D.  C.,  the  day  and  year  first  above  written. 

The  question  being  on  the  adoption  of  the  order  it  -was  decided  in 
the  affirmative : 

YEAS 8 

NAYS 7 

Those  who  voted  in  the  affirmative  were:  Messrs.  Bradley,  Edmunds, 
Frelinghuysen,  Garfield,  Hoar,  Miller,  Morton  and  Strong — 8. 

Those  who  voted  in  the  negative  were :  Messrs.  Abbott,  Bayard, 
Clifford,  Field,  Hunton,  Payne,  and  Thurman — 7. 

So  the  report  of  the  Commission  was  adopted ;  and  said  decision 
and  report  were  thereupon  signed  by  the  members  agreeing  therein 
as  follows : 

SAM.  F.  MILLER. 

W.  STRONG. 

JOSEPH  P.  BRADLEY. 

GEO.  F.  EDMUNDS. 

O.  P.  MORTON. 

FRED'K  T.  FRELINGHUYSEN. 

JAMES  A.  GARFIELD. 

GEORGE  F.  HOAR. 

Mr.  Commissioner  EDMUNDS  offered  the  following  : 

Ordered,  That  the  President  of  the  Commission  transmit  a  letter  to  tho  Presi 
dent  of  the  Senate  in  the  following  words : 

"WASHINGTON,  D.  C.,  February  23,  A.  D.  1877. 

"  Sin :  I  aui  directed  by  the  Electoral  Commission  to  inform  the  Senate  that  it  has 
considered  and  decided  upon  the  matters  submitted  to  it  under  the  act  of  Congress 
concerning  the  same  touching  the  electoral  votes  from  the  State  of  Oregon,  and 
herewith,  by  direction  of  said  Commission.  I  transmit  to  you  the  said  decision,  in 
writing,  signed  by  the  members  agreeing  therein,  to  be  read  at  the  meeting  of  the 
two  Houses,  according  to  said  act.  All  the  certificates  and  papers  sent  to  the  Com 
mission  by  the  President  of  the  Senate  are  herewith  returned. 

"  Hon.  THOSIAS  W.  FERKT, 

"  President  of  the  Senate."" 

The  question  being  on  the  adoption  of  the  order,  it  was  determined 
in  the  affirmative ;  and  the  letter  was  accordingly  signed,  as  follows : 

"NATHAN  CLIFFORD, 
"  President  of  the  Commission." 

Mr.  Commissioner  EDMUNDS  offered  the  following : 

Ordered.  That  the  President  of  the  Commission  transmit  to  the  Speaker  of  the 
House  of  Representatives  a  letter  in  the  following  words : 

"  WASHINGTON,  D.  C.,  February  23, 1877. 

"  SiK :  I  am  directed  by  the  Electoral  Commission  to  inform  the  House  of  Repre 
sentatives  that  it  has  considered  and  decided  upon  the  matters  submitted  to  it  under 
the  act  of  Congress  concerning  the  same,  touching  the  electoral  votes  from  tho 
State  of  Oregon,  and  has  transmitted  said  decision  to  the  President  of  the  Senate, 
to  be  read  at  the  meeting  of  the  two  Houses,  according  to  said  act." 

"Hon.  SAMUEL  J.  RANDALL, 

'•  Speaker  of  the  House  of  Representatives."' 

The  question  being  on  the  adoption  of  the  order,  it  was  decided  in 
the  affirmative ;  and  the  letter  was  accordingly  signed  as  follows : 

"NATHAN  CLIFFORD, 

"  President  of  the  Commission." 

On  motion  of  Mr.  Commissioner  MORTON,  it  was 

Ordered,  That  the  injunction  of  secrecy  imposed  on  the  acts  and  proceedings  of 
the  Commission  be  removed. 

On  motion  of  Mr.  Commissioner  GARFIELD,  (at  five  o'clock  p. 
m.,)  the  Commission  adjourned  until  twelve  o'clock  noon  to-mor 
row. 


SATURDAY,  February  24, 1877. 

The  Commission  met  at  twelve  o'clock  m., pursuant  to  adjournment. 

Present :  The  President  andMessrs.  Commissioners  FIELD,  BRADLEY, 
EDMUNDS,  FRELINGHUYSEN,  BAYARD,  PAYNE,  HUNTON,  and  HOAR. 

The  Journal  of  yesterday  was  read,  corrected,  and  approved. 

There  being  no  business  before  the  Commission,  on  motion  of  Mr. 
Commissioner  EDMUNDS,  a  recess  was  taken  until  three  o'clock  p.  m., 
at  which  time  a  further  recess  was  taken  till  four  o'clock  p.  m.,  which, 
was  again  extended  till  five  o'clock  p.  m. ;  when,  on  motion  of  Mr- 
Commissioner  EDMUNDS,  the  Commission  adjourned  till  Monday  next 
at  ten  o'clock  a.  m. 


MONDAY,  February  26, 1877., 

The  Commission  met  at  ten  o'clock  a.  m.,  and  there  being  no  busi 
ness  before  the  Commission  it  took  a  recess  until  one  o'clock  p.  m., 
At  one  o'clock  p.  m.  the  Commission  re-assembled. 
The  PRESIDENT  laid  before  the  Commission  the  following  com 
munication  : 

1017  FOURTEENTH  STREET,  WASHINGTON,  D.  O,. 

February  26,  1877. 
Hon.  NATHAN  CLIFFORD, 

President  of  the  Electoral  Commission  : 

SIR  :  Continued  ill-health  has  confined  me  to  my  room,  and  for  several  days  past1 
to  my  bed,  from  which,  by  order  of  my  physician,  I  cannot  be  removed  to-day ;  nor 
have  I  any  assurance  that  I  will  be  able  to  get  out  for  some  days  to  come. 

Under  these  circumstances  of  physical  disability  I  am  compelled  to  notify  the 
Commission  that  I  am  not  able  to  attend  its  session,  and  ask  that  the  vacancy  caused 
by  my  absence  may  be  filled  as  provided  by  law. 
Yours  respectfully, 

A.  G.  THURMAN: 

On  motion  of  Mr.  Commissioner  EDMUNDS,  the  communication 
was  ordered  to  be  placed  on  the  files  of  the  Commission- 
Mr.  Commissioner  EDMUNDS  offered  the  following  resolution? 

Whereas  Hon.  ALLEN  G.  THURMAN,  a  member  of  this  Commission  on  the  part 
of  the  Senate  of  the  United  States,  has  now  communicated  to  the  Commission 
by  a  letter  in  writing  the  fact  that  he  has  become  physically  unable  to  perform  the* 
duties  required  by  the  act  of  Congress  establishing  said  Commission  ; 

And  whereas  the  said  TIIUUMAN  has  in  fact  become  physically  unable  to  perform 
the  said  duties:  Therefore, 

Resolved,  That  the  President  of  the  Commission  forthwith  communicate  said  fact, 
to  the  Senate  of  the  United  States,  as  required  by  said  act,  in  order  that  the  va 
cancy  so  created  in  said  Commission  may  be  lawfully  filled. 

The  question  being  on  the  adoption  of  the  reso  lutiou,  it  waa  de 
cided  in  the  affirmative. 
On  motion  of  Mr.  Commissioner  EDM  UNDS,  it  was 

Ordered,  That  the  President  of  the  Commission  transmit  a  letter  to  the  Presi 
dent  of  the  Senate,  in  the  following  words : 

"ELECTORAL  COMMISSION, 
"  Washington,  February  26,  1877. 
"To  the  President  of  the  Senate  of  the  United  States: 

"  SIR  :  I  am  directed  by  the  Electoral  Commission,  formed  under  the  act  of  Con 
gress  approved  January  29,  A.  D.  1877,  entitled  "An  act  to  provide  for  and  regu 
late  the  counting  of  votes  for  President  and  Vice-President,  and  the  decision  of 
questions  arising^ thereon,  for  the  term  commencing  March  4,  A.  D.  1877,"  to  com 
municate  to  the  Senate  a  copy  of  a  resolution  of  the  Commission,  this  day  adopted, 
touching  a  vacancy  therein,  occasioned  by  the  physical  inability  of  Hon.  ALLEN*  G. 
THURMAN,  a  Senator  and  a  member  of  said  commission,  to  proceed  with  its  duties. 
Respectfully  yours." 

And  the  communication  was  thereupon  signed  accordingly  by 

"  NATHAN  CLIFFORD, 

"President  of  the  Commission." 

On  motion  of  Mr.  Commissioner  HOAR,  the  Commission  took  a  re 
cess  until  four  o'clock  p.  m. 

The  PRESIDENT,  at  four  o'clock  p.  m.,  read  the  following  com 
munication  : 

IN  SENATE  OF  THE  UNITED  STATES, 

February  26,  1877. 

SIR:  I  have  the  honor  to  communicate  to  you,  to  be  laid  before  the  Electoral. 
Commission,  the  proceedings  of  tho  Senate  upon  the  submission  of  your  commu 
nication  this  day  announcing  tho  inability  of  Hon.  ALLEN  G.  THURMAN,  a  member 
of  the  Commission,  to  perform  the  duties  required  by  the  act  creating  the  said 
commission. 

I  have  the  honor  to  be,  sir,  respectfully,  your  obedient  servant, 

T.  W.  FERRY, 
President  pro  temporg. 
Hon.  NATHAN  CLIFFORD, 

President  of  the  Electoral  Commission. 

IN  THE  SENATE  OF  THE  UNITED  STATES, 

February  26,  1877. 

The  PiiF.srDENT  pro  tempore  laid  before  the  Senate  a  communication  from  the  Pres 
ident  of  the  Electoral  Commission,  announcing  that  Hon.  ALLEN  G.  THURMAN,  a 
member  of  said  Commission  on  the  part  of  the  Senate,  had  become  physically 
unable  to  perform  the  duties  required  by  the  act  of  Congress  establishing  the  said 
Commission. 

The  Senate  thereupon  proceeded,  as  required  by  the  act  of  Congress  creating  the 
said  Commission,  to  elect,  by  a  viva  voce  vote,  a  member  of  the  Senate  to  till  tho 
vacancy  in  the  said  Commission  created  by  the  inability  of  Hon.  ALLEN  G.  THUB- 

MAN. 

And,  on  counting  the  votes  it  appeared  that  Hon.  FRANCIS  KERNAN  was  unan 
imously  elected  by  the  Senate  to  fill  the  vacancy  in  the  Commission. 
A  +t^,,» .  rn?nT?nTi  n    nrr 


Attest : 


GEORGE  C.  GORHAM, 

Secretary. 


180 


ELECTORAL  COMMISSION. 


The  oath  prescribed  by  law  was  administered  by  the  President  to 
Mr.  KERNAN,  and  subscribed  by  him;  whereupon  he  took  his  seat  as  a 
member  of  the  Commission. 

On  motion  of  Mr.  Commissioner  EDMUNDS,  the  Commission  took  a 
recess  until  six  o'clock,  unless  sooner  called  together  by  direction  of 
the  President. 

At  six  o'clock  p.  m.  the  Commission  reassembled. 

Mr.  George  C.  Gorham,  Secretary  of  the  Senate,  appeared  and  pre 
sented  the  following  communication  ;  which  was  read : 

HALL  OF  THE  HOUSE  OF  EEPF.SENTATIVES, 

February  2fi,  1876. 
To  the  President  of  the  Commission : 

More  than  one  return  or  paper  purporting  to  be  a  return  or  certificate  of  the 
electoral  votes  of  the  State  of  South  Carolina  having  been  received  and  this  day 
opened  in  the  presence  of  the  two  Houses  of  Congress  and  objections  thereto  hav 
ing  been  made,  the  said  returns,  with  all  accompanying  papers  and  also  the  objec 
tion  thereto,  are  herewith  submitted  to  the  judgment  and  decision  of  the  Commis 
sion,  as  provided  by  law. 

T.  W.  FERRY, 
President  of  the  Senate. 

Mr.  Commissioner  EDMUNDS.  I  think  the  certificates  had  better 
be  read,  if  they  are  not  too  long. 

The  PRESIDENT.    The  certificates  will  be  read. 

Mr.  Commissioner  PAYNE.  Would  it  not  be  in  order  to  have  them 
printed  ? 

The  PRESIDENT.  Certainly;  but  their  reading  is  asked  for. 
They  will  be  read. 

The  Secretary  read  as  follows : 

CERTIFICATE  No.  1. 
STATE  OP  SOUTH  CAROLINA  : 

Pursuant  to  the  laws  of  the  United  States,  I,  D.  H.  Chamberlain,  governor  of 
the  State  of  South  Carolina,  do  hereby  certify  that  C.  C.  Bpwen,  John  Winsmith, 
Thomas  B.  Johnston,  Timothy  Hurley,  "W.  B.  Nash,  Wilson  Cook,  and  W.  F. 


the  purpose  of  giving  in  their  votes  for  President  and  Vice-President  of  the  United 
States  for  the  term  prescribed  by  the  Constitution  of  said  United  States,  to  begin 
on  the  4th  day  of  March,  in  the  year  of  our  Lord  one  thousand  eight  hundred  and 
seventy-seven. 

Given  under  my  hand  and  seal  of  the  State  of  South  Carolina,  at  Columbia,  this 
twenty-second  day  of  November,  A.  D.  one  thousand  eight  hundred  and  seventy - 

D.  H.  CHAMBERLAIN, 

Governor. 
By  the  governor: 
[SEAL.]  H.  E.  HAYNE, 

Secretary  of  State. 

List  of  persons  voted  for  as  President  of  -Mie  United  States  of  America  for  the 
term  prescribed  by  the  Constitution  of  the  United  States  to  begin  on  the  fourth 
day  of  March,  in  the  year  of  our  Lord  one  thousand  eight  hundred  and  seventy- 
seven,  by  the  electoral  college  of  the  State  of  South  Carolina,  on  the  first  Wed 
nesday  in  December,  in  the  year  of  our  Lord  one  thousand  eight  hundred  and 
seventy-six,  at  Columbia,  the  capital  of  said  State  of  South  Carolina,  with  the 
number  of  votes  for  each,  to  wit : 
Rutherford  B.  Hayes,  of  Ohio,  received  seven  (7)  votes. 

C.  C.  BOWEN. 
J.  WINSMITH. 
THOMAS  B.  JOHNSTON. 
TIMOTHY  HURLEY. 
W.  B.  NASH. 
WILSON  COOK. 
W.  F.  MYERS. 

We,  the  undersigned,  electors  of  President  and  Vice-President  of  the  United 
States  of  America,  appointed  by  the  State  of  South  Carolina  at  the  general  election 
held  on  the  seventh  day  of  November,  in  the  year  of  our  Lord  one  thousand  eight 
hundred  and  seventy-six,  do  certify  that  the  foregoing  list  is  correct. 

In  witness  whereof  we  have  hereunto  set  our  hands  this  sixth  day  of  December,  in 
the  year  of  our  Lord  one  thousand  eight  hundred  and  seventy-siv,  and  in  the  one 
hundred  and  first  year  of  the  Independence  of  the  United  States  of  America. 

C.  C.  BOWEN. 
J.  WINSMITH. 
THOMAS  B.  JOHNSON. 
TIMOTHY  HURLEY. 
W.  B.  NASH. 
WILSON  COOK. 
W.  F.  MYERS. 

List  of  persons  voted  for  as  Vice-President  of  the  United  States  of  America  for  the 
term  prescribed  by  the  Constitution  of  the  United  States  of  America  to  begin  on 
the  fourth  day  of  March,  in  the  year  of  our  Lord  one  thousand  eight  hundred 
and  seventy-seven,  by  the  electoral  college  of  the  State  of  South  Carolina,  on  the 
first  Wednesday  in  December,  in  the  year  of  our  Lord  one  thousand  eight  hun 
dred  and  seventy-six,  at  Columbia,  the  capital  of  said  State  of  South  Carolina, 
with  the  number  of  votes  for  each,  to  wit: 
William  A.  Wheeler,  of  New  York,  received  seven  (7)  votes. 

C.  C.  BOWEN, 
J.  WINSMITH. 
THOMAS  B.  JOHNSTON. 
TIMOTHY  HURLEY. 
W.  B.  NASH. 
WILSON  COOK. 
W.  F.  MYERS. 

We,  the  undersigned,  electors  of  President  and  Vice-President  of  the  United 
States  of  America,  appointed  by  the  State  of  South  Carolina  at  the  general  elec 
tion  held  on  the  7th  day  of  November,  in  the  year  of  our  Lord  1876,  do  certify  that 
the  foregoing  list  is  correct. 

In  witness  whereof  we  have  hereunto  set  our  hands  this  6th  day  of  December,  in 
the  year  of  our  Lord  1876,  and  in  the  one  hundred  and  first  year' of  the  Independ 
ence  of  the  United  States  of  America. 

C.  C.  BOWEN. 
J.  WINSMITH. 
THOMAS  B.  JOHNSTON. 
TIMOTHY  HURLEY. 
W.  B.  NASH. 
WILSON  COOK. 
W.  F.  MYERS. 


CERTIFICATE  No.  2. 
STATE  OP  SOUTH  CAROLINA,  ss: 

We,  the  undersigned,  electors  of  President  and  Vice-President  of  the  United 
States  of  America  for  the  next  ensuing  regular  teim  of  the  respective  offices 
thereof,  being  electors  duly  and  legally  appointed  by  and  for  the  State  of  South 
Carolina,  as  will  hereinafter  appear,  having  met  and  convened  in  the  city  of  Co 
lumbia,  at  the  capitol  of  the  State,  in  pursuance  of  the  direction  of  the  Legislature 
of  the  State  of  South  Carolina,  on  the  first  Wednesday,  the  sixth  day  of  Decem 
ber,  in  the  year  of  our  Lord  one  thousand  eight  hundred  and  seventy-six,  do 
hereby  certify  that,  being  so  assembled,  duly  qualified  according  to  the  provisions 
of  the  constitution  of  said  State,  by  taking  and  subscribing  the  proper  oath  of 
office  therein  prescribed,  and  organized,  we  proceeded  to  vote  by  ballot,  and  bal 
loted  first  for  such  President  and  then  for  such  Vice-President,  by  distinct  ballots. 

The  list  of  the  names  of  the  electors,  signed  by  the  governor,  with  the  seal  of 
the  State  affixed  thereto,  as  required  by  law,  is  not  attached,  and  its  absence  is  ex 
plained  by  the  following  statement : 

First.  We  claim  to  have  been  duly  appointed  electors  by  the  State  of  South  Car 
olina  in  the  manner  directed  by  the' Legislature  thereof,  and  to  have  been  elected 
by  general  ticket,  and  to  have  received  "the  highest  number  of  votes  at  the  election 
for  President  and  Vice-President.  held  on  the  7th  day  of  November,  A.  D.  1876, 
and  that  such  election  will  appear  by  a  proper  examination  of  the  legal  returns  of 
the  managers  of  election  for  the  different  precincta  in  the  counties  of  the  State, 
made  to  their  respective  boards  of  county  canvassers,  which  do  not  sustain,  but  are 
directly  opposed  to,  the  statements  of  votes  given  for  electors  in  the  several  coun 
ties  forwarded  and  certified  to  the  State  board  of  canvassers  by  the  commissioners- 
of  election  or  boards  of  canvassers  in  such  counties. 

Second.  The  board  of  State  canvassers,  after  a  pretended  canvass  of  the  returns 
of  the  election,  made  an  erroneous,  imperfect,  and  false  statement  of  the  result  of 
said  election,  and  illegally  declare  the  result  to  be  as  follows : 


Theodore  G.  Barker 90,  896 

Samuel  McGowan 90,737 

J.W.Harrington 90,895 

J.  I.  Ingram 90,798 

William  AVallace 90,  905 

John  B.  Erwiu 90,  906 

Robert  Aldrich 90,860 


C.  C.  Bowen 91,786 

John  Winsmith 91,870 

Thomas  B.  Johnston 91,  852 

Timothy  Hurley 91,13(5 

William  B.  Nash 91,804 

Wilson  Cooke 91,432 

H.  F.  Myers 91,830 


Third.  In  this  illegal  and  invalid  canvass  of  the  votes  given  for  the  electors  of 
President  and  Vice-President,  the  board  of  State  canvassers,  after  canvassing  the 
votes  of  six  of  the  counties  of  the  State, by  comparing  the  statements  of  the  county 
boards  of  canvassers  with  the  returns  of  the  precinct  managers  in  said  counties, 
and  after  discovering  serious  discrepancies  between  such  statements  and  such  re 
turns,  showing  errors  in  the  statements  of  the  county  canvassers,  refused  to  con 
tinue  such  comparison  and  verification  as  to  the  remaining  twenty-six  counties  in 
the  State,  also  refused  to  allow  copies  of  such  returns  to  be  made,  and  confined 
their  canvass  and  count  to  the  aggregation  of  the  erroneous  returns  of  county  can 
vassers,  and  upon  such  count  declared  the  above  erroneous  and  false  result. 

Fourth.  The  undersigned,  who  claim  that  they  are  duly-elected  electors,  filed 
in  the  supreme  court  of  South  Carolina  a  suggestion  for  writ  of  mandamus  to  re 
quire  the  board  of  State  canvassers  to  correct  the  count  according  to  the  true  vote 
of  the  people  as  cast  at  said  election,  but  pending  that  proceeding,  of  which  the 
board  had  due  notice,  the  board  determined  and  certified  the  persons  elected  upon 
the  above  erroneous  count,  and  after  making  a  return  to  the  court,  and  before  the 
decision  thereof,  secretly  and  unlawfully  adjourned  in  defiance  and  contempt  of 
the  authority  of  the  supreme  court.  The  secretary  of  state,  upon  such  erroneous 
statement  and  illegal  determination  unlawfully  certified  to  him,  caused  a  copy  of 
the  certified  determination  of  the  board  of  State  canvassers  to  be  delivered  to  each 
of  the  persons  therein  declared  to  be  elected,  viz,  Christopher  C.  Bowen,  John 
Winsmith,  Thomas  B.  Johnston,  Timothy  Hurley,  Willi am  B.  Nash,  Wilson  Cooke, 
and  H.  F.  Myers. 

The  undersigned  thereupon  filed  in  the  supreme  court  of  the  State  their  sugges 
tion  for  a  writ  of  quo  warranto,  disputing  the  election  of  said  persons  and  the  va 
lidity  of  their  legal  title  to  the  offices  of  electors,  which  proceeding  also  is  now 
pending  in  said  court. 

Fifth.  The  undersigned,  as  electors  duly  appointed,  made  demand  upon  the  sec 
retary  of  state  for  the  lists  required  by  law,  and  he  refused  to  deliver  the  same  ; 
and  we  further  certify  that  the  following  are  two  distinct  lists,  one  of  the  votes 
for  President  and  the  other  of  the  votes  for  Vice-President  > 

List  of  all  persons  voted  for  as  President,  with  the  number  of  votes  for  each. 
Names  of  persons  voted  for.  Number  of  votes. 

Samuel  J.  Tildeu,  of  the  State  of  New  York seven  (7.) 

List  of  all  persons  voted  for  as  Vice-President,  with  the  number  of  votes  for  each. 
Names  of  persons  voted  for.  Number  of  votes. 

Thomas  A.  Hendricks,  of  the  State  of  Indiana seven  (7.) 

In  witness  whereof  we  have  hereunto  set  our  hands. 

Done  at  No.  101  Richardson  street,  in  the  city  of  Columbia  and  State  of  South 
Carolina,  the  6th  day  of  December,  in  the  year  of  our  Lord  1876,  and  of  the  inde 
pendence  of  the  United  States  of  America  the  101st. 

THEODORE  G.  BARKER, 
S.  McGOWAN, 
JNO.  W.  HARRINGTON, 
JNO.  ISAAC  INGRAM, 
WM.  WALLACE, 
JOHN  B.  ERWIN, 
ROBT.  ALDRICH. 

The  PRESIDENT.  I  desire  to  inquire  who  represent  the  objectors 
to  certificate  No.  1  under  the  fourth  rule  ? 

Mr.  Representative  KURD.  Mr.  Cochrane,  a  Representative  from 
Pennsylvania,  and  myself. 

The  PRESIDENT.   Who  represent  the  objectors  to  certificate  No.  2  ? 

Mr.  Representative  LAWRENCE.  I  have  the  honor  to  represent 
the  objectors  on  the  part  of  the  House,  and  Senator  Christiancy,  I 
understand,  represents  the  objectors  on  the  part  of  the  Senate. 

Mr.  Senator  CHRISTIANCY.  Mr.  President,  I  wish  to  state  on  be 
half  of  the  objectors  on  the  part  of  the  Senate  that,  beyond  the  inter 
position  of  the  objections,  we  do  not  propose  to  argue  them,  but  leave 
them  to  be  argued  by  counsel,  if  they  see  fit  within  the  time  provided 
by  your  rules. 

Mr.  Commissioner  HUNTON.  I  move  that  the  papers  referred  to 
the  Commission  by  the  joint  session  be  printed. 

Mr.  Commissioner  EDMUNDS.  By  that  you  mean  the  papers  trans 
mitted  by  the  President  of  the  Senate  ? 

Mr.  Commissioner  HUNTON.    Yes,  sir. 

Mr.  Commissioner  HOAR.    Before  we  proceed  to  any  other  matter, 


ELECTORAL  COMMISSION. 


J81 


I  inquire  whether  it  would  not  be  well  to  ascertain  what  counsel  rep 
resent  the  two  sides  f 

The  PRESIDENT.  We  have  usually  made  that  inquiry  after  the 
objectors  have  been  heard  ;  but  I  can  make  the  inquiry  now.  Who 
are  the  counsel  that  represent  the  objectors  to  certificate  No.  1  ? 

Mr.  Representative  HURD.  I  am  unable  to  state  their  names  this 
evening,  but  I  will  report  to  the  Commission  to-morrow,  if  that  will 
answer  the  purpose. 

The  PRESIDENT.  I  make  the  same  inquiry  now  of  the  other  side, 
if  it  be  convenient  for  them  to  answer. 

Mr.  MATTHEWS.  The  objections  to  certificate  No.  2  will  be  rep 
resented,  so  far  as  counsel  are  concerned,  by  Mr.  Shellabarger  and 
mvself. 

The  PRESIDENT.  The  question  now  is  on  the  motion  of  Mr.  Com 
missioner  HUNTON  that  the  papers  be  printed. 

The  motion  was  agreed  to. 

Mr.  Commissioner  HUNTON.  I  move  that  the  Commission  adjourn 
until  ten  o'clock  to-morrow  morning. 

Mr.  Commissioner  GARFIELD.  I  ask  the  gentleman  to  withdraw 
that  motion  for  a  moment,  to  enable  me  to  make  a  suggestion. 

Mr.  Commissioner  HUNTON.    Certainly. 

Mr.  Commissioner  GARFIELD.  I  do  not  rise  to  make  a  motion ; 
but  I  wish  to  suggest  that  the  Commission  ought  to  determine  the 
amount  of  time  to  be  allowed  in  this  case.  It  has  seemed  to  me  that 
there  might  be  a  reduction  of  time. 

The  PRESIDENT.  In  the  absence  of  any  application,  the  rules 
determine  it. 

Mr.  Commissioner  GARFIELD.  I  know  that ;  but  I  am  speaking 
now,  not  in  favor  of  an  extension,  but  a  reduction  of  time. 

Mr.  Commissioner  EDMUNDS.  We  had  better  wait  until  counsel 
come  in. 

Mr.  Commissioner  GARFIELD.  It  has  already  been  announced  on 
the  part  of  the  Senate  that  they  do  not  wish  to  occupy  time. 

The  PRESIDENT.  Excuse  me,  General  GARFIELD.  On  one  side 
the  counsel  are  not  present. 

Mr.  Commissioner  GARFIELD.  No;  but  I  am  speaking  of  the 
whole  subject  of  time,  for  objectors  as  well  as  counsel. 

Mr.  Commissioner  FRELINGHUYSEN.  I  think  that  had  better 
go  off  until  to-morrow  morning. 

Mr.  Commissioner  GARFIELD.  Very  well ;  I  will  call  it  up  to 
morrow  morning. 

Mr.  Commissioner  HUNTON.     I  renew  my  motion. 

The  PRESIDENT.  It  is  moved  that  the  Commission  adjourn  until 
to-morrow  at  ten  o'clock. 

The  motion  was  agreed  to ;  and  (at  six  o'clock  and  forty-five  min 
utes  p.  m.)  the  Commission  adjourned. 


TUESDAY,  February  27, 1877. 

The  Commission  met  at  ten  o'clock  a.  m.,  pursuant  to  adjourn 
ment.  Present :  The  President  and  Messrs.  Commissioners  MILLER, 
STRONG,  FIELD,  BRADLEY,  EDMUNDS,  MORTON,  FRELINGHUYSEN, 
BAYARD,  KERNAN,  PAYNE,  HUNTON,  ABBOTT,  GARFIELD,  and  HOAR. 

The  respective  objectors  and  Messrs.  Stanley  Matthews  and  Samuel 
Shellabarger,  counsel  representing  the  objections  to  the  South  Caro 
lina  certificate  No.  2,  were  also  present. 

The  PRESIDENT.  It  was  said  that  the  counsel  on  the  part  of  the 
objections  to  certificate  No.  1  would  be  named  this  morning. 

Mr.  Representative  HURD.  No  counsel  will  appear  on  behalf  of 
the  objectors  to  certificate  No.  1. 

The  PRESIDENT.  We  are  ready  to  hear  the  objectors  to  certifi 
cate  No.  1. 

Mr.  Representative  HURD.  Mr.  President  and  gentlemen  of  the 
Commission,  I  shall  as  briefly  and  as  rapidly  as  I  can  submit  to 
your  consideration  the  reasons  which  in  my  judgment  require  the  re 
fusal  on  your  part  to  count  the  vote  of  the  State  of  South  Carolina. 
In  the  discussion  I  shall  endeavor  not  to  go  over  any  of  the  ground 
which  has  already  been  traversed.  I  shall  not  antagonize  any  of  the 
propositions  which  I  understand  to  have  already  been  decided  by  the 
Commission.  I  shall  submit,  as  I  regard  them,  new  propositions  as 
to  which  the  opinion  of  this  Commission  has  not  as  yet  been  asked. 

The  first  proposition  is  that  the  vote  of  South  Carolina  should  not 
be  counted,  because  at  the  time  the  election  was  held  there  was  not 
a  republican  form  of  government  in  that  State.  I  do  not  propose  in 
discussing  this  proposition  to  refer  to  the  history  of  the  reconstruc 
tion  measures  by  which  South  Carolina  was  restored  to  the  Federal 
Union,  nor  to  point  out  the  antirepublican  policies  by  which  that  re 
sult  was  brought  about ;  nor  do  I  intend  to  refer  to  the  policies  of 
legislation  which  have  since  followed  its  admission  to  the  Union,  pol 
icies  by  which  the  sovereignty  of  the  State  has  practically  been  over 
thrown  and  by  which  the  republican  nature  of  its  institutions  has 
been  destroyed.  Nor  yet  do  I  intend  to  refer  to  the  usurpations  of  those 
who  have  held  political  office  in  South  Carolina,  by  which  more  mark 
edly  still  has  the  nature  of  the  government  of  that  Commonwealth 
been  changed.  I  simply  intend  to  refer  to  the  condition  of  things 
which  existed  in  South  Carolina  for  a  few  weeks  prior  to  the  elec 
tion,  on  the  day  of  election,  and  for  a  few  weeks  following  it.  I  ap 


prehend  that  no  person  will  dispute  the  proposition  that,  if  in  the 
State  of  South  Carolina  there  was  not  a  republican  form  of  govern 
ment  at  that  time,  its  electoral  vote  should  not  be  counted. 

This  seems  to  follow  from  two  propositions,  the  first  of  which  is 
that  the  Constitution  of  the  United  States  guarantees  to  each  State 
a  republican  form  of  government.  This  implies  the  duty  on  the 
part  of  the  State  to  maintain  a  republican  form  of  government  and 
a  duty  on  the  part  of  the  United  States  to  make  the  inquiry,  when 
ever  it  is  necessary,  as  to  whether  a  republican  form  of  government 
at  that  time  may  exist.  The  second  is  that  this  is  a  Union  of  repub 
lics  and,  if  it  were  permitted  that  a  State  without  a  republican  form 
of  government  could  cast  its  electoral  vote  and  thus  choose  a  Presi 
dent  of  the  United  States,  the  other  republics  of  the  Union  would  be 
bound  by  the  act  of  a  State  which  might  be  with  a  government  mo 
narchical  in  its  form,  or,  as  in  the  case  of  South  Carolina,  without,  in 
substance,  any  government  at  all. 

What  is  meant  by  "a  republican  form  of  government?"  This 
phrase  is  used  in  the  Constitution  of  the  United  States.  It  does  not 
mean  merely  the  form  of  a  government ;  it  means  the  essence  and  sub 
stance  of  the  government.  It  does  not  mean  that  the  Constitution 
shall  be  republican  in  its  form,  because  there  is  nothing  which  re 
quires  that  a  State  shall  have  a  constitution,  and  many  States  have 
been  admitted  into  the  Union  without  a  constitution,  as  that  term  is 
ordinarily  understood  by  the  American  people.  It  does  not  mean, 
either,  merely  that  the  legislation  shall  be  of  a  republican  nature ;  but 
it  does  mean  that  the  constitution  and  the  legislation  and  the  adminis 
tration  shall  all  be  republican  in  their  form  and  in  their  nature,  that 
they  shall  together  constitute  a  government  based  upon  republican 
principles,  which  gives  to  the  people  the  right  and  the  opportunity  to 
determine  their  own  rulers  freely  and  without  intervention. 

In  order  that  it  shall  be  a  republican  form  of  government,  there 
must  be  nothing  in  the  State,  at  the  time  that  it  is  objected  that  there 
is  not  a  republican  form  of  government,  which  interferes  with  a  free 
and  fair  election,  with  the  free  and  fair  and  honest  ascertainment  of 
the  popular  will.  Whatever  does  interfere  with  that,  whatever  does 
thwart  the  will  of  the  people  as  it  is  attempted  to  be  ascertained  at 
the  polls,  interferes  with  and  to  that  extent  destroys  a  republic  and 
a  republican  government. 

Mr.  Commissioner  MILLER.  If  I  do  not  interrupt  you  may  I  ask 
you  a  question,  Mr.  Hard?  This  constitutional  provision  has  been 
very  much  discussed,  you  know,  of  late  years  ;  and  really  for  my  own 
information  I  should  like  to  get  your  views  very  clearly.  What  im 
portance  do  you  attach  to  that  word  "form"  in  that  phrase?  It 
must  have  some  significance.  Is  the  expression  the  same  as  "  repub 
lican  government"  without  the  word  "form,"  or  does  the  word 
"form"  have  reference  to  the  division  of  powers? 

Mr.  Representative  HURD.  I  regard  the  phrase  as  amounting  to 
this,  that  each  State  in  the  Union  must  be  a  republic. 

Mr.  Commissioner  MILLER.    What  is  a  republic  ? 

Mr.  Representative  HURD.  That  is  just  the  proposition  I  was 
about  to  discuss. 

Mr.  Commissioner  HOAR.  Allow  me  to  inquire,  is  not  your  propo 
sition  that  it  must  be  a  form  in  force  as  a  government  ? 

Mr.  Representative  HURD.    So  I  said. 

Mr.  Commissioner  HOAR.    I  so  understood  you. 

Mr.  Representative  HURD.  As  I  maintained  a  moment  ago,  it  shall 
be  republican  in  its  constitution,  republican  in  its  measures  of  legis 
lation,  republican  in  its  administration ;  that  is,  it  shall  be  a  govern 
ment  actually  existing,  possessing  all  the  requisites  of  a  republican 
form  of  government,  whatever  they  may  be ;  and  the  essence  of  that 
(and  that  is  the  only  point  necessary  for  me  to  consider  in  this  dis 
cussion)  is  that  the  people  shall  have  a  free  and  fair  opportunity  of 
expressing  their  will  in  the  selection  of  their  own  rulers  and  in  the 
management  of  their  own  elections. 

Mr.  Commissioner  MILLEE.  May  not  the  form  of  the  govern 
ment  be  essentially  republican  and  its  administration  be  very  tyran 
nical  ? 

Mr.  Representative  HURD.  Possibly  it  might  be.  There  may  be 
tyranny  under  a  republican  form  of  government,  I  concede ;  but  when 
the  form  of  government,  as  administered,  when  the  administration  of 
the  government,  becomes  such  as  to  take  out  of  the  form  the  substance, 
the  essence,  and  leave  there  a  government  not  a  a  republic,  then  that 
is  not  such  a  form  of  government  as  is  contemplated  by  the  Consti 
tution. 

As  I  was  about  to  remark,  whatever  prevents  a  free  expression  of 
the  popular  will  at  the  polls,  whatever  prevents  a  fair  ascertainment 
of  the  wishes  of  the  people  in  the  choice  of  their  rulers,  interferes, 
and  to  the  extent  that  it  operates,  destroys  a  republican  form  of 
government.  It  is  plain  that  if  a  monarchy  were  established  in  sub 
stance,  although  in  form  the  government  might  be  republican,  that 
is  the  destruction  of  a  republic,  and  no  republican  form  of  govern 
ment  exists,  because  a  monarchy  is  the  antipodes  of  the  idea  of  a  re 
public  ;  and  it  is  just  as  true  that  anarchy,  so  far  as  it  may  be  effective, 
destroys  the  republic;  for  the  literal  signification  of  the  word  is 
"  without  government."  Anarchy  means  no  form  of  government  at 
all,  either  republican  or  anything  else.  If  lawlessness  prevail  so  that 
it  is  irnpossib  lethat  there  should  be  a  lawful  election  ;  if  violence  is 
practiced  so  that  men  are  not  able  freely  to  go  to  the  polls ;  if  intimi 
dation  be  practiced  so  that  large  numbers  of  men  who  would  other 
wise  vote  do  not  go  near  the  polls,  or  who,  if  they  do  go  to  the  polls, 


182 


ELECTORAL  COMMISSION. 


are  compelled  to  vote  against  their  will,  then  an  election  held  under 
such  circumstances  is  held  in  a  condition  of  anarchy,  in  which  a  re 
public  is  a  mere  myth  and  a  fiction. 

In  this  case,  if  your  honors  please,  we  propose  to  show  by  proof 
which  has  been  taken  by  the  various  committees  and  which  we  re 
gard  as  competent  for  the  House  of  Representatives  or  the  Senate  to 
consider,  that  in  the  greater  part  of  South  Carolina  on  the  day  of  the 
choice  of  the  electors  for  President  and  Vice-President,  there  was  a 
state  of  anarchy.  The  proof  that  was  taken  by  the  majority  of  the 
committee  shows  that  in  the  counties  which  gave  large  republican 
majorities  intimidation  was  practiced  by  colored  men  upon  their 
colored  friends  who  desired  to  vote  the  democratic  ticket ;  that  men 
in  the  city  of  Charleston  and  in  many  of  the  counties  outside  of 
Charleston  and  in  the  islands  near  by  were  whipped  and  brutally 
abused  at  the  polls  for  no  other  offense  than  that  of  proposing  to  vote 
the  democratic  ticket;  that  men  who  came  to  the  polls  with  demo 
cratic  tickets  in  their  hands  had  them  takeu  out  of  their  hands  and 
were  compelled  in  the  presence  of  a  mob,  in  the  presence  of  violence 
nnd  riot  and  at  the  peril  of  their  lives,  to  vote  the  ticket  of  the  op 
posing  party.  We  propose  to  show  by  the  testimony  which  was  ta 
ken  by  the  minority  of  the  committee  that  in  the  counties  which  gave 
large  democratic  majorities  the  democratic  leaders  and  managers  in 
terfered  with  the  freedom  of  the  election  by  practicing  intimidation 
upon  their  black  employe's  and  those  who  might  happen  to  live  with- 
iu  their  districts.  We  propose  to  show  that  rille  clubs  were  organized 
which  were  not  disbanded  in  accordance  with  the  proclamation  of  the 
President  of  the  United  States  and  that  under  the  effect  of  these  rifle 
clubs  and  of  the  intimidation  that  was  practiced  in  that  method 
large  numbers  of  negroes  who  otherwise  would  have  voted  the  re 
publican  ticket  voted  the  democratic  ticket. 

These  propositions  I  submit  with  the  testimony  which  has  been 
taken  by  the  committee  of  the  House  of  Representatives.  The  testi 
mony  taken  by  the  subcommittee  of  which  my  friend  Judge  Law 
rence  was  the  chairman,  or  taken  under  his  direction,  showed  very 
largelyfacts  as  to  the  democratic  intimidation.  The  testimony  which 
was  taken  by  the  majority  of  the  committee  showed  very  largely 
the  facts  as  to  republican  intimidation.  We  propose  to  put  in  ev 
idence  the  proclamation  of  the  President  of  the  United  States,  which 
declared  weeks  before  the  election  that  there  was  a  state  of  insur 
rection  in  South  Carolina;  a  state  of  insurrection  which  demanded 
the  presence  of  United  States  troops,  a  state  of  insurrection  which 
could  uot  have  been  overcome  before  the  day  of  election ;  for  there 
were  on  the  day  of  election  more  troops  in  South  Carolina  than  there 
were  at  any  time  before,  after  the  proclamation  was  issued,  thirty- 
two  companies  of  the  United  States  Army. 

With  this  practice  of  intimidation  as  shown  by  this  testimony,  with 
this  lawlessness  at  the  polls,  with  this  violence  practiced  upon  the 
voters,  with  this  practical  anarchy  everywhere,  with  this  state  of  in 
surrection  as  declared  by  the  President  of  the  United  States,  with 
the  presence  of  thirty-two  companies  of  the  Army  of  the  United 
States  there  at  his  order,  I  submit  that  it  was  not  possible  that  a  fair 
and  free  election  could  be  held  in  which  the  true  announcement  of 
the  result  could  be  made.  I  undertake  to  say  that  no  person  can 
read  the  history  of  the  events  in  South  Carolina  and  can  read  the 
testimony  which  has  been  taken  before  these  committees  and  rise 
from  the  perusal  without  the  conviction  that  he  cauuot  tell  what  is 
the  truth  as  to  the  vote  of  the  State. 

Will  the  Commission  hear  this  proof  which  we  tender  ?  The  proof 
goes  directly  to  the  question  as  to  whether  there  is  a  republican  form 
of  government  in  the  State  of  South  Carolina  or  not ;  as  to  whether 
anarchy  did  not  in  fact  exist  in  this  State  on  the  day  of  the  election, 
destroying  the  republic.  It  is  not  the  question  that  has  been  sub 
mitted  to  the  tribunal  before,  as  to  how  the  officers  of  the  State  have 
discharged  their  trust;  it  is  not  a  question  of  going  behind  the  re 
turns  which  have  been  sent  to  the  President  of  the  Senate  to  be 
opened;  it  does  not  relate  to  the  manner  of  conducting  the  State 
elections;  it  does  not  relate  to  the  honesty  of  State  officials  ;  but  it 
goes  to  the  question  of  whether  there  is  a  'State  government  there  at 
all  or  not.  Will  anybody  dispute  that  the  Congress  of  the  United 
States  has  the  power  to  inquire  as  to  the  character  of  the  State  gov 
ernment  when  it  is  said  that  it  is  not  republican  in  form  and  is  asked 
to  perform  its  constitutional  obligation  of  guaranteeing  to  it  a  repub 
lican  form  of  government  ?  Will  anybody  dispute  that  when  the 
proposition  is  submitted  to  Congress  for  its  consideration  fairly,  when 
the  question  fairly  comes  up  for  its  action,  it  is  bound  to  make  in 
quiry  as  to  the  nature  and  character  of  the  government  to  determine 
whether  it  be  republican  in  form  or  not  ? 

If  it  be  true,  then,  that  Congress  has  the  right  to  make  this  inquiry 
at  any  time,  it  certainly  is  true  that  it  has  the  right  to  make  it  now, 
when  the  question  is  as  to  the  counting  of  the  vote  of  a  State,  for  the 
question  then  is  whether  it  is  a  State  that  has  voted ;  and  in  deter 
mining  that  question  all  testimony  which  tends  to  show  the  condi 
tion  of  affairs  in  the  State  at  that  time  is  competent.  It  must  be 
competent,  else  it  would  be  impossible  that  the  two  Houses  should 
intelligent  determine  the  question  as  to  whether  there  was  a  repub 
lican  form  of  government  at  the  time  of  the  election. 

This  question  has  been  settled,  so  far  as  precedents  can  settle  it,  by 
the  objections  that  have  been  made  to  counts  and  by  the  action  of  the 
two  Houses  heretofore.  When  Missouri  and  Indiana  came  into  the 
Union,  and  electors  had  been  chosen  before  the  law  had  been  passed 


by  Congress  admitting  the  States,  it  was  objected  at  the  counting 
that  the  votes  should  not  be  counted,  because  when  given  they  were 
not  States  in  the  Union.  Nobody  disputed  at  that  time  that  that 
was  a  perfectly  fair  ground  of  objection.  It  was  within  the  province 
of  the  two  Houses  then  counting  the  vote  to  determine  whether  the 
State  had  been  admitted  into  the  Union  or  not ;  and  if  in  that  case 
they  had  the  power  to  determine  whether  it  had  been  admitted  into 
the  Union  or  not,  whether,  in  other  words,  it  was  a  State,  have  they 
not  the  power  to  determine  whether  by  adopting  a  government  not 
republican  in  its  form  it  has  gone  out  of  the  Union  ?  It  is  the  same 
question  in  both  cases,  whether  there  is  a  State  there  under  the  Con 
stitution  that  has  cast  the  vote,  the  only  difference  being  in  the  form 
in  which  the  questions  are  presented  to  the  two  Houses. 

When  the  Southern  States  were  in  rebellion  it  was  decided  that 
their  votes  should  not  be  counted,  and  during  the  process  of  recon 
struction  it  was  decided  that  they  should  not  be  counted  because 
there  were  not  governments  there  republican  in  form.  Congress  un 
dertook  to  decide  the  question  as  to  the  character  of  the  govern 
ment  when  it  counted  the  electoral  vote,  the  very  question  I  ask  this 
Commission  now  to  decide,  by  inquiring  as  to  the  condition  of  the  gov 
ernment  of  South  Carolina,  hearing  testimony  which  we  offer  to  sub 
mit  to  your  consideration  in  order  that  you  may  ascertain  whether 
there  is  in  fact  a  State  in  this  Union  purporting  to  be  the  State  of 
South  Carolina  which  has  cast  an  electoral  vote. 

But  admitting  that  the  State  of  South  Carolina  is  a  republic,  that 
it  has  a  republican  form  of  government,  I  submit  that  no  election  has 
been  held  as  required  by  the  constitution  of  the  State  of  South  Caro 
lina  and  by  the  Constitution  of  the  United  States.  The  Constitution 
of  the  United  States  requires  that  the  electors  shall  be  chosen  as  the 
Legislature  of  the  State  may  direct.  The  constitution  of  the  State  of 
South  Carolina  requires  that  the  Legislature  shall  from  time  to  time 
adopt  laws  of  registration. 

Mr.  Commissioner  BRADLEY.  Can  you  tell  me  the  date  of  the 
adoption  of  the  constitution  of  South  Carolina  ? 

Mr.  Representative  HURD.    The  language  is : 

It  shall  be  the  duty  of  the  Geueral  Assembly  to  provide  from  time  to  time  for 
the  registration  of  all  electors. 

My  friend  Mr.  Shellabarger  will  give  you  the  date.  I  believe  it 
was  1868. 

Mr.  Commissioner  ABBOTT.  Before  you  pass  from  this  other  mat 
ter,  Mr.  Hurd,  do  I  understand  yonr  claim  to  be  substantially  this : 
that,  passing  the  question  whether  there  is  a  republican  form  merely, 
such  was  the  condition  of  things  in  South  Carolina  from  the  interfer 
ence  of  the  military  and  the  violence  on  the  one  side  and  on  the  other 
side  that  there  was  not  a  free  election  which  should  certainly  under 
take  to  determine  the  election  of  electors  ? 

Mr.  Representative  HURD.  To  that  point  I  will  address  myself 
directly.  I  have  simply,  as  far  as  I  have  gone,  undertaken  to  say 
that  by  reason  of  the  existence  of  anarchy  in  the  State  of  South 
Carolina  there  was  no  government  at  all  and  could  not,  therefore,  be 
a  republican  form  of  government,  whether  in  the  constitution  or  in 
the  law  a  republican  form  might  ha^e  been  established  or  not. 

This  provision  of  the  constitution  of  South  Carolina  adopted  in  1868, 
article  8,  section  3,  I  regard  as  mandatory.  I  will  not  refer  to  the 
many  distinctions  made  between  statutes  that  are  directory  and 
statutes  that  are  imperative,  but  simply  to  this  that  wherever  a 
statute  or  a  provision  of  the  constitution  treats  of  that  which  is  of 
the  essence  of  the  thing,  then  it  shall  be  regarded  as  imperative  upon 
those  who  are  required  to  obey  its  provisions.  In  this  case  the  object 
was  to  secure  a  fair  and  honest  election  in  the  State  of  South  Caro 
lina.  Registration  was  required  a.s  a  means  to  that  end.  It  became, 
therefore,  of  the  essence,  in  the  opinion  of  the  framers  of  the  consti 
tution,  that  registration  should  be  made  in  order  to  secure  this  fair 
ness  of  election.  Most  of  the  States  of  the  Union  have  adopted  regis 
tration  laws  upon  the  same  theory. 

Mr.  Commissioner  BRADLEY.  Has  there  never  been  a  registration 
law  in  South  Carolina  ? 

Mr.  Representative  HURD.  There  has  been  no  registration  law 
passed  which  affects  or  relates  to  the  choosing  of  electors  and  by 
which,  in  the  important  matter  of  the  representation  of  the  State  in 
the  electoral  college,  this  provision  of  the  constitution  is  to  be  alone 
complied  with. 

I  insist,  as  I  was  about  to  remark,  that  not  only  have  they  not  passed 
a  law  upon  this  subject  with  reference  to  registration,  but  they  have 
passed  a  law  which  defeats  the  very  object  in  viewin  the  putting  of  the 
provision  into  the  Constitution.  They  have  enacted  a  law  which  has 
divided  the  State  of  South  Carolina  into  four  hundred  and  ninety-two 
precincts,  with  only  thirty-two  counties,  a  number  of  precincts  in 
each  county,  and  they  have  provided  that  every  voter  may  vote  at 
any  precinct  in  the  county  which  he  chooses.  The  consequence  is  that 
not  only  is  there  no  limitation  upon  the  power  of  the  voter,  so  far  as 
registration  is  concerned,  but  his  power  to  vote,  if  he  be  a  dishonest 
man,  is  limited  only  by  the  boundaries  of  his  county  and  the  number 
of  precincts  that  may  be  established  in  it.  The  consequence  is  that 
the  object  intended  to  be  accomplished  by  the  constitution  of  the  State 
of  South  Carolina  has  entirely  been  defeated,  and  a  larger  vote  in 
proportion  to  the  population  is  polled  this  day  in  the  State  of  South 
Carolina  than  in  any  other  State  in  the  Union. 

It  has  been  held  over  and  over  again  that  where  the  law  requires 


ELECTORAL  COMMISSION. 


183 


a  registration,  and  an  election  is  held  without  a  registration,  the 
election  is  void.    I  read  from  McCrary  on  Elections,  page  12  : 

It  being  conceded  that  the  power  to  enact  a  registry  law  is  within  the  power  to 
regulate  the  exercise  of  the  elective  franchise  and  preserve  the  purity  of  the  bal 
lot,  it  follows  that  an  election  held  iu  disregard  of  the  provisions  of  a  registry  law 
must  be  held  void. 

The  authorities  cited  for  the  support  of  the  provision  are  from  Mis 
souri  and  Wisconsin,  authorities  which  fully  sustain  the  text.  If 
that  be  the  effect  of  a  provision  of  statute,  what  shall  be  said  of  the 
effect  of  a  provision  of  the  constitution  of  the  State  which  has  been 
referred  to  f 

It  may  be  suggested  that  the  Legislature  has  the  power  under  the 
Constitution  of  the  United  States  to  provide  for  the  choosing  of  the 
electors,  and  that  the  constitution  of  the  State  was  not  authorized 
to  determine  it.  But  the  Legislature  of  the  State  is  organized  under 
the  constitution  of  the  State  ;  it  has  no  power  excepting  that  which 
the  constitution  confers,  and  in  these  matters  of  election  it  ia  deter 
mined  that  there  can  be  no  election  unless  there  shall  have  been  a  reg 
istration.  Here  then  there  has  been  a  refusal  to  regard  the  funda 
mental  law,  a  refusal  by  the  Legislature  to  regard  the  very  life  of 
its  being,  the  consequence  of  which  must  be  to  render  as  void  the 
election  as  though  there  had  been  on  the  part  of  the  ministerial  offi 
cers  only  a  disregard  of  a  statutory  provision. 

But  supposing  that  it  shall  be  held  that  there  was  a  republican  form 
of  government  iu  South  Carolina ;  supposing  that  it  shall  be  held  that 
the  election  was  regularly  and  constitutionally  conducted,  then  I  say 
that  the  testimony  which  we  propose  to  offer  in  this  case  shows  that 
the  intervention  of  the  military  authority  and  the  lawlessness  at 
the  polls  prevented  any  execution  of  the  ordinary  functions  of  gov 
ernment  and  destroyed  the  freedom  of  election.  We  propose  to  show 
that  on  the  17th  day  of  October  the  President  of  the  United  States 
issued  his  proclamation  declaring  that  a  state  of  insurrection  existed 
in  the  State  of  South  Carolina,  in  these  words: 

A  proclamation  by  the  President  of  the  United  States  of  America. 

"Whereas  it  has  been  satisfactorily  shown  to  me  that  insurrection  and  domestic 
violence  exist  in  several  counties  of  the  State  of  South  Carolina,  and  that  certain 
combinations  of  men  against  law  exist  in  many  counties  of  said  State,  known  as 
"rifle  clubs,"  who  ride  up  and  down  by  day  and  night  in  arms,  murdering  some 
peaceable  citizens  and  intimidating  others,  which  combinations,  though  forbidden 
by  the  laws  of  the  State,  cannot  be  controlled  or  suppressed  by  the  ordinary  course 
of  justice; 

And  whereas  it  is  provided  in  the  Constitution  of  the  United  States  that  the 
United  States  shall  protect  every  State  in  this  Union,  on  application  of  the  Legis 
lature,  or  of  the  executive,  when  the  Legislature  cannot  bo  convened,  against  do 
mestic  violence  ; 

And  whereas  by  laws  in  pursuance  of  the  above  it  is  provided  (in  the  laws  of 
the  United  States)  that,  in  all  cases  of  insurrection  in  any  State,  (or  of  obstruction  to 
the  laws  thereof,)  it  shall  be  lawful  for  the  President  of  the  United  States,  on  ap 
plication  of  the  Legislature  of  such  State,  or  of  the  executive,  when  the  Legisla 
ture  cannot  be  convened,  to  call  forth  the  militia  of  any  other  State  or  States,  or 
to  employ  such  part  of  the  land  and  naval  forces  as  shall  be  judged  necessary  for 
the  purpose  of  suppressing  such  insurrection  or  causing  the  laws  to  be  duly  exe 
cuted  ; 

And  whereas  the  Legislature  of  said  State  is  not  now  in  session  and  cannot  be 
convened  in  time  to  meet  the  present  emergency,  and  the  executive  of  said  State, 
under  section  4  of  article  4  of  the  Constitution  of  the  United  States  and  the  laws 
passed  in  pursuance  thereof,  has  therefore  made  due  application  to  me  in  the  prem 
ises  for  such  part  of  the  military  force  of  the  United  States  as  may  be  necessary 
and  adequate  to  protect  said  State  and  the  citizens  thereof  against  domestic  vio 
lence  and  to  enforce  the  due  execution  of  the  law; 

And  whereas  it  is  required  that,  whenever  it  may  be  necessary  in  the  judgment 
of  the  President  to  use  the  military  force  for  the  purpose  aforesaid,  he  shall  forth 
with,  by  proclamation,  command  such  insurgents  to  disperse  aud  retire  peaceably 
to  their  respective  homes  within  a  limited  time : 

Now,  therefore,  I,  Ulysses  S.  Grant,  President  of  the  United  States,  do  hereby 
make  proclamation  and  command  all  persons  engaged  in  said  unlawful  and  insur 
rectionary  proceedings  to  disperse  and  retire  peaceably  to  their  respective  abodes 
within  three  days  from  this  date,  and  hereafter  abandon  said  combinations  and 
submit  themselves  to  the  laws  and  constituted  authorities  of  said  State. 

And  I  invoke  the  aid  and  co-operation  of  all  good  citizens  thereof  to  uphold  the 
laws  and  preserve  the  public  peace. 

In  witness  whereof  I  have  hereunto  set  my  hand,  and  caused  the  seal  of  the 
United  States  to  bo  affixed. 

Done  at  the  city  of  Washington,  this  17th  day  of  October,  in  the  year  of  our  Lord 
1876,  and  of  the  independence  of  the  United  States  of  America  the  one  hundredth 
and  first. 

[L.  s.]  U.  S.  GRANT. 

By  the  President: 

JOHN  L.  CADWALADER, 

Acting  Secretary  of  State. 

This  proclamation  evidently  was  issued  in  attempted  pursuance  of 
a  provision  of  the  Constitution,  part  of  which  I  have  already  con 
sidered.  Its  language  is  that — 

The  United  States  shall  guarantee  to  every  State  in  this  Union  a  republican  form 
of  government,  and  shall  protect  each  of  them  against  invasion,  and  on  application 
of  the  Legislature,  or  of  the  executive,  when  the  Legislature  cannot  be  convened, 
against  domestic  violence. 

The  phraseology  of  this  article  of  the  Constitution  will  be  noticed ; 
it  is  protection  against  domestic  violence  ;  that  is,  protection  against 
that  violence  which  occurs  within  the  limits  of  the  State  and  as 
against  State  authority,  as  contradistinguished  from  such  violence  as 
amounts  to  a  rebellion  against  the  authority  of  the  United  States ; 
because  where  it  amounts  to  a  rebellion  against  the  authority  of  the 
United  States  then  the  power  to  suppress  it  arises  from  another  sec 
tion  of  the  Constitution.  It  must  be  upon  the  demand  of  the  Legis 
lature,  excepting  in  those  cases  where  the  Legislature  cannot  be  con 
vened.  What  is  the  meaning  of  that  provision  ?  It  occurs  to  me  that 
its  true  sense  is  that  where  by  reason  of  domestic  violence  it  is  im 


possible  that  the  Legislature  of  the  State  can  be  convened,  then  the 
executive  may  make  his  demand  upon  the  United  States  that  there  be 
protection  given.  As  suggested  already  in  what  I  have  said,  the  vio 
lence  must  be  directed  against  the  authority  of  the  State.  It  is  the 
State  that  is  protected  against  domestic  violence ;  it  is  not  the  indi 
viduals  within  the  State ;  it  is  not  the  citizens  of  the  State  ;  it  must 
be  such  domestic  violence,  therefore,  as  threatens  the  existence  of  the 
government,  as  is  directed  against  the  government,  such  domestic 
violence  as  amounts  to  insurrection.  In  1795  a  law  was  passed  in 
these  words,  found  in  the  Revised  Statutes  as  section  5297 : 

In  case  of  an  insurrection  in  any  State  against  the  government  thereof,  it  shall 
be  lawful  for  the  President,  on  application  of  the  Legislature  of  such  State,  or  of 
the  executive,  when  the  Legislature  cannot  bo  convenc-d,  to  call  forth  such  number 
of  the  militia  of  any  other  State  or  States,  which  may  bo  applied  for,  as  ho  deems 
sufficient  to  suppress  such  insurrection  j  or,  on  like  application,  to  employ,  for  the 
same  purposes,  such  part  of  the  laud  or  naval  forces  of  the  United  States  as  he 
deems  necessary. 

Section  5298  provides  for  those  cases  of  insurrection  which  occur 
against  the  Government  of  the  United  States,  where  the  President  of 
the  United  States  has  the  power  himself  directly  to  interfere  without 
the  request  of  the  State  authorities.  Section  5299,  which  was  passed 
in  1871,  provides  as  to  power  to  suppress  insurrection  in  violation  of 
civil  rights,  and  it  provides  that  where  insurrection  or  domestic  vio 
lence,  &c.j  occurs — 

Such  facts  shall  be  deemed  a  denial  by  such  State  of  the  equal  protection  of  the 
laws  to  which  they  are  entitled  under  the  Constitution  of  the  United  States  ;  and 
in  all  such  cases,  or  whenever  any  such  insurrection,  violence,  unlawful  combina 
tion,  or  conspiracy  opposes  or  obstructs  the  laws  of  the  United  States  or  the  due 
execution  thereof",  or  impedes  or  obstructs  the  due  conrseof  justice  under  the  same, 
it  shall  be  lawful  for  the  President,  and  it  shall  bo  his  duty,  to  take  such  measures, 
by  the  employment  of  the  militia  or  the  land  and  naval  forces  of  the  United  States, 
or  of  either,  or  by  other  means,  as  he  may  deem  necessary,  for  the  suppression  of 
such  insurrection,  domestic  violence,  or  combinations. 

The  President  was  acting  evidently  under  section  5297 ;  because, 
under  section  5298  and  section  5299,  it  would  be  perfectly  competent 
for  him  to  proceed  to  issue  his  proclamation  and  to  call  upon  the 
troops  without  any  demand  being  made  on  him  by  the  executive  of 
the  State  or  by  the  Legislature  of  the  State.  Therefore,  it  was  not 
an  insurrection  agaiust  the  Government  of  the  United  States,  nor  was 
it  an  interference  with  the  equal  rights  or  the  civil  rights  of  citizens 
under  the  law  that  the  President  was  attempting  to  suppress ;  it  was 
an  insurrection  against  the  government  of  the  State.  Who  is  to  de- 
termi  :e  whether  an  insurrection  existed  in  the  State  at  the  time  this 
demand  was  made  ?  The  governor  of  the  State  in  this  case  made  his 
demand  on  the  President  of  the  United  States.  But  his  decision  that 
there  was  an  insurrection  in  his  State  was  not  final,  because  he  was 
not  the  fiual  judge.  It  was  the  President  of  the  United  States  who 
was  to  determine  whether  an  insurrection  existed  there  or  not.  Now, 
let  us  see  what  his  determination  is  upon  the  point.  If  he  had  sim 
ply  said  that  there  was  an  insurrection  in  the  State,  possibly  we 
might  not  have  been  permitted  to  make  any  inquiry  on  the  subject- 
matter  ;  but  he  has  stated  what  the  insurrection  consisted  in,  what 
it  was.  It  was  that — 

Rifle  clubs  ride  up  and  down  by  day  and  night  in  arms,  murdering  some  peace 
able  citizens  and  intimidating  others,  which  combinations,  though  forbidden  by  the 
laws  of  the  State,  cannot  be  controlled  or  suppressed  by  the  ordinary  course  of 
ustice. 

I  submit  that  that  did  not  amount  to  an  insurrection  against  the 
government  of  the  State  of  South  Carolina.  It  was  a  mere  case  of 
violation  of  law,  a  case  iu  which  the  courts,  as  he  said,  might  be  power 
less  to  protect  the  citizen,  but  not  a  case  in  which  there  is  any  evi 
dence  that  the  military  authority  of  the  State  would  not  have  been 
sufficient  to  protect  the  citizen.  The  demand  was  made  for  troops, 
merely  upon  that  statement,  and  it  is  upon  that  statement  that  the 
proclamation  of  the  President  of  the  United  States  rests.  I  say  that 
it  does  not  show  a  state  of  insurrection  which  justified  him  in  issuing 
the  proclamation,  and  we  propose  to  sustain  that  proposition  by  offers 
of  testimony  that  at  the  time  this  proclamation  was  issued,  while 
there  may  have  been  intimidation  practiced  upon  voters,  while  there 
may  have  been  excited  efforts  to  carry  the  election  on  both  sides, 
there  was  no  such  insurrection  against  the  authority  of  the  gov 
ernment  of  the  State  as  required  the  intervention  of  the  national 
authority. 

\Ve  say  with  reference  to  this,  therefore,  that  there  was  no  insur 
rection  which  either  under  the  Constitution  or  the  law  justified  the 
interference  of  the  President  of  the  United  States.  We  say  that  the 
authority  of  the  government  of  the  State  of  South  Carolina  was  not 
in  danger.  We  say  that  the  demand  that  was  made  by  the  governor 
of  the  State  was  made  when  he  had  abundant  power  and  authority 
under  the  constitution  to  call  the  Legislature  together.  It  was  nearly 
a  month  until  the  election,  but  those  troops  were  kept  there  for  weeks 
after  the  election.  If  they  were  necessary  in  the  beginning  to  sup 
press  the  insurrection,  they  were  necessary  in  the  end,  and  in  that 
state  of  case  there  was  abundant  time  for  the  governor  of  the  State 
of  South  Carolina  to  issue  his  proclamation,  bring  his  Legislature 
together,  and  make  the  constitutonal  demand  upon  the  President  for 
Federal  interference. 

But  I  say,  in  addition  to  this  proposition,  that  the  troops  of  tho 
United  States  were  in  the  State  of  South  Carolina  unconstitutionally 
on  the  day  of  the  election ;  that,  when  they  were  there  so  unconsti 
tutionally,  they  violated  the  laws  of  the  United  States  which  gov- 


184 


ELECTORAL  COMMISSION. 


erned  them  in  the  performance  of  their  duties  as  to  elections.  Sec 
tions  2002  and  2003  of  the  Revised  Statutes  provide : 

Ko  military  or  naval  officer  or  other  person  engaged  in  the  civil,  military,  or 
naval  service  of  the  United  States  shall  order,  bring,  keep,  or  have  under  his  au 
thority  or  control  any  troops  or  armed  men  at  the  place  where  any  general  or 
special  election  is  held  in  any  State,  unless  it  bo  necessary  to  repel  the  armed  ene 
mies  of  the  United  States  or  to  keep  the  peace  at  the  polls. 

No  officer  of  the  Army  or  Navy  of  the  United  States  shall  prescribe  or  fix,  or  at 
tempt  to  prescribe  or  fix,  by  proclamation,  order,  or  otherwise,  the  qualifications  of 
voters  in  any  State,  or  in  any  manner  interfere  with  the  freedom  of  any  election  in 
any  State  or  with  the  exercise  of  the  free  right  of  suffrage  in  any  State. 

These  troops  in  South  Carolina,  as  I  have  shown,  unconstitu 
tionally  on  the  day  of  the  election,  violated  the  law  of  the  United 
States.  They  were  at  the  polls  where  there  was  no  trouble  at  all,  not 
for  the  purpose  of  keeping  the  peace,  but  for  the  purpose  of  interfer 
ing  with  the  freedom  of  the  election ;  and  we  propose  to  submit  to 
the  consideration  of  this  Commission  abundant  proof  to  show  that 
the  elections  in  many  precincts  of  the  State  of  South  Carolina  were 
held  in  the  immediate  presence  of  Federal  troops;  that  men  were  com 
pelled,  in  some  cases,  to  pass  through  files  of  Federal  soldiers  to  de 
posit  their  ballots.  We  propose  to  show  that,  without  any  excuse, 
the  deputy  marshals  of  the  United  States  called  upon  armed  forces 
to  interfere  and  to  aid  them  in  making  arrests.  We  propose  to  show 
that,  by  this  military  interference,  intimidation  was  practiced  directly 
under  the  authority  of  the  Federal  Government,  and  that  a  result  was 
reached  which  would  not  have  been  reached  had  the  military  been 
kept  out  of  the  State  or,  if  in  the  State,  had  been  kept  from  violating 
the  duty  imposed  upon  them  by  the  law.  Will  the  Commission  hear 
proof  as  to  this  point  ?,J 

I  submit  that  this  question  has  not,  been  passed  upon  by  this  Com 
mission  as  yet.  It  is  not  a  question  as  to  how  State  officers  have  per 
formed  their  duty ;  it  is  not  a  question  as  to  the  effect  of  a  return 
which  may  have  been  made  by  a  returning  board  ;  it  is  not  a  question 
as  to  the  powers  of  the  judiciary  to  interfere  with  the  action  of  the 
board  after  it  has  been  done  ;  but  it  is  a  question  of  vis  major  coming 
to  control  the  ballot-box,  take  charge  of  the  elections,  manage 
them,  and  give  as  the  expression  of  the  will  of  the  people  that  which 
is  not  the  expression  of  the  people's  will  at  all. 

I  insist,  if  your  honors  please,  that  if  the  Federal  Government, 
in  violation  of  the  Constitution,  in  violation  of  the  law,  sends  its 
txoops  to  a  State  and  prevents  a  free  election,  what  is  the  result  is 
not  The  true  voice  of  the  people  any  more  than  if  they  had  been  the 
troops  of  Great  Britain  or  France  that  had  interfered  in  the  State 
and  prevented  the  free  voice  of  the  people  from  being  expressed.  I 
maintain,  therefore,  no  decision  had  been  made  by  this  Commission 
which  prevents  proof  upon  this  subject.  We  offer  to  make  the  proof 
that  the  troops  of  the  Federal  Government  were  there  unconstitu 
tionally;  that  they  were  there  on  the  day  of  election  in  violation  of 
law ;  and  that  by  their  presence  they  interfered  with  the  freedom  of 
the  election  and  prevented  the  real,  true  voice  of  the  State  of  South 
Carolina  from  being  expressed. 

At  the  very  first  session  or  nearly  the  first  session  of  the  Congress 
'of  the  United  States  a  member  sought  to  take  his  seat  elected  from 
one  of  the  States  of  the  Union  to  whom  objection  was  made  upon  the 
ground  that  he  had  been  chosen  when  the  military  power  was  present 
at  the  polls.  Our  fathers,  true  to  what  they  had  learned  from  their 
ancestry,  held  that  the  election  was  absolutely  void  and  the  seat  was 
refused  to  him.  In  England  from  1741  until  this  day  there  has  never 
been  such  an  interference  with  the  freedom  of  elections  as  has  oc 
curred  in  the  State  of  South  Carolina  within  the  last  six  months. 
From  the  time  that  the  three  magistrates  were  compelled  to  kneel 
before  the  speaker  of  the  Commons  and  receive  the  reprimand  of  the 
Commons  until  this  day  military  interference  with  elections  seems  in 
England  to  have  been  unknown.  It  is  reserved  for  this  Republic  to 
permit  military  interference  without  rebuke  and  without  opposition. 

Gentlemen  of  the  Commission,  there  are  two  propositions  which 
should  never  be  forgotten  in  a  republic:  First,  that  free  and  honest 
elections  are  essential  to  its  existence  and,  second,  that  the  civil 
power  should  be  superior  to  the  military  at  every  point  and  free  from 
every  suggestion  of  its  influence.  These  two  doctrines  are  the  very 
soul  of  free  institutions.  The  one  puts  the  breath  into  the  body-poli 
tic  and  the  other  preserves  the  life  that  that  breath  imparts.  The 
one  declares  the  will  of  the  people,  the  other  sees  to  it  that  that  will 
is  expressed  in  all  the  majesty  of  its  power,  free  from  all  restraint 
and  control  from  all  persons  whatsoever,  excepting  as  it  may  have 
imposed  restraints  voluntarily  upon  itself. 

These  propositions  have  been  defended  with  a  devotion  that  never 
flagged  and  with  a  watchfulness  that  never  slumbered,  wherever 
republics  have  continued.  The  decay  of  a  republic  always  begins 
in  the  indifference  of  the  people  to  the  maintenance  of  these  doctrines. 
Indeed,  in  all  history,  as  the  republic  has  receded  and  the  empire  has 
advanced,  the  infallible  test  by  which  to  mark  the  growth  of  the  one 
and  the  decay  of  the  other  has  been  the  regard  in  which  the  people 
held  the  freedom  of  their  elections  and  military  interference. 

May  this  Republic  be  saved  from  the  end  to  which  the  unrebuked 
and  successful  interference  of  the  United  States  in  South  Carolina's 
elections  will  inevitably  lead ! 

Mr.  Representative  COCHRANE.  Mr.  President,  I  desire  to  say  that 
Judge  Black  and  Mr.  Blair  will  appear  as  counsel.  The  objectors  to 
certificate  No.  1  had  thought  that  counsel  would  not  be  able  to  at 
tend,  but  we  find  that  Judge  Black  and  Mr.  Blair  can  attend,  and 
they  are  here. 


The  PRESIDENT.  It  is  very  proper  to  notify  us  before  we  pro 
ceed  further. 

Mr.  Representative  COCHRANE.  Before  the  gentleman  objecting 
to  certificate  No.  2  is  heard,  I  desire  to  submit  certain  offers  of  evi 
dence. 

The  PRESIDENT.  Will  there  be  any  further  argument  on  behalf 
of  the  objectors  on  your  side  ? 

Mr.  Representative  COCHRANE.  No,  sir,  no  more  argument.  Mr. 
Hurd  has  covered  the  ground,  and  I  do  not  propose  to  argue  it ;  but 
I  propose  to  submit  certain  offers  of  evidence  which  I  will  read  to  the 
Commission  and  ask  the  attention  of  the  Commission  to  them. 

"  In  support  of  the  objections  to  certificate  No.  1  it  is  proposed  to 
prove  by  competent  evidence  the  following  facts,  which  said  facts 
are  offered  separately,  and  as  a  whole  : 

"I.  That  by  reason  of  the  failure  and  refusal  of  the  Legislature  of 
South  Carolina  to  provide  for  a  registration  of  electors,  as  required  by 
article  8,  section  3,  of  the  constitution  of  said  State,  and  by  reason  of 
the  acts  passed  by  said  Legislature  in  violation  of  the  spirit  of  such 
constitution,  great  frauds  were  perpetrated  by  colored  republican 
voters ;  that  at  least  three  thousand  illegal  votes  were  cast  for  the 
Hayes  electors,  which  said  votes  being  excluded  would  give  a  ma 
jority  to  the  Tilden  electors. 

"  II.  That  immediately  after  the  adjournment  of  Congress,  to  wit, 
in  the  month  of  August,  A.  D.  1876,  a  large  number  of  the  United 
States  soldiers  under  command  of  General  Ruger,  were  sent  by  the 
President  into  said  State;  that  on  October  16,  General  Ruger  tele 
graphed  to  the  authorities  at  Washington  that  all  was  quiet,  that 
there  was  no  need  for  further  troops,  that  if  he  (Ruger)  deemed 
further  force  necessary  he  would  call  for  the  same ;  that  he  never  did 
call  for  more  troops,  but  that  on  October  17,  the  President  issued  a 
proclamation  declaring  that  the  people  of  said  State  were  in  a  con 
dition  of  insurrection,  and  that  immediately  thereafter  large  num 
bers  of  United  States  soldiers  were  sent  into  said  State ;  that  at  no 
time  prior  to  the  last-mentioned  date,  was  there  a  condition  of  vio 
lence  or  insurrection  which  the  authorities  of  the  State  were  unable 
to  control ;  that  at  no  time  during  the  year  1876,  did  such  a  state  of 
affairs  exist  in  South  Carolina  as  justified  the  intervention  of  the 
Federal  Government. 

"  III.  That  the  troops  were  sent  into  said  State  without  any  action 
of  the  Legislature  thereof,  although  the  same  could  have  been  readily 
convened. 

"  IV.  That  the  troops  were  sent  into  said  State,  not  for  the  pur 
pose  of  quelling  insurrection  and  preserving  peace  and  good  order, 
but  for  the  purpose  and  with  the  design  of  overawing  the  voters  of 
said  State ;  that  said  troops  were  stationed  at  and  near  the  polls  on 
election  day,  and  that  their  presence  before  and  at  the  day  of  the 
election  did  obstruct  and  interfere  with  an  expression  of  the  popular 
will  and  prevent  a  free  election. 

"  V.  That  the  presence  of  said  troops  served  to  embolden  the  more 
desperate  of  the  negroes ;  being  assured  by  their  party  leaders  that 
said  troops  were  there  for  the  purpose  of  protecting  them  in  any  act 
of  violence,  the  blacks  throughout  the  counties  of  Beaufort  and  Charles 
ton  inaugurated  a  condition  of  riot  and  lawlessness ;  that  the  repub 
lican  officials  incited  them  to  the  commission  of  every  character  of 
crime;  that  murder  was  committed,  and  the  perpetrators  allowed  to 
escape  punishment;  that  justices  refused  to  issue  warrants  for  the 
arrest  of  criminals  charged  even  with  the  crime  of  murder,  and  sheriffs 
refused  to  execute  such  warrants  if  issued  ;  that  the  police  force  of 
the  city  of  Charleston,  composed  almost  entirely  of  republican  ne 
groes,  employed  its  time  in  shooting  down  upon  the  public  streets 
quiet  and  inoffensive  white  men,  members  of  said  force  being  in 
many  instances  leaders  in  the  riots  which  occurred  ;  that  upon  elec 
tion  day  the  negroes  assembled  at  the  polls,  and  with  rifles,  shot-guns, 
and  other  weapons  prevented  negroes  who  desired  so  to  do  from  vot 
ing  the  democratic  ticket ;  that  the  State  militia,  composed  of  the 
worst  element  of  the  negro  population  and  supplied  with  State  arms, 
was  also  at  the  polls  aiding  and  abetting  in  the  violation  of  law  and 
in  the  intimidation  of  voters ;  that  the  sheriff  of  Charleston  County, 
is  one  of  the  republican  electors." 

I  refer  to  Mr.  C.  C.  Bowen — "without  warrant  or  authority  of  law 
appointed  hundreds  of  so-called  deputy  sheriffs,  all  negroes  and  re 
publicans,  investing  them  with  the  power  to  make  arrests  at  their 
pleasure ;  that  these  deputy  sheriffs  swarmed  about  tha  various  polls 
on  election  day,  and  by  their  threats  of  violence  did  hinder  and  pre 
vent  many  citizens  from  voting,  and  did  arrest  and  imprison  without 
information  or  warrant  many  of  those  who  attempted  to  vote  the 
democratic  ticket ;  that  persons  styled  United  States  deputy  marshals 
were  also  stationed  at  the  polls  aiding  and  assisting  said  deputy  sher 
iffs;  that  throughout  the  State  the  negroes  believed  that  the  United 
States  soldiers  had  been  sent  to  shoot  them  if  they  did  not  vote  the 
republican  ticket. 

VI.  "That  such  violence  and  lawlessness  existed  throughout  the 
counties  of  Charleston  and  Beaufort  shortly  before  and  on  the  day  of 
the  election,  which  said  lawlessness  was  primarily  attributable  to  the 
occupation  of  the  State  by  United  States  soldiers,  that  no  free  elec 
tion  could  be  or  was  held  in  said  counties;  but  that  upon  the  con 
trary  the  popular  will  found  no  expression  at  the  polls;  that  by 
reason  of  the  lawlessness  which  existed  in  the  county  of  Charles 
ton  alone  the  republican  electors  secured  a  majority  of  about  7,000 
votes." 

Very  few,  if  any,  of  the  republican  electors  in  the  State  had  a  ma- 


ELECTORAL  COMMISSION. 


185 


jority  of  more  than  a  thousand  in  the  whole.  The  majority  in  the 
county  of  Charleston  alone,  rolled  up  by  means  of  these  terrible 
frauds  and  outrages  on  law  and  liberty,  was  7,000. 

In  that  connection  I  will  call  the  attention  of  the  Commission  to 
one  section  in  Blackstone  which  states  the  principle  more  tersely 
than  I  could.  I  refer  to  1  Blackstone's  Commentaries,  page  17«  : 

And,  as  it  is  essential  to  the  very  being  of  Parliament  that  elecf  ions  should  be  abso- 


ment,  "  if  he  employs  the  force,  treasure,  and  offices  of  the  society  to  corrupt  the 
representatives,  or  openly  to  pre-engage  the  electors  and  prescribe  what  manner  of 
persons  shall  be  chosen.  For  thus  to  regulate  candidates  and  electors,  and  new- 
model  the  ways  of  election,  what  is  it  (says  he)  but  to  cut  up  the  government  by 
the  roots,  and"  poison  the  very  fountain  of  public  security  ? >f  As  soon,  therefore, 
as  the  time  and  place  of  election,  either  in  counties  or  boroughs,  are  fixed,  all  sol 
diers  quartered  in  the  place  are  to  remove,  at  least  one  day  before  the  election,  to 
the  distance  of  two  miles  or  more,  and  not  to  return  till  one  day  after  the  poll  is 
ended.  Kiots  likewise  have  been  frequently  determined  to  make  an  election  void. 

The  PRESIDENT.  The  Commission  will  now  hear  the  objectors 
to  Certificate  No.  2. 

Mr.  Representative  LAWRENCE.  Mr.  President  and  gentlemen  of 
the  Commission,  if  the  proceedings  of  this  Commission  and  its  decis 
ions  were  only  to  be  read  and  judged  of  by  learned  lawyers  familiar 
with  the  truth  of  history  in  all  that  pertains  to  the  electoral  vote  of 
South  Carolina,  I  would  not  deem  it  necessary  to  say  one  word  upon 
the  questions  which  are  now  submitted  for  consideration.  But  they 
are  to  be  read  by  others  who  may  not  so  well  understand  them,  and 
for  this  reason  it  may  be  proper  to  submit  seme  remarks.  If  I  had 
not  ceased  to  be  surprised  at  anything  that  might  be  urged  on  some 
political  questions,  however  unwarranted,  I  might  confess  to  astonish 
ment  at  the  objections  made  to  the  electoral  vote  of  this  State  as  cast 
for  Rutherford  B.  Hayes  for  President  and  William  A.  Wheeler  for 
Vice-President. 

But  when  objections  are  made  upon  official  responsibility  they  must 
be  met  and  considered. 

Mr.  Representative  COCHRANE.  If  the  gentleman  will  excuse 
me,  I  believe  it  is  customary  when  an  offer  of  proof  is  made  that  the 
objector  shall  determine  upon  the  other  side  whether  he  objects  to 
its  reception.  I  would  therefore  ask  the  gentleman  to  say,  before 
proceeding  with  his  argument,  whether  he  objects  to  our  proving  the 
facts  as  stated  in  these  offers  of  proof  ? 

Mr.  Representative  LAWRENCE.  Mr.  President  and  gentlemen, 
I  suppose  this  Commission  would  not  receive  proofs  which  were  clearly 
incompetent,  however  much  I  might  undertake  to  consent. 

Mr.  Representative  COCHRANE.     But  do  you  object  ? 

Mr.  Commissioner  HOAR.  Mr.  President,  I  understand  that  under 
the  rules  of  the  Commission  the  discretion  of  objecting  to  testimony 
or  consenting  to  its  admission  is  lodged  with  counsel,  on  the  ground 
that  they  are  to  have  the  management  of  the  cause,  and  that  question 
I  suppose  should  properly  be  addressed  to  counsel  on  that  side,  and 
not  to  Judge  Lawrence,  the  objector. 

The  PRESIDENT.  I  am  inclined  to  think  that  is  the  correct  view. 
It  is  the  office  of  counsel  to  object. 

Mr.  Representative  COCHRANE.    Very  well,  sir. 

The  PRESIDENT.  And  also  for  counsel  to  offer  usually.  I  will 
propound  the  question  in  due  season  to  counsel. 

Mr.  Representative  LAWRENCE.  To  this  I  can  only  add,  that  if 
the  counsel  who  represent  the  Hayes  electors  shall  deem  it  proper  to 
offer  proof,  and  if  this  Commission  shall  deem  it  lawful  to  hear  it,  we 
shall  by  abundant  testimony  be  able  to  disprove  every  material  alle 
gation  made  by  the  objectors  on  the  other  side.  We  shall  be  able  to 
show  that  by  reason  of  intimidation  and  violence  practiced  by  demo 
cratic  politicians  and  organized  democratic  rifle  clubs  in  the  State  of 
South  Carolina  many  thousands  of  republican  voters  were  driven 
away  or  kept  away  from  the  polls,  and  that  but  for  this  intimidation 
and  violence  the  majority  for  the  so-called  Hayes  electors  would  have 
been  many  thousands  more  than  it  was. 

I  will  first  direct  the  attention  of  the  Commission  to  the  papers 
purporting  to  be  certificates  of  electoral  votes  cast  for  Samuel  J.  Til- 
den  for  President  and  for  Thomas  A.  Hendricks  for  Vice-President 
by  Theodore  G.  Barker  and  others  claiming  to  be  electors  for  South 
Carolina. 

To  these  I  object — 

1.  Because  they  are  here  without  the  certificate  required  by  sec 
tions  136  and  138  of  the  Revised  Statutes  of  the  United  States. 

These  sections  require  that  there  shall  be  annexed  to  the  certifi 
cates  of  the  votes  cast  by  electors  a  "  list  of  the  names  of  the  electors 
*  *  *  made  *  *  *  certified,  and  *  *  *  furnished  to  them 
by  direction  of  the  executive  of  the  State." 

'2.  Because  they  are  here  without  the  certificate  required  by  the 
statute  of  South  Carolina.  * 

By  chapter  IX  of  the  Revised  Statutes  of  South  Carolina  of  1873, 
section  15,  it  is  provided  that  the  secretary  of  state  shall  prepare 
lists — 

of  the  names  of  the  electors,  procure  to  the  same  the  signature  of  the  governor 
alfix  thereto  the  seal  of  tho  State,  and  deliver  them  thus  signed  and  sealed  to  the  pres 
ideut  of  the  college  of  electors.— Revised  Statutes  South  Carolina,  page  36. 

The  certificate  thus  described  in  the  statute  is  that  which  is  re 
quired  by  the  sections  of  the  revised  statutes  to  which  I  have  re 
ferred.  The  record  of  these  so-called  electors  affirmatively  shows  thai 


;hey  never  received  any  certificate,  so  that  there  is  no  room  to  make 
inquiry  as  to  any  presumption  to  support  their  authority. 

3.  The  assumed  authority  of  these  so-called  electors  is  overthrown 
by  the  fact  that  C.  C.  Bowen  and  others,  electors  of  President  and 
Vice-President  for  South  Carolina,  cast  their  votes  for  Hayes  and 
Wheeler,  and  these  are  here  in  proper  form  and  with  a  certificate  un 
der  the  great  seal  of  the  State  duly  signed  by  the  governor  and  sec 
retary  of  state  as  evidence  of  the  authority  of  the  electors,  in  tho 
form  required  by  the  act  of  Congress  and  the  statute  of  South  Car 
olina. 

The  assumed  authority  of  Barker  and  his  associates  as  electors  is 
not  only  without  evidence  to  support  it,  but  it  is  overthrown  by  evi- 
lence  which  proves  in  due  form  of  law  the  authority  of  Bowen  and 
tiis  associates  who  voted  for  Hayes  and  Wheeler. 

The  "  Tilden  electors,"  Barker  and  others,  were  therefore  not 
"  duly  appointed  electors  in  "  South  Carolina,  and  the  votes  by  them 
cast  are  not  "  the  votes  provided  for  by  the  Constitution." 

Mr.  Commissioner  ABBOTT.  I  do  not  understand  that  Mr.  HURD 
on  the  other  side  claimed  that  this  certificate  No.  2  should  be  counted, 
but  the  objection  was  to  counting  the  votes  of  the  electors  named  in 
certificate  No.  1. 

Mr.  Representative  LAWRENCE.  Still  this  certificate  is  here  and 
we  have  made  objections  to  it ;  and  I  will  in  a  very  few  words  state 
the  reasons  why  that  certificate  should  not  be  counted.  It  is  that  cer 
tificate  that  sends  the  case  here. 

Mr.  Commissioner  MILLER.  If  nobody  claims  that  it  ought  to  be 
counted,  I  hardly  think  that  it  is  worth  while  tt>  waste  time  upon  it. 

Mr.  Representative  LAWRENCE.  Very  well.  This  then  brings 
us  to  the  inquiry  as  to  the  legal  appointment  of  the  Hayes  electors, 
Bowen  and  others,  and  the  validity  of  the  votes  they  gave  for  Presi 
dent  and  Vice-President.  From  the  evidence  to  which  I  have  al 
ready  referred  it  is  sufficiently  shown  that  they  were  duly  appointed 
electors,  and  that  the  votes  they  gave  for  Hayes  for  President  and  for 
Wheeler  for  Vice-President  are  "  the  votes  provided  for  by  the  Con 
stitution"  unless  some  one  of  the  five  objections  made  to  them  shall 
be  well  taken. 

These  several  objections  I  will  proceed  very  briefly  to  notice. 

The  first  objection  is  : 

1.  That  no  legal  election  was  held  in  South  Carolina  for  presidential  electors,  the 
General  Assembly  of  that  State  not  having  provided,  as  required  by  article  8,  sec 
tion  3  of  the  constitution  thereof,  for  the  registration  of  persons  entitled  to  vote, 
without  which  registration  no  valid  or  legal  election  could  be  held. 

The  Constitution  of  South  Carolina  provides  that — 

It  shall  be  the  duty  of  the  General  Assembly  to  provide  from  time  to  time  for 
the  registration  of  all  electors. 

And  it  is  assumed  that  a  failure  to  provide  for  the  registration  will 
defeat  the  title  to  office  of  presidential  electors  chosen  by  popular 
vote. 

In  reply  to  this,  it  is  proposed  now  to  show — 

1.  That  clause  of  the  constitution  as  to  registration  is  DIRECTORY,  and 
a  failure  to  comply  with  it  cannot  affect  the  result  of  an  flection. 

2.  The  State  constitution  cannot  take  from  theLegislatwrethe  power  given 
to  it  by  the  Constitution  of  the  United  States  to  provide  for  the  appointment 
of  electors  without  registration,  "  in  such  manner  as  the  Legislature  may  di 
rect." 

3.  The  Legislature  HAS  COMPLIED  with  the  constitutional  provision  re 
quiring  registration. 

To  each  of  these  points  I  will  briefly  call  the  attention  of  the  Com 
mission. 

1.  This  provision  of  the  constitution  is  DIRECTORY,  resting  for  its  execu 
tion  on  the  conscience  of  the  Legislature;  and  a  failure  to  procide  for  reg 
istration  does  not  invalidate  or  affect  the  result  of  the  election. 

This  position  may  be  illustrated  by  a  clause  in  the  constitution  of 
Ohio. 

The  constitution  of  Ohio  provides  as  to  the  Legislature  that — 

Kb  bill  shall  contain  more  than  one  subject,  which  shall  be  clearly  expressed  in 
its  title. 

But  the  supreme  court  has  said  this  provision — 

is  directory  only,  and  the  supervision  of  its  observance  must  be  left  to  the  General 
Assembly.  *  »  *  It  is  not  to  be  enforced  by  judicial  interposition.  * 
would  be  most  mischievous  in  practice  to  make  the  validity  of  every  law  to  depend 
upon  the  judgment  of  every  j  udicial  tribunal  as  to  whether  an  act  or  bi  11  contained 
more  than  one. subject.  *  *  *  The  only  safeguard  against  the  violation  of  those 
rules  of  the  houses  is  their  regard  for  and  their  oath  to  support  the  constitution.— 
6  Ohio  State  Reports,  176. 

Here  was  a  duty  imposed  by  the  constitution  on  the  Legislature, 
but  a  neglect  of  this  duty  does  not  invalidate  laws  which  fail  to  con 
form  to  the  constitutional  requisition. 

The  Constitution  of  the  United  States,  higher  than  any  State  con 
stitution,  requires  the  State  Legislatures  to  provide  for  the  appoint 
ment  of  electors.  A  failure  by  the  Legislatitre  to  follow  all  the  direc 
tions  of  the  State  constitution  as  to  the  registration  of  voters  cannot 
defeat  the  duty  imposed  on  the  State  by  the  "higher  law"  of  the 
supreme  National  Constitution  or  disfranchise  a  State  in  the  election 
of  a  President. 

The  right  of  the  National  Gorernmentto  have  each  State  participate 
in  a  presidential  election  cannot  be  defeated  by  the  wrong  of  tho  Leg 
islature  in  not  complying  with  the  directions  of  the  State  constitu 
tion.  The  right  of  the  entire  people  of  the  United  States  to  have  all 
tho  States  represented  in  the  choice  of  a  President  can  not  be  defeated 
by  the  wrong  stated. 


J86 


ELECTORAL  COMMISSION. 


The  constitution  of  South  Carolina  requires  the  election  of  State  and 
county  officers  by  popular  vote.  To  say  that  an  election  is  void  with 
out  a  registration  law  is  to  affirm  that  the  Legislature  may  dissolve  the 
entire  State  and  local  government  and  produce  anarchy.  Certainly 
the  convention  which  made  the  constitution  never  intended  so  dis 
astrous  a  result  to  follow  the  omission  to  enact  a  registry  law.  Yet 
if  this  omission  defeats  the  right  of  the  State  to  representation  in  the 
electoral  college,  it  would  legalize  a  fearful  anarchy ;  it  would  enable 
a  State  practically  to  withdraw  from  the  Union ;  it  would  be  "seces 
sion  made  easy." 

The  statute  regulating  elections  in  this  State  provides  that — 
All  bar-rooms,  saloons,  and  other  places  for  the  sale  of  liquors  by  retail  shall  be 
closed  at  six  o'clock  of  the  evening  preceding  the  day  of  election  and  remain  closed 
until  six  o'clock  on  the  morning  of  the  day  thereafter ;  and  during  the  time  afore 
said  the  sale  of  all  intoxicating  liquors  is  prohibited. 

And  a  penalty  is  provided  on  conviction. 

If  the  State  can  be  deprived  of  its  electoral  vote  for  want  of  a  reg 
istration  law,  it  might,  with  equal  propriety,  be  so  deprived  by  the 
non-enforcement  of  this  provision,  for  it  is  a  part  of  the  election  ma 
chinery  prescribed  by  the  Legislature  for  the  appointment  of  electors. 

It  is  the  duty  of  the  Legislatures  in  many  States  to  "pass  laws  to 
preserve  the  purity  of  elections,"  but  a  failure  to  do  so  could  not  in 
validate  the  election  held  in  this  State. 

The  claim  now  set  up  would  invest  Congress  with  a  power  to  fur 
nish  pretexts  for  disfranchising  States  and  dictate  the  selection  of  a 
President.  The  legislative  power  would  absorb  the  executive  and 
defeat  the  purpose  of,  the  Constitution.  This  is  a  danger  which  the 
framers  of  the  Constitution  never  intended  to  authorize.  It  has  been 
forcibly  said  that  "  if  there  was  no  check  upon  the  tyranny  of  legis 
lative  majorities  the  prospect  before  us  would  be  gloomy  in  the  ex 
treme."  (1  Kent,  450,  note,  llth  ed.)  One  of  the  "  checks  "  provided 
by  the  Constitution  is  that  the  electoral  votes  forwarded  in  due  form 
from  the  States  should  not  be  rejected  by  "the  tyranny  of  legislative 
majorities,"  but  should,  when  opened,  "  then  be  counted." 

In  the  light  of  authority  and  reason,  it  seems  certain  the  omission  to 
enact  a  registration  law  cannot  affect  the  appointment  of  electors. 

Upon  this  whole  subject,  I  will  refer  the  Commission  to  authorities 
as  follows :  Pirn  vs.  Nicholson,  6  Ohio,  St.  R.,  170 ;  Sedgwick  on  Sta 
tutes,  377-570.  To  the  same  effect  is  Miller  vs.  State,  3  Ohio  St.,  475 ; 
People  vs.  Supervisors,  4  Selden.  317  ;  Washington  vs.  Murray,  4  Cal., 
388 ;  Davis  vs.  State,  7  Maryland,  151 ;  Battle  vs.  Howard,  13  Texas, 
345.  And  see  Haywood  on  County  Elections,  511 ;  Golden  vs.  Sharp, 
Clark  &  Hall,  410;  Van  Renslaer  vs.  Van  Allen,  Clark  &  Hall,  73; 
Arnold  vs.  Lea,  Clark  &  Hall,  601 ;  Lyon  vs.  Smith,  Clark  &  Hall,  101 ; 
Orkney  &  Shetland,  Frazier  I,  369  ;  (see  Seaford,  Laders  III,  3 ;  Case 
of  David  Bard,  Clark  &  Hall,  116;  Porterfield  vs.  McCoy,  Clark  & 
Hall,  267  ;  Colchester,  Pickerel]  I,  503-507 ;  Easton  vs.  Scott,  Clark 
&  Hall,  267 ;  Colchester,  Pickerell  I,  503-507  ;  Easton  vs.  Scott,  Clark 
&  Hall,  272  ;  Gallary  vs.  Merrill,  Clarke  &  Hall,  328 ;  Draper  rs. 
Johnston,  Clark  &  Hall,  703;  Spaulding  vs.  Mead,  Clarke  &  Hall, 
157  ;  Standish,  dishing.  S.  &  J.,  82 ;  Chatham,  Gushing,  S  &  J.,  423  ; 
West,  Boylston,  Gushing,  S.  &  J.,  394;  Cochester,  Pickerell  I,  506; 
Limerick,  Perry  &  Knapp,  355 ;  Cochrane  &  Eowe,  288 ;  Warwick, 
Gushing,  S.  &  J.,  401 ;  McCrary  on  Elections,  see  123-130. 

I  now  proceed  to  show — 

2.  That  the  Slate  constitution  cannot  take  from  the  Legislature  the  right 
given  to  it  by  the  Constitution  of  the  United  States  to  appoint  electors  with 
out  a  registration  of  voters  "in  such  manner  as  the  Legislature  thereof  may 
direct." 

In  other  words,  if  the  State  constitution  requires  the  Legislature 
to  enact  a  registry  law  for  the  purpose  of  choosing  electors  it  is  un 
constitutional. 

The  Constitution  of  the  United  States  provides  that — 

Each  State  shall  appoint  [electors]  in  such  manner  as  the  Legislature  thereof 
may  direct. 

In  every  State  the  Legislature  has  provided  by  law  for  the  appoint 
ment  of  electors  by  popular  vote.  This  is  done  in  pursuance  of 
authority  given  to  the  Legislature  by  the  Constitution  of  the  United 
States. 

Mr.  Commissioner  ABBOTT.  Permit  me  to  ask  you  a  question.  Do 
you  mean  to  say  that  it  is  unconstitutional  for  a  State  constitution 
to  provide  that  elections  shall  take  place  by  a  registry  law  ? 

Mr.  Representative  LAWEENCE.  I  do.  I  mean  to  say  that  the  man 
ner  of  the  appointment  of  electors  of  President  and  Vice-President  is 
by  the  Constitution  of  the  United  States  intrusted  solely  to  the  discre 
tion  of  the  State  Legislature,  and  that  it  is  absolutely  uncontrollable 
by  any  provision  of  a  State  constitution.  That  is  precisely  what  I 
mean  to  say. 

This  legislative  authority  exists  not  by  force  of  any  State  constitu 
tion,  but  the  "  supreme  law  "  above  it.  As  the  power  is  derived  from 
the  Constitution  of  the  United  States,  and  is  given  in  plenary  and  un 
limited  terms,  the  State  Legislature  is  made  the  exclusive  judge  of  the 
manner  in  which  popular  elections  shall  be  authorized,  regulated, 
conducted,  and  the  result  declared,  subject  only  to  the  obligations  of 
the  amendments  of  the  Constitution  in  relation  to  suffrage  and  such 
regulations  as  Congress  may  be  authorized  to  make. 

A  State  constitution  can  no  more  require  a  "  registration  law  " 
against  the  judgment  of  the  Legislature  than  it  can  impose  restraints 
on  the  powers  given  by  the  national  Constitution  to  Congress. 

The  provision  of  the  South  Carolina  constitution  requiring  a  regis 


tration  law  is  itself  unconstitutional  and  void,  so  far  as  it  attempts 
to  impose  a  duty  on  the  Legislature  to  require  registration  of  voters 
authorized  to  participate  in  the  appointment  of  electors. 

This  may  be  illustrated  by  other  provisions  of  the  Constitution  of 
the  United  States.  This  provides  that — 

The  times,  places,  and  manner  of  holding  elections  for  Senators  and  Represent 
atives  shall  be  prescribed  in  each  State  by  the  Legislature  thereof ;  but  the  Congress 
may  at  any  time  by  law  make  or  alter  such  regulations,  &c. 

In  discussing  the  powers  of  State  constitutional  conventions,  Jame 
son,  a  law-writer  of  acknowledged  authority,  denies  in  emphatic 
terms  that  they  can  make  any  regulation  affecting  "  the  times,  places, 
or  manner  of  holding  elections  for  Representatives  in  Congress."  He 

says: 

The  rule  is  general,  that  it  is  the  State  Legislatures  which  apportion  their  several 
States  for  congressional  electors.  (Jameson  on  Constitutional  Conventions.  West 
Virginia  contested-election  cases,  first  session  Forty-third  Congress  •  Congressional 
Record,  35,  36,  38,  46,  816-819,  842-849,  875-880,  884-890,  931-937,  958-963  •  Speers's 
speech,  Appendix,  34.) 

And  he  shows  that  the  exceptional  cases  in  which  constitutional  con 
ventions  have  provided  for  the  election  of  Representatives,  upon  the 
creation  of  a  new  State,  derive  their  validity  from  the  action  of  Con 
gress  in  ratifying  them.  His  language  is,  that  Congress — 
haying  the  power  to  "make  or  alter,"  Congress  doubtless  might  ratify  such  regu 
lations,  however  made ;  or  if  a  State,-  actual  or  inchoate,  were  in  such  a  condition 
that  it  had  no  lawful  Legislature,  Congress  might  itself,  for  the  sake  of  convenience 
establish  them  by  its  direct  action. 

The  great  American  commentator,  whose  researches  explored  every 
field  of  legal  learning  and  left  their  impress  on  all,  whose  emphatic 
words  I  commend  to  my  learned  friend  the  Commissioner  from  Mas 
sachusetts,  [Mr.  ABBOTT,]  Mr.  Justice  Story,  in  the  Massachusetts  con 
stitutional  convention  of  1820,  in  discussing  this  subject,  said : 

The  question  then  was  whether  we  have  a  right  to  insert  in  our  constitution  a 
provision  which  controls  or  destroys  a  discretion  which  may  be,  nay  must  be,  exer 
cised  by  the  Legislature  in  virtue  of  powers  confided  to  it  by  the  Constitution  of  tM 
United  States. 

The  fourth  section  of  the  first  article  of  the  Constitution  of  the  United  States 
declares,  "That  the  times,  places,  and  manner  of  holding  elections  for  Senators 
and  Representatives  shall  be  prescribed  in  each  State  by  the  Legislature  thereof." 

Herejm  express  provision  was  made  for  the  manner  of  choosing  Representatives 


choice.  What  is  the  proposition  on  the  table  ?  It  is  to  limit  this  discretion,  to 
leave  no  choice  to  the  Legislature  to  compel  Representatives  to  be  chosen  in  dis 
tricts  ;  in  other  words,  to  compel  them  to  be  chosen  in  a  specific  manner,  exclud 
ing  all  others.  Was  not  this  plainly  a  violation  of  the  Constitution  ?  Does  it  not 
affect  to  control  the  Legislature  in  the  exercise  of  its  legitimate  powers?  Does  it 
not  interfere  with  the  superintending  authority  of  Congress  ?  *  *  *  It  assumes 


tion.    In  my  hum  bio  judgment    *    *    *•"  it  is  a  direct  and  palpable  infringement 
of  the  constitutional  provisions  to  which  I  have  referred. 

There  is  nothing  new  in  the  suggestion  that  a  State  constitution 
may  in  some  of  its  provisions  be  unconstitutional  and  void  because 
in  conflict  with  the  higher  Constitution  of  the  United  States. 

But  it  is  not  necessary  to  say  that  there  is  any  conflict  between  the 
national  and  State  constitutions. 

By  a  well-known  rule  of  construction,  the  provisions  in  relation  to 
registration  at  most  must  be  deemed  as  intended  only  to  apply  to 
registration  for  elections  exclusively  under  State  authority.  (1  Kent 
460,  llth  ed.;  State  vs.  Milburn,  9  Gill,  105;  1  Blackst.  Com.,  261; 
Comyn's  Dig.,  tit.  Parl.  R.,  8;  King  vs.  Allen,  15  East.,  33;  6  Term 
R.,  194  ;  2  Mason,  314 ;  1  Watts,  54 ;  4  Cowen,  143  ;  11  Peters,  598.) 

It  seems  certain  then  that  the  Legislature  of  South  Carolina  has 
been  guilty  of  no  omission  of  duty  in  relation  to  registration. 

I  proceed  to  show — 

3.  That  the  Legislature  lias  complied  with  the  constitutional  provision 
requiring  registration. 

The  election  law  provides  as  to  each  voting-precinct  that — 

Each  clerk  of  the  poll  shall  keep  a  poll-list,  which  shall  contain  one  column 
headed  "  names  of  voters,"  and  the  name  of  each  elector  voting  shall  be  entered  by 
the  clerk  in  such  column. 

These  are  public  records,  which  in  each  county  belong  to  the  files 
of  the  county  commissioners  of  election.    This  'is  a  substantial  com-  ' 
pliance  with  the  constitutional  provision  requiring  a  "  registration 
of  all  electors." 

Besides  this,  the  revised  statutes  of  1873  require  a  complete  cen 
sus  to  be  taken  on  or  before  April  15,  1875,  and  every  tenth  year 
thereafter,  and  the  census  for  each  county  is  to  be  deposited  with 
the  county  auditor.  The  law,  or  rather  I  should  say  the  official  iu- 
structions  under  it,  require  the  census  returns  to  show  the  names  of 
all  male  persons  over  twenty-one  years  of  age,  and  these  are  voters. 
This  gives  a  complete  registration  of  all  voters,  and  is  a  substantial 
compliance  with  the  constitutional  provision  requiring  registration. 
This  law  has  been  faithfully  executed  and  furnishes  the  means  of  de 
tecting  illegal  voters. 

As  to  municipal  elections  there  is  a  registry  law.  The  revised  stat 
utes  of  1873,  chapter  11,  pages  39,  require  every  voter  to  be  "regis 
tered  in  the  ward  or  precinct  in  which  he  offers  to  vote." 

The  second  objection  to  the  "  Hayes  electoral  votes  "  is : 

2.  That  there  was  not  existing  in  the  State  of  South  Carolina  on  the  1st  of  Janu 
ary,  1876,  nor  at  any  time  thereafter,  up  to  and  including  the  10th  of  December, 
1876,  a  republican  form  of  government,  such  as  is  guaranteed  by  the  Coustitutiou 
to  every  State  in  the  Union. 


ELECTORAL  COMMISSION. 


187 


It  is  a  sufficient  answer  to  this  to  say  that  South  Carolina  was  duly 
represented  in  the  Senate  and  House  of  Representatives  of  the  United 
States  during  all  this  time,  and  this  is  conclusive  evidence  in  every 
particular  against  the  objection  which  has  been  made. 

In  the  case  of  Luther  vs.  Borden,  7  Howard  42,  Chief- Justice  Taney 
said : 

It  rests  with  Con  cress  to  decide  what  government  is  the  established  one  in  a  State. 
For,  as  the  United'  States  guarantee  to  each  State  a  republican  form  of  govern 
ment,  Congress  must  necessarily  decide  what  government  is  established  in  the 
State,  before  it  can  determine  whether  it  is  republican  or  not,  and  when  the  Senators 
and  Representatives  of  a  State  are  admittedinto  the  councils  of  the  Union,  the  authority 
of  the  government  under  which  they  are  appointed,  as  well  an  its  republican  charact(-r, 
is  recognized  by  the  proper  constitutional  authority,  and  Us  d'-cuion  isbindinfjon  every 
other  department  of  the  Government,  and  could  not  be  questioned  in  a  judicial  tribunal. 

And  see  Exparte  Conplaud,  26  Texas,  434;  Federalist  No.  21,  page 
112 ;  Calder  vs.  Bull,  3  Dallas,  386 ;  Wynehamer  vs.  The  People,  13 
New  York,  (3  Kernan,)  392. 

Mr.  Representative  HURD.  This  Commission  has  the  powers  of 
of  the  two  Houses  of  Congress. 

Mr.  Representative  LAWRENCE.  The  powers  of  Congress  are 
powers  to  be  exercised  by  law  and  with  the  approval  of  the  President, 
and  this  tribunal  cannot  annul  what  Congress  has  done  with  the  ap 
proval  of  the  President  in  the  form  of  law.  Greenleaf  says  : 

Courts  will  judicially  take  notice  of  the  political  constitution  or  frame  of  the 
government  pi  their  own  country,  ite  essential  political  agents  or  officers,  and  its 
essential  ordinary  and  regular  operations.  The  great  seal  of  the  State  and  the  seals 
of  its  judicial  tribunals  require  no  proof. 

The  constitution  of  Soiith  Carolina  of  1888  is  before  the  Commis 
sion.  It  is  entirely  republican  in  "form."  The  government  organ 
ized  under  it  is  republican  in  "form."  It  is  so  in  fact.  But  the  Con 
stitution  of  the  Uuited  States  does  not  undertake  to  guarantee  at  all 
times  a  State  government  strictly  republican  in  its  administration 
or  in  fact.  Its  language  is:  "The  United  States  shall  guarantee  to 
every  State  a  republican  form  of  government." 

The  guaranty  of  a  republican  form  of  government  is  to  be  executed 
by  the  United  States  as  an  independent  sovereign  act,  and  not  collat 
erally  or  incidentally  when  the  Houses  are  engaged  in  counting  the 
electoral  vote,  and  therefore  the  consideration  of  the  question  is  not 
within  the  jurisdiction  of  this  Commission. 

The  admission  or  restoration  of  the  State  of  South  Carolina  into  the 
Union  under  the  so-called  "reconstruction  acts"  was  the  act  of  the 
United  States,  being  the  act  of  the  two  Houses  of  Congress  with  the 
approval  of  the  President,  and  that  act  binds  all,  the  two  Houses  of 
Congress  as  well  as  others,  and  therefore  binds  this  Commission. 
That  act  was  a  recognition  of  the  government  of  South  Carolina  as 
republican  in  form  and  that  act  remains  in  force  to  the  present  time. 

The  third  objection  is  : 

That  the  Federal  Government  prior  to  and  during  the  election  on  the  7th  day  of 
November,  1876,  without  authority  of  law,  stationed  in  various  parts  of  the  said 
State  of  South  Carolina  at  or  near  the  polling  places  detachments  of  the  Army  of 
the  United  States,  by  whose  presence  the  full  exercise  of  the  right  of  suffrage  was 
prevented  and  by  reason  whereof  no  legal  or  free  election  was  or  could  be  had. 

It  is  a  sufficient  answer  to  this  to  say  there  is  no  proof  to  support  it. 

Still  more,  it  is  not  competent  for  this  tribunal  to  hear  evidence  in 
support  of  it  or  to  make  the  inquiry.  This  was  decided  in  principle 
by  the  determination  of  this  Commission  as  to  the  Florida  electors,  as 
to  whom  it  was  held — 

That  it  is  not  competent  under  the  Constitution  and  the  law,  as  it  existed  at  the 
date  of  the  passage  of  said  act,  to  go  into  evidence  a'.iunde  on  the  papers  opened 
by  the  President^of  the  Senate  in  the  presence  of  the  two  Houses  to  prove  that 
other  persons  than  those  regularly  certified  to  by  the  governor  of  the  State  of 
Florida,  in  and  according  to  the  determination  and  declaration  of  their  appoint 
ment  by  the  board  of  State  canvassers  of  said  State  prior  to  the  time  required  for 
the  performance  of  their  duties,  had  been  appointed  electors,  or  by  counter-proof 
to  show  that  they  had  not,  and  that  all  proceedings  of  the  courts  or  acts  of  the 
Legislature,  or  of  the  executive  of  Florida,  subsequent  to  the  casting  of  the  votes 
of  the  electors  on  the  prescribed  day  are  inadmissible  for  any  such  purpose. 

But  if  the  Commission  could  make  the  inquiry  the  Government  of 
the  United  States  had  authority  to  place  troops  in  South  Carolina, 
aud  when  so  placed  it  must  be  presumed  to  have  been  properly  done, 
on  sufficient  authority  and  for  sufficient  reasons. 

The  Constitution  and  laws  have  regarded  the  elective  franchise  of 
such  inestimable  value  as  to  deserve  in  those  extreme  cases  where 
necessity  requires  it  military  protection  from  the  National  Govern 
ment.  This  will  be  clear  from  a  brief  statement.  Congress,  as  already 
known,  has  power  to  make  all  proper  regulations  as  to  the  elections  of 
Representatives  in  Congress,  and  authorize  all  acts  "necessary  and 
proper  for  that  purpose." 

The  Constitution  also  declares  that  the  President  "  shall  take  care 
that  the  laws  be  faithfully  executed." 

This  he  can  only  do  by  the  defensive  means  placed  by  law  in  his 
hands. 

The  act  of  Congress  provides  that — 

No  *  *  *  officer  or  person  *  *  *  in  the  military  *  *  *  service  *  *  * 
shall  have  *  *  any  troops  *  *  *  at  the  place  where  any  »  *  *  election 
is  held  in  any  State,  unless  it  be  necessary  to  repel  the  armed  enemies  of  the  United 
States  or  to  keep  the  peace  at  the  polls.  (Revised  Statutes,  section  2002.  For  the 
statute  of  England  on  this  subject  see  Congressional  Kecord  of  January  17,  1877, 
Johnston's  speech.) 

From  this  an  unequivocal  inference  arises,  which  is  positive  law, 
that  the  President,  in  executing  the  Constitution  and  those  laws  which 
give  security  to  the  right  of  voting  for  Representatives  in  Congress, 
may  require  the  presence  of  troops  "  at  the  place  where  an  election 


is  held,"  in  two  cases,  (1)  when  "necessary  to  repeat  the  armed  ene 
mies  of  the  United  States ; "  and  (2)  "  to  keep  the  peace  at  the  polls." 

By  statute,  also,  the  President  is  authorized  to  employ  the  military 
power  for  the  protection  of  the  civil  rights  of  citizens.  (Revised 
Statutes,  section  1989.) 

Here,  then,  is  AUTHORITY,  under  the  Constitution  and  laws  of  the 
United  States,  for  the  use  of  troops  to  protect  citizens  in  exercising  the  right 
of  suffrage  as  stated. 

There  is  also  a  duty  to  use  military  power  in  still  other  cases. 

The  Constitution  provides  that — 

The  United  States  shall  guarantee  to  every  State  in  this  Union  a  republican  form 
of  government,  and  shall  protect  each  of  them  against  invasion  ;  and  on  applica 
tion  of  the  Legislature,  or  of  the  executive,  (when  the  Legislature  cannot  be  cou- 
vened,)  against  domestic  violence. 

Here  is  a  covenant  for  a  duty  which  cannot  in  good  faith  be  omitted. 

Whenever  there  is  "  domestic  violence,"  within  the  meaning  of  the 
Constitution,  and  the  proper  demand  is  made  by  the  governor  of  a 
State  on  the  President  for  military  aid,  it  cannot  be  refused.  The 
character  of  the  violence  which  justifies  military  interposition  is  well 
understood. 

Here,  then,  is  AUTHORITY  under  the  Constitution  for  the  employment  of 
troops  of  the  United  States  on  certain  contingencies  in  a  State. 

Now,  I  respectfully  submit,  it  must  be  presumed  that  the  officers 
of  the  Government  have  observed  these  laws  in  the  performance  of 
their  duties,  as  the  truth  undoubtedly  is,  and  this  is  a  sufficient  an 
swer  to  the  objection  taken. 

It  would  be  a  monstrous  proposition  to  say  that  a  State  should  be 
disfranchised  in  the  electoral  college  because  troops  were  in  the  State, 
when  their  presence  did  not  change  the  result  of  the  election.  It 
would  be  eqiially  monstrous  to  say  that  if  the  troops,  used  in  pur 
suance  of  law,  only  gave  protection  to  voters  and  aided  in  securing 
their  just  rights,  a  lawful  result  should  be  set  aside  because  the  Gov 
ernment  performed  its  duty. 

The  fourth  objection  is : 

That  at  the  several  polling  places  in  the  said  State  there  were  stationed  deputy 
marshals  of  the  United  States,  appointed  under  the  provisions  of  sections  2021  and 
2022  of  the  Revised  Statutes  of  the  United  States,  which  provisions  were  uncon 
stitutional  and  void.  That  the  said  deputy  marshals,  exceeding  over  one  thou 
sand  in  number,  by  their  unlawful  and  arbitrary  action,  in  obedience  to  the  im 
proper  and  illegal  instructions  received  by  them  from  the  Department  of  Justice, 
so  interfered  with  the  full  and  free  exercise  of  the  right  of  suffrage  by  the  duly 
qualified  voters  of  the  said  State  of  South  Carolina  that  a  fair  election  could  not 
be  and  was  not  held  in  the  said  State  of  South  Carolina  on  the  said  7th  day  of  No 
vember,  1876. 

It  is  a  sufficient  answer  to  this  that  it  is  unsupported  by  evidence, 
that  it  is  not  competent  to  receive  proof  in  support  of  it,  and  the 
legal  presumption  is  that  the  deputy  United  States  marshals  per 
formed  their  duties  properly. 

If  it  were  competent  to  make  the  inquiry,  the  evidence  would 
abundantly  prove  the  necessity  for  these  officers  and  that  they  did 
not  interfere  with  the  free  exercise  of  the  right  of  suffrage  by  any 
qualified  voter. 

But  as  no  such  evidence  is  competent,  no  question  of  the  constitu 
tionality  of  the  law  authorizing  deputy  marshals  arises,  and  if  it  could, 
the  power  of  Congress  is  ample  under  the  authority  "  to  enforce  by 
appropriate  legislation"  the  Constitution,  including  the  amendments 
thereto. 

Upon  this  subject  I  invite  especially  the  attention  of  the  Commis 
sion  to  a  report  or  views  which  I  will  submit  to  the  House  of  Repre 
sentatives,  as  a  part  of  House  Miscellaneous  Document  No.  31,  part 
1,  second  session  Forty-fourth  Congress,  being  evidence,  &c.,  relating 
to  the  South  Carolina^election,  and  which  in  a  day  or  two  I  will  sub 
mit  to  the  House  to  go  into  the  CONGRESSIONAL  RECORD. 

The  fifth  and  last  objection  is : 

That  there  was  not  from  the  1st  day  of  January,  1876,  up  to  and  including  the 
10th  day  of  December,  1876,  at  any  time,  a  State  government  in  the  State  of  South 
Carolina,  except  a  pretended  government  set  up  in  violation  of  law  and  of  the  Con 
stitution  of  the  United  States  by  Federal  authority  and  sustained  by  Federal 
troops. 

It  is  a  sufficient  answer  to  this  to  say  it  is  unsupported  by  evidence, 
it  is  utterly  unfounded  in  fact,  it  is  contradicted  by  the  truth  of  his 
tory,  and  is  overthrown  by  the  authority  of  Luther  vs.  Borden,  7 
Howard,  42. 

The  legal  validity  of  the  government  of  South  Carolina  during  the 
year  1876  is  a  well-authenticated  fact  in  history.  This  tribunal  as  a 
question  of  law  is  bound  to  know  and  recognize  the  fact  without 
proof,  and  it  has  never  been  doubted  or  questioned  until  now,  and 
the  "  truth  of  history  "  is  that  troops  of  the  United  States  were  used 
only  as  the  Constitution  and  laws  authorize,  to  suppress  "  domestic 
violence"  or  to  "keep  the  peace  at  the  polls." 

Here  then  I  close,  and  in  doing  so  I  indulge  the  hope  that  upon  the 
questions  submitted  to  this  Commission  there  may  be  a  decision  which 
will  command  the  unanimous  vote  of  all  its  members.  Let  it  be  such 
that  no  State  shall  ever  be  disfranchised  by  the  Houses  of  Congress 
or  practically  expelled  from  the  Union  of  our  fathers. 

Mr.  Commissioner  HUNTON.  Judge  Lawrence,  let  me  call  your 
attention  to  a  point  in  the  case  which  I  have  not  heard  discussed. 

Mr.  Representative  LAWRENCE.    Certainly. 

Mr.  Commissioner  HUNTON.  The  twelfth  article  of  the  amend 
ments  to  the  Constitution  provides  that : 

The  electors  shall  meet  in  their  respective  States  and  vote  by  ballot  for  Presi 
dent  and  Vice- President,  one  of  whom,  at  least,  shall  not  be  an  inhabitant  of  the 


188 


ELECTORAL  COMMISSION. 


same  State  with  themselves ;  they  shall  name  in  their  ballots  the  person  voted  for 
as  President,  and  in  distinct  ballots  the  person  voted  for  as  Vice-President. 

Now,  in  the  examination  of  this  Certificate  No.  1, 1  find  no  evidence 
that  this  provision  of  the  Constitution  has  been  complied  with  in 
voting  by  ballot. 

Mr.  Representative  LAWRENCE.  It  will  undoubtedly  be  pre 
sumed,  in  the  absence  of  an  allegation  to  the  contrary,  that  the  offi 
cers  have  performed  their  duty.  I  think  that  familiar  legal  principle, 
known  to  every  lawyer,  is  a  complete  answer  to  the  point  suggested 
by  my  friend  from  Virginia.  There  is  no  law  which  requires  that  the 
certificate  shall  state  that  the  electors  voted  by  ballot ;  but  if  as  a 
matter  of  fact  the  votes  were  otherwise,  viva  voce,  the  provision  direct 
ing  that  the  electors  shall  vote  by  ballot,  at  most,  is  only  directory, 
and  a  failure  to  observe  that  provision  of  the  Constitution  would  not 
affect  the  validity  of  the  votes. 

Mr.  Commissioner  HUNTON.  Has  there  not  been  a  case  before  the 
two  Houses  of  Congress  of  that  character  ? 

Mr.  Representative  LAWRENCE.    Not  to  my  knowledge. 

Mr.  Commissioner  HUNTON.  Objections  on  account  of  the  fact 
not  appearing  that  the  vote  was  by  ballot  ?  I  am  not  distinct  in  my 
recollection,  but  still  my  recollection  is  that  there  has  been  a  case  of 
that  sort  before  the  two  Houses  of  Congress  in  counting  the  electoral 
votes. 

Mr.  Representative  LAWRENCE.  I  have  no  recollection  of  any 
such  case  as  that,  but  there  may  be. 

Mr.  Commissioner  HUNTON.  I  only  desired  to  call  your  attention 
to  it  so  that  it  might  not  escape  notice  in  the  discussion. 

Mr.  Representative  LAWRENCE.  Then  the  two  answers  which  I 
have  made  seem  to  me  entirely  to  meet  the  case  :  First,  that  in  the 
absence  of  any  allegation  in  the  record  to  show  that  the  vote  was  not 
by  ballot,  it  must  be  presumed  that  officers  have  done  their  duty  and 
that  the  votes  were  by  ballot.  Second,  that  if  in  fact  the  electors 
failed  to  observe  the  direction  of  the  Constitution  in  that  respect, 
the  provision  itself  is  merely  directory,  and  a  failure  to  comply  with 
it  cannot  invalidate  the  vote. 

Besides  that,  as  I  am  reminded  by  my  friend  with  whom  I  was 
associated  as  a  member  of  the  committee  of  the  House  of  Represent 
atives  which  investigated  the  South  Carolina  election,  [Mr.  Lapham,] 
110  such  objection  is  made  by  the  objectors  to  the  vote  of  that  State. 

The  PRESIDENT.  Do  I  understand  you  to  have  closed  on  the  part 
of  the  objectors  ? 

Mr.  Representative  LAWRENCE.    Yes,  sir. 

The  PRESIDENT.    There  are  no  other  objectors  to  be  heard  ? 

Mr.  Representative  LAWRENCE.  No  other.  Senator  Christiancy 
waives  the  right,  as  I  understand,  to  argue  the  objections. 

The  PRESIDENT.  Before  calling  upon  the  counsel  who  support 
the  objections  to  Certificate  No.  1, 1  inquire  of  the  counsel  on  the  other 
side  if  they  object  to  the  offers  of  proof  ? 

Mr.  MATTHEWS.  I  was  not  in  at  the  time  the  offer  was  made,  but 
of  course  we  object  to  any  proof  being  offered. 

The  PRESIDENT.  Counsel  in  favor  of  the  objections  to  Certificate 
No.  1  will  now  be  heard.  One  of  the  counsel  will  open  and  the  other 
will  have  the  close. 

Mr.  BLAIR.    Mr.  President 

The  PRESIDENT.  This  question  is  upon  the  admissibility  of  the 
evidence  and  its  effect. 

Mr.  BLAIR.  Mr.  President  and  gentlemen  of  the  Commission, 
counsel  for  the  objectors  to  certificate  No.  1  propose  to  prove,  in  addi 
tion  to  what  has  already  been  offered,  that  owing  to  the  violence  and 
intimidation  existing  in  South  Carolina*  on  the  election  day  of  No 
vember,  1876,  and  then  practiced  toward  voters,  and  owing  to  the 
presence  of  troops  of  the  United  States  overawing  voters,  there  was 
no  free  election  on  the  part  of  the  people  for  electors  of  President  and 
Vice-Presideut.  Evidence  will  also  be  given  to  support  specifically 
the  third  and  fourth  objections  to  certificate  No.  1,  by  which  a  free 
and  fair  election  was  prevented. 

The  first  ground  upon  which  I  shall  lay  any  stress  in  objecting  to 
the  counting  of  certificate  No.  1  is  that  there  was  no  registration  of 
voters  in  the  State  of  South  Carolina  as  required  by  the  constitution 
of  that  State.  The  constitution  of  South  Carolina  is  imperative: 
"it  shall  be  the  duty  of  the  General  Assembly  to  provide  from  time  to 
time  for  the  registration  of  all  electors." 

It  is  admitted  on  the  part  of  the  supporters  of  the  Hayes  electors, 
that  there  was  in  fact  no  such  registration  as  the  constitution  re 
quires.  All  that  is  contended  on  their  part  is,  that  there  was  a  poll- 
list  made  at  the  elections  by  one  of  the  clerks,  and  that  there  was  a 
census  taken  which  enumerated  the  male  inhabitants  of  the  different 
counties  in  the  State  without  naming  them.  That  was  done  in  com 
pliance  with  the  constitution. 

I  am  not  prepared  to  show  by  authorities  what  a  registration  is  or 
ought  to  be.  That  cannot  be  necessary.  I  shall  take  it  for  granted  that 
every  member  of  this  tribunal  knows  that  neither  a  poll-list  taken  by 
the  clerk  at  the  time  of  voting  nor  a  census  is  a  registration. 

I  dismiss,  therefore,  at  once  and  without  comment,  the  attempt  to 
show  a  compliance  with  the  constitution  of  the  State  of  South  Caro 
lina,  and  proceed  to  notice  the  argument  upon  which  my  learned 
friend  [Mr.  Lawrence]  evidently  depends  to  sustain  this  certificate ; 
which  is,  that  as  the  Constitution  of  the  United  States  provides  that 
each  State  shall  appoint  electors  in  such  manner  as  the  Legislature 
thereof  shall  direct,  any  provision  interfering  with  the  discretion  of 


that  body  as  to  the  manner  of  appointment  is  a  violation  of  the  Con 
stitution  of  the  United  States.  The  case  of  certificate  No.  1  rests  only 
upon  that  proposition.  I  do  not  perceive  the  application  of  Mr.  Jus 
tice  Story's  opinion  on  the  proposed  constitutional  provisions  respect 
ing  congressional  districts  in  Massachusetts. 

The  requirement  of  a  registration  of  voters  does  not  interfere  in 
any  respect  with  the  provision  in  the  Constitution  of  the  United 
States  authorizing  the  Legislature  to  direct  the  manner  of  appoint 
ing  the  electors.  There  can  be  no  conflict  in  fact  between  a  require 
ment  and  the  full  exercise  of  the  power  by  the  Legislature.  For  the 
purpose  of  appointing  an  elector  the  Legislature  of  the  State  is  an 
agency  of  the  United  States ;  but  it  is  an  agency  created  by  the 
State,  and  must  exercise  its  agency  in  accordance  with  the  power 
which  creates  it.  And,  therefore,  in  the  exercise  of  the  authority 
conferred  by  the  Constitution,  it  will  not  be  assumed  that  the  Con 
stitution  of  the  United  States  empowers  the  Legislature  to  disregard 
the  State  constitution,  and  especially  in  a  matter  which  is  essential 
to  the  well-being  of  society. 

The  provision  in  question  is  indispensable  to  secure  fair  elections. 
The  secret-ballot  system  without  registration  is  simply  an  unlimited 
power  of  repeating,  and  thus  invited  and  facilitated  by  the  laws  of 
South  Carolina,  whereby  multitudes  of  small  electoral  precincts  have 
been  created  in  order  that  the  negro  voters,  many  of  whom  are  not 
easily  identified,  may  repeat  their  votes  indefinitely.  How  indispen 
sable  and  necessary  to  a  due  ordering  of  society  in  such  a  condition 
is  it  that  there  should  be  a  registration  of  voters  to  prevent  repeat 
ing? 

This  tribunal  will  take  notice  of  the  constitution  and  laws  of  South 
Carolina,  and  it  therefore  is  informed  of  the  failure  to  execute  a  pro 
vision  which  the  constitution  itself  by  the  mandatory  terms  in  which  it 
imposes  the  duty  of  registration  declares  to  be  indispensable  to  a  fair 
election.  Will  this  tribunal,  when  the  State  constitution  itself  thus 
pronounces  the  election  fraudulent,  permit  the  irresponsible  persons 
held  in  power  in  South  Carolina  only  by  the  aid  of  United  States  sol 
diers  to  decide  a  great  presidential  contest  ? 

Mr.  Commissioner  GARFIELD.  I  wish  to  inquire  if  the  failure  on 
the  part  of  the  Legislature  to  pass  a  registry  law  in  obedience  to  the 
constitution  has  rendered  invalid  the  appointment  of  electors  ?  Ha« 
it  also  rendered  invalid  the  appointment  of  all  their  State  officers 
and  their  State  government  during  the  last  eight  years,  during 
which  that  neglect  has  lasted  ? 

Mr.  BLAIR.  If  no  question  has  been  made  on  the  subject  in  the 
State,  the  maxim  communis  error  fa  tit  jus  might  apply  or  acquiescence 
on  the  part  of  the  people  of  the  State  would  make  a  de  facto,  and  as 
a  de  facto  a  legal,  government ;  but  with  respect  to  the  electors  the 
question  is  one  upon  which  the  whole  country  is  concerned,  and  has 
not  been  waived  or  permitted  to  pass  sub  silentio,  but  is  now  here  pre 
sented  for  decision,  as  one  arising  upon  the  law.  And  we  insist  that 
the  law  makes  the  election  void  and  that  the  vote  of  South  Carolina 
ought  not  to  be  counted.  It  is  not  necessary  to  prove  that  the  elec 
tion  was  fraudulent  in  fact.  The  law  itself  declares  it  to  be  so.  And 
this  tribunal  as  a  political  body  knows  as  a  fact  in  the  history  of  the 
times  that  the  requirement  of  the  constitution  of  South  Carolina 
was  disregarded  to  enable  the  men  in  charge  of  its  affairs  to  perpetu 
ate  their  power  and  dispose  of  its  electoral  vote  at  their  pleasure. 
You  cannot  therefore  shut  your  eyes  to  the  fact  that  here  is  a  pal 
pable,  gross,  persistent  violation  of  law,  the  only  effect  of  which  could 
be  to  facilitate  fraud. 

Every  honest  and  patriotic  citizen  must  feel  indignant  at  the  con 
dition  to  which  the  criminals  who  have  by  military  force  held  South 
Carolina  in  thralldom  have  reduced  that  State  and  be  inclined  to  re 
solve  any  doubt  against  them  and  in  favor  of  the  people  who  hold  all 
the  property,  possess  all  the  intelligence,  and  represent  the  civiliza 
tion  of  the  State. 

And  will  this  tribunal,  instead  of  eagerly  availing  itself  of  its  vio 
lations  of  law,  strike  down  and  crush  out  the  irresponsible  power  foisted 
on  those  people,  industriously  hunt  for  quibbles  of  law  and  study  how 
to  lot  fraud  triumph  ? 

I  pass  now  to  the  objection  founded  upon  the  intrusion  of  the  mili 
tary  power  of  the  United  States  into  the  State  for  the  purpose  of 
controlling  the  election  that  is  claimed,  and  I  think  with  just  reason, 
to  be  an  all-sufficient  ground  to  invalidate  the  election;  and  that 
also  is  a  matter  which  does  not  depend  upon  proof.  It  is  shown 
by  the  proclamation  of  the  President,  which  is  a  matter  of  which  all 
public  tribunals  can  take  notice. 

This  transaction  was  made  known  to  the  public  by  the  proclama 
tions  and  published  orders  of  the  President,  to  which  the  attention 
of  this  tribunal  has  been  called  by  the  honorable  gentleman  who 
opened  the  case,  the  obvious  purpose  of  which  was  to  control  the 
election  in  the  interest  of  the  party  which  here  claims  the  benefit  of 
this  illegal  and  unwarranted  interference. 

The  argument  of  my  learned  friend  [Mr.  Lawrence]  is,  that  inas 
much  as  these  proceedings  were  by  the  authority  of  the  President  of 
the  United  States  we  are  concluded.  That  his  judgment  is  final.  Is 
that  so?  Is  that  conclusive  upon  the  Congress  of  the  United  States 
that  you  here  represent  ?  Is  the  judgment  of  the  President  of  the 
United  States,  acting,  as  he  publicly  declares,  as  the  representative 
of  a  party,  decisive  against  the  opposing  party  ?  That  seems  to  me 
to  beg  the  question.  We  charge  that  the  party  organization  that 
possessed  itself  of  power  by  the  war  has  made  use  of  the  power  thus 


ELECTORAL  COMMISSION. 


189 


obtained  to  perpetuate  it  against  the  will  of  the  people  ;  and  when, 
therefore,  you  are  sitting  here  in  the  stead  and  place  of  the  grand 
inquest  of  the  nation,  must  you  shut  your  eyes  to  the  true  nature  of 
the  transactions  and  allow  an  organization  to  perpetuate  its  power 
in  defiance  of  the  will  of  the  people  because  it  is  done  by  color  of 
offices? 

This  policy  was  initiated  by  what  are  known  as  the  reconstruction 
measures  adopted  on  the  close  of  the  war.  Mr.  Stevens,  who  pre 
sented  them,  admitted  in  his  place  that  they  were  outside  of  the  Con 
stitution.  In  virtue  of  these  confessedly  unconstitutional  measures 
electors  were  openly  made  by  the  military  power,  and  the  Halls  of 
Congress  were  filled  with  camp-followers  from  the  transformed  States. 
When  these  measures  produced  their  natural  effect  of  endangering  the 
hold  of  the  organization  upon  the  great  Northern  States  it  became 
necessary  to  fortify  themselves  then  by  another  amendment  of  the 
Constitution  spreading  negro  suffrage  all  over  the  United  States ;  and 
this  was  done  in  known  defiance  of  the  public  will,  and  after  they 
had  expressly  disclaimed  by  resolutions  in  a  national  convention  that 
they  entertained  any  such  purpose.  But  notwithstanding  the  vast 
forces  thus  added  their  strength  wanes.  The  tide  of  intelligent  opinion 
grows  steadily  against  them.  Notwithstanding  their  frantic  appeals 
to  sectional  hate  in  the  North  they  feel  that  they  are  losing  ground 
there. 

Notwithstanding  the  indignation  that  the  previous  military  seiz 
ures  had  aroused,  they  could  not  save  themselves  by  again  employing 
the  military  power  toehold  the  votes  of  the  States  when  they  still  held 
the  machinery  to  call  for  its  interposition.  This  is  the  transaction, 
as  seen  of  all  men.  It  is  impossible  for  any  observant  man  to  fail  to 
see  it  in  this  light.  And  I  say  you  will  be  derelict  to  your  duty  if 
you  sanction  it  and  allow  its  creatures  to  triumph. 

What  I  have  stated  is  proved  by  proclamations  and  orders,  all  of  a 
public  nature,  of  which  you  can  as  representing  Congress  take  notice 
and  by  considering  which  the  vote  of  South  Carolina  may  be  rejected 
without  reversing  any  decision  heretofore  made.  I  do  not  combat 
what  has  been  decided.  I  would  not  waste  the  time  of  this  tribunal 
or  my  own  in  attempting  to  get  it  to  reverse  its  decision. 

But  Congress  has  itself  established  a  precedent  by  taking  notice  of 
a  similar  condition  of  things  in  these  States,  and  you  as  the  repre 
sentatives  of  Congress  ought  to  follow  the  precedents  it  has  estab 
lished.  Upon  just  such  considerations  as  now  I  am  addressing  to 
you,  Congress  excluded  the  whole  southern  section  of  country  from 
participating  in  the  presidential  election. 

If  Congress  has  refused  to  allow  the  votes  of  States  to  be  counted 
because  they  were  incapacitated  from  sharing  in  the  privileges  of  the 
Government,  is  it  not  equally  within  the  power  of  this  Commission 
when  it  is  a  matter  of  general  notoriety  that  a  like  condition  exists, 
and  especially  when  that  condition  is  produced  by  the  action  of  a 
party  in  power  and  exercising  for  the  time  being,  and  exercising 
wrongly,  the  powers  of  the  Government.  It  is  enough  that  it  appears 
that  such  a  condition  exists  as  to  prevent  any  legitimate  exercise  of 
the  franchise,  to  make  the  analogy  complete. 

The  general  principle  is  familiar  that  where  there  is  disorder  in  a 
precinct,  where  the  police  have  to  interfere,  where  the  people  are 
driven  from  the  polls,  where  there  is  such  oppression  as  that  the  polls 
do  not  represent  fairly  the  voice  of  the  people,  they  are  excluded. 

But  here  is  a  grand  national  case  in  which  you  cannot  fail  to  take 
notice  of  the  proclamation  of  the  President  and  the  governor  declar 
ing  the  State  in  a  stalte  of  insurrection,  of  the  march  of  troops  there, 
of  the  action  of  the  parties  who  xised  the  troops  and  who  called 
them  there  to  put  down  insurrection.  It  was  because  of  the  insur 
rectionary  character  that  existed  prior  to  1865  that  the  Southern 
States  were  not  allowed  to  vote,  and  here  is  a  proclamation  in  all  re 
spects  corresponding  with  the  proclamation  declaring  an  insurrection 
to  exist  there.  What  is  the  difference  in  manner  or  in  effect  ?  You 
would  not  allow  the  rebels  to  vote  because  they  put  the  States  under 
military  duress  by  force  of  arms ;  and  now  will  you  allow  these  people 
to  vote  when  they  are  under  military  duress  compelled  to  vote  on  the 
other  side  ? 

Mr.  Commissioner  EDMUNDS.  That  was  done  by  an  act  of  Con 
gress,  was  it  not  ? 

Mr.  BLAIR.    The  exclusion  ? 

Mr.  Commissioner  EDMUNDS.  In  1865,  or  whatever  the  time  was, 
when  the  act  passed  over  the  veto  of  President  Johnson. 

Mr.  BLAIR.  If  I  recollect  aright  about  the  rule  on  that  subject, 
a  joint  resolution  was  passed  which  was  presented  to  Mr.  Lincoln 
for  his  approval  and  he  said  he  had  nothing  to  do  with  it. 

Mr.  Commissioner  EDMUNDS.    But  he  signed  it. 

Mr.  BLAIR.  He  signed  it,  but  disclaimed  having  any  authority  in 
the  premises  and  insisting  that  it  belonged  to  Congress,  that  is,  to  the 
t  wo  Houses,  exclusively. 

Mr.  Commissioner  EDMUNDS.  Was  there  not  a  later  act  in  Presi 
dent  Johnson's  time  which  he  vetoed,  and  which  Congress  passed  over 
his  veto  ? 

Mr.  BLAIR.  There  was  a  series  of  acts  passed  over  Mr.  Johnson's 
veto. 

Mr.  Commissioner  EDMUNDS.  I  mean  on  that  precise  point  of  ex 
cluding  States  from  electoral  representation  ? 

Mr.  BLAIR.  There  may  have  been ;  but  the  act  which  was  ap 
proved  by  Mr.  Lincoln  and  with  his  assenting  to  the  power  of  Con 


gress  to  throw  out  votes  as  they  pleased,  excluded  votes.  Mr.  Lincoln 
asserted,  and  without  contradiction  from  anybody  as  I  remember, 
that  this  was  a  matter  entirely  with  Congress ;  and  the  subsequent 
passage  of  a  law  I  do  not  think  adds  anything  to  the  power  of  Con 
gress  on  the  subject.  That  is  the  view  I  take  of  it,  and  I  submit  it 
with  great  deference  to  your  better  judgment. 

Mr.  Commissioner  EDMUNDS.  The  point  was,  Mr.  Blair,  whether 
there  was  any  distinction  between  this  exercise  of  political  power 
according  tfl  the  position  the  State  is  in,  whether  exercised  by  Con 
gress  in  the  constitutional  way,  or  whether  it  is  also  competent  to 
exercise  it  in  the  act  of  counting  in  the  presence  of  the  two  Houses. 
That  is  the  point  I  should  like  to  hear  you  upon.  You  ask  us  to  ex 
ercise  now  this  same  power  and  upon  the  same  ground  that  hitherto 
has  been  exercised  by  acts  of  legislative  will  in  the  form  of  law. 

Mr.  BLAIR.  Yes,  sir;  I  suppose  myself  that  the  whole  power  of  Con 
gress,  the  act  of  1792  itself  as  well  as  all  acts  subsequent  to  that,  were 
acts  passed  in  furtherance  of  the  power  of  Congress  to  count.  I  sup 
pose  so.  I  do  not  know  any  other  clause  in  the  Constitution  that 
gives  them  any  power  over  the  subject.  They  have  the  power  to 
count ;  and  in  pursuance  of  that  power  and  to  facilitate  it,  they  re 
quire  that  the  executive  officers  of  the  several  States  should  send  them 
certificates  as  evidence  by  which  they  were  prima  fade,  as  I  always 
understood  until  the  late  decisions  here,  to  determine  who  were  the 
proper  names  to  count  in  the  electoral  college.  That  was  an  exercise 
of  power  by  Congress.  There  is  no  other  clause  in  the  Constitution 
which  gives  it  to  them  that  my  attention  has  ever  been  called  to. 

But  that  did  not  exhaust  the  power  of  Congress,  because  Congress 
in  the  exercise  of  the  same  power  has  subsequently  thrown  out  these 
votes,  as  Mr.  Lincoln  said  rightly  as  I  always  understood,  and  as  the 
joint  resolution  of  1865  and  as  all  the  resolutions  and  acts  of  Congress 
taking  place  since  have  been,  as  Louisiana  has  been  excluded  up  to 
this  time ;  for  her  vote  has  never  been  counted  since  the  war  until 
the  other  day.  All  this  was  simply  by  virtue  of  the  power  of  the  two 
Houses,  done  without  any  law,  but  looking  at  the  condition  of  the 
State,  purely  and  simply,  Congress  excluded  her  as  being  not  in  that 
condition  which  made  it  proper  to  allow  her  to  participate  in  the 
privileges  of  a  presidential  election.  That  was  done  by  the  same 
power,  the  whole  of  which  is  vested  in  this  Commission,  the  power  to 
look  into  the  state  of  affairs  there  to  see  for  yourselves  that  they  are 
not  exercising  a  perfectly  free  will. 

A  Senator  of  the  very  highest  authority  reported  in  regard  to 
Mississippi  last  year  that  it  was  competent  for  Congress  to  decide 
whether  the  vote  of  that  State  should  be  excluded,  because  of  the  ex 
ercise  of  illegal  and  improper  power  there  in  the  control  of  elec 
tions.  It  was  deemed  perfectly  competent  by  gentlemen  of  the  party 
with  whom  I  am  not  now  acting,  and  seemed  to  be  a  general  expres 
sion  of  feeling  upon  that  subject,  that  it  was  perfectly  competent  to 
exclude  States  where  there  was  no  interference  of  the  military,  no 
call  by  the  Legislature  or  governor,  but  in  the  discretion  of  the  two 
Houses  to  exclude  States  from  their  own  knowledge  as  legislative 
bodies  that  the  condition  of  affairs  there  was  not  such  as  to  authorize 
the  votes  to  be  counted. 

But  in  this  case  evidence  is  such  as  must  be  taken  notice  of  upon 
the  very  strictest  rules.  The  proclamation  declaring  an  insurrection 
to  exist  in  South  Carolina  puts  the  case  strictly  in  the  category  of 
the  States  which  were  excluded  by  Congress. 

My  learned  friend  [Mr.  Lawrence]  referred  to  the  deputy  marshals 
and  the  troops  that  were  sent  there  and  the  Attorney-General's  cir 
cular.  That  strongly  enforces  our  argument.  Can  it  possibly  be  a 
free  State  authorized  to  vote  and  decide  a  presidential  election  when 
the  State  is  covered  with  deputy  marshals  and  troops  and  men  have 
to  pass  through  files  of  armed  men  to  the  polls.  Now  I  advance  that 
we  shall  be  able  to  show  you  they  had  a  deputy  marshal  for  every 
ten  negroes,  with  labels  on  their  shoulders,  and  marched  their  squads 
of  ten  up  before  the  soldiery  and  swore  them  to  vote  the  whole  re 
publican  ticket,  then  marched  them  to  the  polls  and  stood  by  them 
till  they  voted.  The  instructions  to  these  deputy  marshals  were  in 
the  public  press. 

When  such  means  are  resorted  to  to  carry  a  State  and  it  is  carried 
by  less  than  a  thousand  majority,  can  you  justify  yourselves  in 
counting  that  vote  I  Is  there  any  essential  difference  in  such  a  case 
than  if  the  rebels  in  South  Carolina  had  carried  the  State  by  1,100 
votes,  and  had  asked  to  cast  them  against  Mr.  Lincoln  in  1864  ? 
Could  there  possibly,  have  been  an  election  in  any  proper  sense  of 
the  word,  with  all  this  paraphernalia  of  United  States  troops,  United 
States  deputy  marshals,  and  armed  negro  militia,  a  proclamation 
of  insurrection,  and  disorder  existing  everywhere  ? 

You  can  legally  take  notice  of  all  this,  and  if  you  will  let  us  we 
will  show  it  all  up  in  limine.  But  that  is  not  required.  You  cannot 
refuse  to  see  what  Congress  has  seen  in  similar  cases,  and  has  acted 
upon.  You  cannot  shut  your  eyes  to  these  public  documents,  which  I 
need  not  read  because  they  are  part  of  the  statute  book,  and  every 
judicial  functionary  and  every  legislative  functionary  is  obliged  to 
take  notice  of  them. 

I  omitted  in  the  consideration  of  the  first  point  to  call  the  atten-  , 
tion  of  the  tribunal  to  an  authority  on  the  subject  on  the  registration 
question.     You  will  find  in  the  ninth  section  of  American  "  Law  of 
Elections,"  by  McCrary,  a  citation  which  he  adopts  as  the  law. 

I  have  the  original  case  here,  but  will  not  read  it,  contenting  my- 


190 


ELECTORAL  COMMISSION, 


self  with  calling  the  attention  of  the  tribunal  to  the  ninth  section  of 
the  hook : 

It  being  conceded  that  the  power  to  enact  a  registry  law  is  within  the  power  to 
reflate  the  exercise  of  the  elective  franchise  and  preserve  the  purity  of  the  bal 
lot  it  follows  that  an  election  held  in  disregard  of  the  provisions  of  a  registry  law 
must  be  held  void.  In  Ensworth  vs.  Albiu  et  al.,  44  Missouri,  347,  an  election  was 
set  aside  upon  the  ground  that  there  was  no  registration  whatever,  although  the 
statute  required  registration  as  an  indispensable  prerequisite  to  an  election.  It 
has  been  suggested  that  this  doctrine  puts  it  in  the  power  of  the  board  of  registra 
tion  to  defeat  an  election  by  failing  to  meet  and  refusing  altogether  to  discharge 
their  official  duties.  But  it  is  hardly  safe  to  attempt  to  tost  the  validity  of  a  stat 
ute  by  presupposing  a  ease  so  extreme  and  so  improbable  as  the  refusal  of  a  sworn 
ollicer  of  the  law  to  act. 

Contrary  to  the  author's  supposition  of  what  was  possible,  we  have 
here  the  extreme  case.  The  case  referred  in  the  text  occurred  in 
Missouri,  where  the  officers  of  the  country  which  was  there  in  ques 
tion  did  refuse  to  make  the  registry  required  by  the  statute,  which 
was  not  a  particle  more  mandatory  than  the  constitution  of  South 
Carolina. 

Mr.  Commissioner  EDMUNDS.    You  cite  that,  then,  as  authority 
to  prove  that  this  election  was  void  because  the  Legislature  had 
made  no  law  providing  for  any  registration. 
Mr.  BLAIR.    Exactly. 

Mr.  Commissioner  EDMUNDS.  The  constitution  making  a  gen 
eral  requirement  that  the  Legislature  should  enact  such  a  law  ¥ 

Mr.  BLAIR.  Making  the  positive  requirement  just  as  the  statute 
law  of  Missouri. 

Mr.  Commissioner  EDMUNDS.  On  the  same  principle  would  yon 
hold  on  another  section  of  the  constitution  of  South  Carolina,  which 
says  that  the  Legislature  shall  make  laws  for  preserving  the  purity 
of  elections,  that,  if  the  Legislature  had  not  made  any  law  punish 
ing  false  voting,  therefore  the  election  would  be  void  ? 

Mr.  BLAIR.  No,  sir.  I  think  there  is  a  very  broad  distinction  be 
tween  the  two  cases. 

Mr.  Commissioner  EDMUNDS.    What  is  the  distinction? 
Mr.  BLAIR.    The  purity  of  election  is  nomen  generalissimum. 
Mr.  Commissioner  EDMUNDS.    A  very  important  thing,  is  it  not  ? 
Mr.  BLAIR.     It  is  very  important,  to  be  sure  ;  but  it  is  not  mand 
atory.    It  is  general.     But  here  is  a  specific  thing  that  is  required. 
There  is  manifestly  a  very  broad  distinction  between  an  act,  even  if 
it  be  mandatory  in  its  nature,  which  such  acts  generally  are  not,  that 
legislation  shall  be  taken  for  the  preservation  of  the  purity  of  elec 
tions,  and  a  mandatory  requirement  in  the  constitution  requiring 
specifically  a  particular  thing  to  be  done.     The  distinction  is  recog 
nized  all  through  the  books.    For  example,  it  has  been  held  that  where 
elections  were  required  to  be  held  by  ballot  and  were  not  so  held, 
that  was  a  violation  of  law.    Here  is  an  election  required  to  be  held 
by  registry.    The  registry  is  a  preliminary  indispensable  to  the  elec 
tion  by  the  express  order  of  the  constitution  and  its  manifest  intent. 
Mr.  Commissioner  ABBOTT.    Do  yon  find  any  case  where  a  refusal 
to  carry  out  the  mandate  of  the  constitution  requiring  registry  has 
ever  been  sufficient  to  set  aside  the  election  ?    Are  not  the  cases  all 
confined  to  the  case  of  a  statute  being  made  in  reference  to  a  particu 
lar  election  and  that  not  being  complied  with  ? 

Mr.  BLAIR.  There  is  not  a  case  to  be  found  in  the  books  where 
the  constitutional  requirement  of  a  registry  has  ever  been  defied  ex 
cept  in  the  case  of  South  Carolina. 

I  thank  the  Commission  for  allowing  me  to  trespass  upon  them 
so  long. 

The  PRESIDENT.  We  will  now  hear  from  the  counsel  on  the  other 
side. 

Mr.  SHELLABARGER.  Counsel  on  the  other  side  have  decided 
that  they  will  not  ask  the  Commission  to  be  heard.  In  view  of  the 
value  of  the  time  that  is  now  left  to  complete  this  count  we  deem 
that  it  is  our  duty  to  omit  to  consume  any  part  of  that  time  by  dis 
cussion,  and  therefore  on  our  part  we  submit  the  case  without  argu 
ment. 

The  PRESIDENT.  Counsel  for  objectors  to  certificate  No.  2  sub 
mit  the  case.  It  now  belongs  to  counsel  on  the  other  side. 

Mr.  Commissioner  BAYARD.  The  offers  of  proof  are  not  printed. 
The  Commission  might  desire  to  consider  them.  I  suggest  that  an 
order  for  their  printing  be  made.  I  understand  they  can  be  furnished 
us  in  the  course  of  an  hour  or  so. 

The  PRESIDENT.   Do  you  submit  the  motion  that  they  be  printed  ? 
Mr.  Commissioner  BAYARD.    I  submit  the  motion  that  the  offers 
of  proof  submitted  by  Mr.  Cochrane  be  printed. 
The  motion  was  agreed  to. 

Mr.  BLACK.  Mr.  President  and  gentleman,  I  had  uot  and  have  not 
now  any  intention  to  argue  this  case.  I  never  heard  the  objections 
nor  knew  what  they  were  until  they  were  read  in  your  presence  this 
morning.  It  would  be  presumption  in  me  to  attempt  an  argument 
before  a  tribunal  like  this  on  such  a  case  as  this,  having  had  no  pre 
vious  opportunity  to  consider  it  which  might  put  me  in  a  condition 
better  than  the  judges  themselves.  You  have  heard  as  much  of  this 
case  and  know  as  much  about  it  as  I  do. 

My  idea  of  the  duty  which  a  counselor  owes  to  a  court  or  to  any 
other  tribunal,  judicial  or  quasi-judicial,  is  that  he  should  never  open 
his  mouth  except  for  the  purpose  of  assisting  the  judges  in  coming 
to  a  correct  conclusion ;  and  if  he  is  not  in  a  situation  to  do  that,  ho 
ought  to  keep  silence. 
Besides  that,  I  am,  I  suppose,  the  very  last  man  in  this  whole  nation 


who  should  be  called  upon  to  speak  here  and  now.  Everybody  has 
suffered  more  or  less  by  events  and  proceedings  of  the  recent  paet, 
some  by  wear  and  tear  of  conscience  and  some  by  a  deep  sense  of  op 
pression  and  wrong.  But  perhaps  I,  more  than  most  others,  have  felt 
the  consciousness  that  I  have  lost  the  dignity  of  an  American  citizen. 
I,  in  common  with  the  rest,  am  degraded  and  humiliated.  This  nation 
has  got  her  great  big  foot  in  a  trap.  It  is  vain  to  struggle  for  her  ex 
trication. 

I  am  so  fallen  from  the  proud  estate  of  a  free  citizen,  you  have 
so  abjected  me  that  I  am  fit  for  nothing  on  earth  but  to  represent 
the  poor,  defrauded,  broken-hearted  democracy.  And  because  I  suf 
fer  more,  they  think  me  more  good  for  nothing  than  the  rest  and 
conclude  to  send  me  out  on  this  forlorn  hope,  judging,  no  do.ubt 
truly,  that  it  matters  nothing  what  becomes  of  me.  I  ought  t»  go 
gladly  if  anything  which  I  can  do  or  say  might  have  the  effect  of 
mitigating  the  horrible  calamity  with  which  the  country  is  threat 
ened  :  a  President  deriving  his  title  from  a  shameless  swindle,  not 
merely  of  fraud,  but  a  fraud  detected  and  exposed.  I  know  not  how 
I  would  feel  if  called  upon  to  suffer  death  for  my  country.  I  am  not 
the  stuff  that  martyrs  are  made  of,  but  if  my  life  conld  redeem  this 
nation  from  the  infamy  with  which  she  is  clothed  I  ought  to  go  to 
the  grave  as  freely  as  I  ever  went  to  my  bed.  I  see,  however,  no 
practical  good  that  I  can  do,  and  it  is  mere  weakness  to  complain. 

We  have  certain  objections  to  the  counting  of  this  Hayes  vote  from 
South  Carolina  which  look  to  ine  insuperable,  but  I  cannot  hope  that 
they  will  wear  that  appearance  in  other  men's  eyes.  Perhaps  the 
feeling  which  I  in  common  with  millions  of  others  entertain  on  this 
subject  prevents  us  from  seeing  this  thing  in  its  true  light.  But  you 
are  wise  ;  you  are  calm.  You  can  look  all  through  this  awful  business 
with  a  learned  spirit ;  no  passionate  hatred  of  this  great  fraud  can 
cloud  your  mental  vision  or  shake  the  even  balance  of  yourjudgmeut. 
You  do  not  think  it  any  wrong  that  a  nation  should  be  cheated  by 
false  election  returns.  On  the  contrary,  it  is  rather  a  blessing  which 
Heaven  has  sent  us  in  this  strange  disguise.  When  the  omnipotent 
lie  shall  be  throned  and  sceptered  and  crowned  you  think  we  ought 
all  of  us  to  fall  down  and  worship  it  as  the  hope  of  our  political  sal 
vation.  You  will  teach  us  and  perhaps  we  will  learn  (perhaps  not) 
that  under  such  a  rule  we  are  better  off  than  if  truth  had  prevailed 
and  justice  been  triumphant. 

Give  then  your  cool  consideration  to  these  objections,  and  try  them 
by  the  standard  of  the  law.  I  mean  the  law  as  it  was  before  the 
organization  of  this  Commission.  I  admit  that  since  then  a  great 
revolution  has  taken  place  in  the  law.  It  is  not  now  what  it  used  to 
be.  All  our  notions  of  public  right  and  public  wrong  have  suffered 
a  complete  bouleversement. 

The  question  submitted  to  you  is  whether  the  persons  who  gave 
these  votes  were  "  duly  appointed."  Duly  of  course  means  according 
to  law.  What  law  ?  The  Constitution  of  the  United  States,  the  acts 
of  Congress  passed  in  pursuance  thereof,  the  constitution  of  South 
Carolina  and  the  authorized  acts  of  her  Legislature — these  taken 
all  together  constitute  the  law  of  the  case  before  you. 

By  these  laws  the  right,  duty,  and  power  of  appointing  electors  is 
given  to  the  people  of  South  Carolina ;  that  is  to  say,  the  citizens  of 
the  State  qualified  to  vote  at  general  elections.  Who  are  they  ?  By 
the  constitution  of  the  State  in  order  to  qualify  them  as  voters 
they  must  be  registered.  The  registry  of  a  nat;  ve  citizen  is  a  sine  qua 
non  to  his  right  of  voting  as  much  as  the  naturalization  of  a  foreigner. 

Now,  the  Legislature  never  passed  any  law  fbr  the  registration  of 
voters,  and  no  registration  of  them  was  ever  made.  No  doubt  has 
been  or  can  be  entertained  that  the  object  and  purpose  of  this  omis 
sion  was  fraudulent  and  dishonest ;  for  the  Legislature  as  well  as  the 
executive  department  of  that  government  has  been  in  the  hands  of 
the  most  redemptionless  rogues  on  the  face  of  the  earth.  But  what 
ever  may  have  been  the  motive,  nobody  can  doubt  that  the  legal  effect 
of  this  omission  is  to  make  the  election  illegal. 

That  is  hardly  the  worst  of  it.  The  election  itself,  emancipated 
from  all  law  and  all  authority,  was  no  better  than  a  riot,  a  mob,  a 
general  saturnalia,  in  which  the  soldiers  of  the  United  States  Army 
cut  the  principal  as  well  as  the  decentest  figure.  We  offer  to  prove 
— the  offer  will  go  upon  record,  and  there  it  will  stand  forever — that 
every  poll  in  Charleston  County,  where  they  rushed  into  the  ballot- 
box  7,000  majority,  was  in  possession  of  the  soldiers. 

A  government  whose  elections  are  controlled  by  military  force  can 
not  be  republican  in  form  or  substance.  For  this  I  cite  the  authority 
of  Luther  vs.  Borden,  if  perchance  the  old-time  law  has  yet  .any  in 
fluence.  Do  you  not  see  the  hideous  depth  of  national  degradation 
into  which  you  will  plunge  us  if  you  sanctify  this  mode  of  making 
a  President  ?  Brush  up  your  historical  memory  and  think  of  it  for  a 
moment.  The  man  whom  you  elect  in  this  way  is  as  purely  the 
creature  of  the  military  power  as  Caligula  orDomitian,  for  whom  the 
pretorian  guards  controlled  the  hustings  and  counted  the  votes. 

But  then  we  cannot  get  behind  the  returns,  forsooth !  Not  we  ! 
You  will  not  let  us.  We  cannot  get  behind  them.  No.  That  is  the 
law,  of  course.  We  may  struggle  for  justice ;  we  may  cry  for  mercy ; 
we  may  go  down  on  our  knees,  and  beg  and  woo  for  soma  little  recog 
nition  of  our  rights  as  American  citizens  ;  but  we  might  as  well  put 
up  our  prayers  to  Jupiter,  or  Mars,  as  bring  suit  in  the  court  where 
Rhadamanthus  presides.  There  is  not  a  god  on  Olympus  that  would 
not  listen  to  us  with  more  favor  than  we  shall  be  heard  by  our  ad 
versaries.  We  are  at  their  mercy ;  it  is  only  to  them  that  we  can  ap- 


ELECTORAL  COMMISSION. 


I!)  I 


peal,  because  you  gentlemen  unfortunately  cannot  help  us.  You  are 
bound  by  the  new  law  which  you  have  made.  You  are  of  course 
addicted  like  other  people  to  the  vice  of  consistency,  and  what  is 
done  once  must  be  done  over  again. 

In  the  Louisiana  case  the  people  appointed  electors  in  favor  of 
Tilden,  recorded  their  act,  finished  it,  and  left  their  work  in  such  a 
state  that  nobody  could  misunderstand  it.  But  other  persons,  who 
had  no  power  to  appoint,  falsified  the  record  of  the  actual  appoint 
ment,  partly  by  plain  forgery  and  partly  by  fraud  which  was  as  cor 
rupt  in  morals  and  as  void  in  law  as  any  forgery  could  be.  You  thought 
it  right  and  legal  and  just  to  say  that  you  would  not  look  at  the  rec 
ord  which  the  people  had  made  ;  the  forgery,  the  fraud,  and  the  cor 
ruption  were  too  sacred  to  be  interfered  with  ;  the  truth  must  not  be 
allowed  to  come  in  conflict  with  the  imposture,  lest  the  concussion 
might  be  damaging. 

This  precedent  must  be  followed.  It  is  new  law,  to  be  sure,  but  we 
must  give  it  due  welcome;  and  the  new  lords  that  it  brings  into 
power  must  be  regarded  as  our  "  very  noble  and  approved  good  mas 
ters."  Having  decided  that  electors  were  duly  appointed  inLouisiana 
who  were  known  not  to  be  appointed,  we  cannot  expect  you  to  take 
notice  of  any  fact  similar  or  kindred  to  it  in  South  Carolina. 

Then,  again,  the  question  of  "duly  appointed"  was  decided  in  the 
case  of  Levissee,  an  elector  who  was  an  officer  of  the  United  States 
Government  at  the  time  ho  was  appointed  and  continued  to  be  after 
ward.  The  Federal  Constitution  says  that  no  man  shall  be  ap 
pointed  who  is  in  that  relation  to  the  Federal  Government.  But  you 
held  according  to  law,  mind  you,  that  he  was  a  lawful  elector  and 
his  vote  a  good  vote.  In  other  words,  a  thing  is  perfectly  constitu 
tional  although  it  is  known  to  be  in  the  very  teeth  of  a  constitutional 
interdict. 

Now  you  see  why  we  are  hopeless.  The  present  state  of  the  law  is 
sadly  against  us.  The  friends  of  honest  elections  and  honest  govern 
ment  are  in  deep  despair.  We  once  thought  that  the  verifying  power 
of  the  two  Houses  of  Congress  ought  to  be  brought  always  into  re 
quisition  for  the  purpose  of  seeing  whether  the  thing  that  is  brought 
here  is  a  forgery  and  a  fraud  on  the  one  hand,  or  whether  it  is  a  gen 
uine  and  true  certificate  on  the  other. 

But  while  we  cannot  ask  you  to  go  back  behind  this  certificate, 
will  you  just  please  to  go  to  it — only  to  it — not  step  behind.  If  you 
do  you  will  find  that  it  is  no  certificate  at  all  such  as  is  required  by 
law.  The  electors  must  vote  by  ballot,  and  they  are  required  to  be 
on  oath  before  they  vote.  That  certificate  does  not  show  that  either 
of  those  requirements  was  met,  and  where  a  party  is  exercising  a 
special  authority  like  this  they  must  keep  strictly  within  it,  and  you 
are  not  to  presume  anything  except  what  appears  on  the  face  of  their 
act  to  be  done. 

If  anybody  will  cast  back  his  mind  a  little  into  the  history  of  pres 
idential  elections  or  look  at  the  debates  of  less  than  a  year  ago,  he 
will  remember  that  Mr.  Jefferson  was  charged  when  he  was  Vice- 
President  of  the  United  States  with  having  elected  himself  by  means 
of,  not  a  fraudulent,  but  a  merely  informal  vote  sent  up  from  Georgia. 
The  informality  was  not  in  the  certificate  inside  of  the  envelope,  but 
outside  verification.  Mr.  Matthew  L.  Davis  in  1837  got  up  that  story. 
It  was  not  true,  but  it  was  believed  for  awhile  and  it  cast  great  odium 
on  Mr.  Jefferson's  memory.  It  was  not  an  informality  that  was  nearly 
as  important  as  this,  nothing  like  it.  But  one  of  the  Senators  now 
on  this  bench  referred  to  it  in  a  debate  only  a  short  time  ago,  and  de 
nounced  Mr.  Jefferson  as  having  elected  himself  by  fraud  because  he 
did  not  call  the  attention  of  the  Senate  and  House  of  Representa 
tives  to  that  fact. 

If  Mr.  Jefferson's  memory  ought  to  be  sent  down  to  posterity  cov 
ered  with  infamy  because  he  in  his  own  case  allowed  a  vote  to  be 
counted  which  was  slightly  informal  on  the  outside  of  the  envelope, 
I  should  be  glad  to  know  what  ought  to  be  done  to  those  who  would 
count  this  vote  which  has  neither  form  nor  substance,  which  leaves 
out  all  the  essential  particulars  that  they  are  required  to  certify  ? 

This  great  nation  still  struggles  for  justice ;  a  million  majority  of 
white  people  send  up  their  cry,  and  a  majority  of  more  than  a  quar 
ter  of  a  million  of  all  colors  demand  it.  But  we  cannot  complain, 
I  want  you  to  understand  that  we  do  not  complain.  Usually  it  is  said 
that  "  the  fowler  setteth  not  forth  his  net  in  sight  of  the  bird,"  but 
this  fowler  set  the  net  in  sight  of  the  birds  that  went  into  it.  It  is 
largely  our  own  fault  that  we  were  caught. 

We  are  promised — and  I  hope  the  promise  will  be  kept — that  we 
shall  have  a  good  government,  fraudulent  though  it  be ;  that  the  rights 
of  the  States  shall  be  respected  and  individual  liberty  be  protected. 
We  are  promised  the  same  reformation  which  the  Turkish  government 
is  now  proposing  to  its  people.  The  Sultan  promises  that  if  he  is  sus 
tained  in  his  present  contest  he  will  establish  and  act  upon  certain 
principles. 

First,  the  work  of  decentralization  shall  commence  immediately 
and  the  autonomy  of  the  provinces  shall  be  carefully  looked  after. 
Secondly,  the  people  shall  be  governed  by  their  natural  judges ;  they 
will  not  send  Mohammedans  nor  Christian  renegades  from  Constan 
tinople  down  on  them,  but  they  shall  be  governed  by  people  of  their 
own  faith. 

Thirdly,  no  subordinate  officer  when  he  commits  an  illegal  act 
shall  be  permitted  to  plead  in  justification  the  orders  of  his  superior. 
How  much  we  need  exactly  that  kind  of  reform  in  this  country  ;  and 
how  glad  we  ought  to  be  that  our  Government  is  going  to  bo  as  good 
hereafter  as  the  Turk's. 


They  offer  us  everything  now.  They  denounce  negro  supremacy 
and  carpet-bag  thieves.  Their  pet  policy  for  the  South  is  to  be  aban 
doned.  They  offer  us  everything  but  one ;  but  on  that  subject  their 
lips  are  closely  sealed.  They  refuse  to  say  that  they  will  not  cheat 
us  hereafter  in  the  elections.  If  they  would  only  agree  to  that ;  if 
they  would  only  repent  of  their  election  frauds  and  make  restitution 
of  the  votes  they  have  stolen,  the  circle  of  our  felicities  would  be 
full. 

If  this  thing  stands  accepted  and  the  law  you  have  made  for  this 
occasion  shall  be  the  law  for  all  occasions,  we  can  never  expect  such 
a  thing  as  an  honest  election  again.  If  you  want  to  know  who  will 
be  President  by  a  future  election  do  not  inquire  how  the  people  of 
the  States  are  going  to  vote.  You  need  only  to  know  what  kind  of 
scoundrels  constitute  the  returning  boards  and  how  much  it  will  take 
to  buy  them. 

But  I  think  that  even  that  will  end  some  day.  At  present  you  have 
us  down  and  under  your  feet.  Never  had  you  a  better  right  to  rejoice. 
Well  may  you  say,  "  We  have  made  a  covenant  with  death,  and  with 
hell  are  we  at  agreement ;  when  the  overflowing  scourge  shall  pass 
through,  it  shall  not  come  unto  us  :  for  we  have  made  lies  our  refuge, 
and  under  falsehood  have  we  hid  ourselves."  But  nevertheless  wait 
a  little  while.  The  waters  of  truth  will  rise  gradually,  and  slowly 
but  surely,  and  then  look  out  for  the  overflowing  scourge.  "  The 
refuge  of  lies  shall  be  swept  away  and  the  hiding-place  of  falsehood 
shall  be  uncovered."  This  mighty  and  puissant  nation  will  yet  raise 
herself  up  like  a  strong  man  after  sleep  and  shake  her  invincible 
locks  in  a  fashion  you  little  think  of  now.  Wait,  retribution  will 
come  in  due  time.  Justice  travels  with  a  leaden  heel  but  strikes 
with  an  iron  hand.  God's  mill  grinds  slow  but  dreadfully  fine.  Wait 
till  the  flood-gate  is  lifted  and  a  full  head  of  water  comes  rushing  on. 
Wait,  and  you  will  see  fine  grinding  then. 

Mr.  Representative  COCHRANE.  Mr.  President,  will  you  permit 
me  to  refer  the  Commission  to  one  or  two  authorities  which  I  neg 
lected  to  refer  to  before  ? 

The  PRESIDENT.    We  shall  allow  it. 

Mr.  Representative  COCHRANE.  I  must  ask  pardon  of  the  Com 
mission  for  the  irregularity.  I  desire  to  refer  you  to  section  30  of  article 
8  of  the  constitution  of  the  State  of  South  Carolina,  as  contained  in 
the  publication  of  the  Revised  Statutes  of  South  Carolina,  page  28 : 

Members  of  the  G-oneral  Assembly  and  all  officers,  before  they  eater  upon  the 
execution  of  the  duties  of  their  respective  offices,  shall  take  and  subscribe  the  fol 
lowing  oath : 

Which  oath  is  provided  for.  Then  I  desire  to  call  your  honors'  at 
tention  to  the  provision  of  the  Revised  Statutes  of  the  United  States 
on  page  22,  section  139 : 

The  electors  shall  seal  up  the  certificates  so  made  by  them,  and  certify  npon 
each  that  the  lists  of  all  the  votes  of  such  State  given  for' President,  and  of  all  the 
votes  given  for  Vice-President,  are  contained  therein. 

It  is  hardly  necessary  for  me  to  refer  you  to  the  provision  of  the 
Constitution  requiring  the  voting  to  be  done  by  ballot,  but  I  simply 
call  attention  to  this  fact,  that  the  certificate  upon  the  envelopes  of 
Certificate  No.  1  is  not  in  accordance  with  this  provision  of  section 
139.  It  does  not  certify  that  the  envelope  contains  the  list  of  all 
the  persons  voted  for  for  President  and  Vice-President,  but  simply 
that  it  contains  the  names  of  the  persons  voting. 

Mr.  Commissioner  HUNTON.  Will  you  read  that  provision  refer 
ring  to  the  oath  to  be  taken  ? 

Mr.  Representative  COCHRANE.    Yes,  sir. 

Members  of  the  General  Assembly  and  all  officers,  before  they  enter  upon  the 
execution  of  the  duties  of  their  respective  offices,  shall  take  and  subscribe  the  fol 
lowing  oath. 

Then  follows  the  oath.  The  certificate  upon  the  back  of  the  en 
velope  is  as  follows  : 

"We  certify  thit  this  sealed  envelope  contains  lists  of  the  votes  of  the  State  of 
South  Carolina  for  President  and  Vice-President  of  the  United  States. 

And  that  is  all  that  it  says. 

Mr.  Commissioner  EDMUNDS.  Your  point  is  that  it  does  not  say 
that  it  contains  all  ? 

Mr.  Representative  COCHRANE.  That  it  contains  all  the  votes  in 
this  certificate.  It  is  said  that  all  the  votes  were  cast  for  Mr.  Hayes 
and  Mr.  Wheeler,  and  that  there  were  no  other  votes  cast  except  those 
which  are  mentioned  in  this  certificate.  This  certificate  is  directly 
opposite  in  form  and  terms  to  the  certificates  in  the  cases  of  Florida, 
Louisiana,  and  Oregon. 

We  further  say  that  Certificate  No.  2  contains  the  statement  of  all 
these  facts,  states  that  the  electors  were  duly  sworn  under  the  pro 
visions  of  the  Constitution,  and  that  they  balloted  first  for  President 
and  next  for  Vice-President. 

The  PRESIDENT.  I  understand  that  the  argument  is  closed  on 
both  sides. 

Mr.  Representative  COCHRANE.  I  will  say  to  the  Commission  that 
if  the  Commission  shall  decide  to  admit  the  testimony  or  any  part  of  it 
offered,  the  objectors  and  counsel  will  be  prepared  to  offer  it  at  once. 

Mr.  Commissioner  EDMUNDS.  I  move  that  the  public  proceedings 
of  the  Commission  be  considered  now  closed. 

The  motion  was  agreed  to. 

Mr.  Commissioner  ABBOTT,  (atone  o'clock  and  ten  minutes  p.  m.) 
I  move  that  a  recess  be  taken  until  one  o'clock  and  forty-five  min 
utes  p.  m. 

The  motion  was  agreed  to ;  and  the  Commission  accordingly  took  a 
recess  until  one  o'clock  and  forty-five  minutes  p.  m. 


192 


ELECTORAL  COMMISSION. 


After  the  recess  the  Commission  re-assembled  with  closed  doors  for 
deliberation  in  the  matter  of  the  electoral  vote  of  the  State  of  South 
Carolina. 

After  debate,  (at  four  o'clock  and  twenty  minutes  p.  m.,) 

Mr.  Commissioner  STRONG  moved  that  the  vote  be  taken  on  the 
question  pending  iu  one  hour  from  that  time  ;  and,  after  remarks,  the 
motion  was  withdrawn. 

On  motion  of  Mr.  Commissioner  EDMUNDS,  (at  five  o'clock  and 
seventeen  minutes  p.  in.,)  it  was 

Ordered,  That  the  vote  on  the  pending  question  be  taken  by  six  o'clock  p.  m. 

Mr.  Commissioner  MQRTON  offered  the  following  resolutions : 

Resolved,  That  it  is  not  competent  for  the  two  Houses,  assembled  for  the  purpose 
of  counting  the  votes  for  President  and  Vice-Pcesident,  to  inquire  by  evidence 
whether  a  State  regularly  represented  in  the  two  Houses  of  Congress,  and  recog 
nized  as  a  State  of  the  United  States  by  the  other  departments  of  the  Government, 
has  a  government  republican  in  form. 

Resolved,  That  while  the  existence  of  public  disturbance  and  anarchy  In  any 
State  to  such  an  extent  as  to  make  it  impossible  for  the  State  to  exercise  its  right 
to  appoint  electors  of  President  and  Vice-President,  and  to  express  its  will  in  that 
behalf,  is  sufficient  cans  efor  rejecting  any  electoral  votes  purporting  to  be  the  votes 
of  electors  appointed  thereby,  yet,  that  when  a  State  is  regularly  represented  as  a 
State  in  the  Congress  of  the  United  States,  and  is  recognized  as  a  State  by  the  other 
departments  of  the  Government,  and  has  a  government  republican  in  form,  and 
does  appoint  electors  in  the  manner  prescribed  by  the  Legislature  thereof,  evidence 
cannot  be  received  by  the  two  Houses  of  Congress  assembled  to  count  the  votes 
for  President  and  Vice-President  as  aforesaid  to  show  that  disturbances  existed  at 
Ihe  time  of  election  which  may  have  interfered,  to  a  greater  or  less  extent,  with 
the  freedom  of  election  at  the  polls  in  said  State. 

Resolved,  That  it  is  not  competent  for  the  two  Houses  of  Congress  when  assem 
bled  to  count  the  votes  for  President  and  Vice-President  by  taking;  evidence  to  in 
quire  into  the  regularity  of  the  action  of  the  President  of  the  United  States  in 
sending  a  military  force  into  any  State  for  the  preservation  of  order  or  the  sup 
pression  of  insurrection  and  domestic  violence,  iu  order  by  such  proof  to  lay  a 
ground  for  rejecting  the  electoral  vote  of  said  State. 

Resolved,  That  iu  view  of  the  propositions  contained  in  the  three  foregoing  reso 
lutions  the  evidence  offered  to  show  that  the  State  of  Soutli  Carolina  at  the  late 
election  did  not  have  a  republican  form  of  government,  and  the  evidence  offered  on 
the  subject  of  disorder  and  violence  and  the  presence  of  troops  in  said  State  dur 
ing  said  election,  is  not  competent,  but  that  notwithstanding  the  offer  of  such  evi 
dence  the  electoral  votes  of  South  Carolina  ought  to  bo  received  and  counted  if  not 
objectionable  on  other  grounds. 

Resolved,  That  the  other  objections  to  certificate  No.  1  show  no  valid  cause  for 
rejecting  the  same. 

Mr.  Commissioner  FIELD  offered  the  following  as  a  substitute 
therefor: 

Resolved,  That  evidence  is  admissible  to  show  that  prior  to  and  during  the  elec 
tion  on  the  7th  day  of  November,  1870,  in  the  State  of  South  Carolina,  there  were 
unlawfully  stationed  in  various  parts  of  the  State  at  or  near  the  polling-places  de 
tachments  of  troops  of  the  Army  of  the  United  States,  by  whose  presence  and 
interference  qualified  voters  of  the  State  were  deprived  of 'the  right  of  suffrage, 
and  a  free  choice  by  the  people  of  presidential  electors  was  prevented. 

Resolved,  That  evidence  is  admissible  to  show  that  at  the  election  on  the  7th  day 
of  November,  1870,  in  South  Carolina,  there  were  stationed  at  the  several  polling- 
places  in  the  State  deputy  marshals  of  the  United  States  exceeding  one  thousand 
in  number,  by  whose  unlawful  action  and  interference,  under  orders  from  the  De 
partment  of  Justice,  qualified  voters  of  the  State  were  deprived  of  the  right  of 
suffrage,  and  a  free  choice  by  the  people  of  presidential  electors  was  prevented. 

The  question  being  on  the  adoption  of  the  substitute,  it  was  de 
cided  in  the  negative : 

YEAS 7 

NAYS 8 

Those  who  voted  in  the  affirmative  were  :  Messrs.  Abbott,  Bayard, 
Clifford,  Field,  Hunton,  Keruau,  and  Payne. 

Those  who  voted  in  the  negative  were :  Messrs.  Bradley,  Edmunds, 
Frelinghuysen,  Garfield,  Hoar,  Miller,  Morton,  and  Strong. 

The  question  recurring  on  the  resolutions  offered  by  Mr.  Commis 
sioner  MOUTON,  it  was  decided  in  the  affirmative : 

YEAS _  g 

NAYS 7 

Those  who  voted  in  the  affirmative  were :  Messrs.  Bradley,  Ed 
munds,  Frelinghuysen,  Garfield,  Hoar,  Miller,  Morton,  and  Strong. 

Those  who  voted  in  the  negative  were  :  Messrs.  Abbott,  Bayard, 
Clifford,  Field,  Hunton,  Kernan,  and  Payne. 

Mr.  Commissioner  FRELINGHUYSEN  offered  the  following  reso 
lution  : 

Resolved,  That  Theodore  R.  Barker,  S.  McGowan.  James  TV.  Harrington,  John 
Isaac  Ingram,  William  Wallace,  John  B.  Erwin,  and  Robert  Aldrich,  the  persons 
named  as  electors  in  certificate  No.  2,  were  not  the  lawful  electors  for  the  State  of 
South  Carolina  and  that  their  votes  are  not  the  votes  provided  for  by  the  Constitu 
tion  of  the  United  States,  and  should  not  be  counted. 

The  question  being  on  the  adoption  of  the  resolution,  it  was  decided 
in  the  affirmative : 

YEAS .  15 

NAYS ".".'.  Y.Y.Y.Y. '.'.'.     0 

Those  who  voted  in  the  affirmative  were :  Messrs.  Abbott,  Bayard, 
Bradley,  Clifford,  Edmunds,  Field,  Frelinghuysen,  Garfield,   Hoar, 
Huuton,  Kernan,  Miller,  Morton,  Payne,  and  Strong. 
Mr.  Commissioner  MORTON  offered  the  following  resolution  : 
Resolved,  That  C.  C.  Bowen,  J.  Winsmith,  Thomas  B.  Johnston,  Timothy  Hur 
ley,  W.  B.  Nash,  Wilson  Cook,  and  W.  F.  Myers,  the  persons  named  as  electors  in 


The  question  being  on  the  adoption  of  the  resolution,  it  was  decided 
in  the  affirmative : 

YEAS 8 

NAYS 


Those  who  voted  in  the  affirmative  were:  Messrs.  Bradley,  Ed 
munds,  Freliughuysen,  Garfield,  Hoar,  Miller,  Morton,  and  Strong. 

Those  who  voted  in  the  negative  were :  Messrs.  Abbott,  Bayard, 
Clifford,  Field,  Hnnton,  Kernan,  and  Payne. 

Mr.  Commissioner  MILLER  offered  the  following : 

Ordered,  That  the  following  be  adopted  as  the  final  decision  and  report  in  the 
matters  submitted  to  the  Commission  as  to  the  electoral  vote  of  the  State  of  South 
Carolina. 

ELECTORAL  COMMISSION, 
Washington,  D.  O.,  February  27,  A.  D.  1877. 
To  the  President  of  the  Senate  of  the  United  States,  presiding  in  the  meeting  of 

the  two  Houses  of  Congress,  under  the  act  of  Congress  entitled  "An  act  to  pro 
vide  for  and  regulate  the  counting  of  votes  for  President  and  Vice-President,  and 

the  decision  of  questions  arising  thereon,  for  the  term  commencing  March  4,  A.  D. 

1877,"  approved  January  29,  A.  D.  1877. 

The  Electoral  Commission  mentioned  in  said  act,  having  received  certain  certifi 
cates,  or  papers  purporting  to  be  certificates,  and  papers  accompanying  the  same,  of 
the  electoral  votes  from  the  State  of  South  Carolina,  and  the  objections  thereto, 
submitted  to  it  under  said  act,  now  report  that  it  has  duly  considered  the  same, 
pursuant  to  said  act,  and  has  bya  majority  of  votes  decided,  and  does  hereby  decide, 
that  the  votes  of  C.  C.  Bowen,  J.  Winsmith,  Thomas  B.Johnston,  Timothy  Hurley, 
W.  B.  Nash,  Wilson  Cook,  and  W.  F.  Myers,  named  in  the  certificate  of  D.  H. 
Chamberlain,  governor  of  said  State,  which  votes  are  certified  by  said  persons  as 
appears  by  the  certificates  submitted  to  the  Commission  as  aforesaid,  and  marked 
"  No.  1,  N.  C."  by  said  Commission,  and  herewith  returned,  are  the  votes  provided 
for  by  the  Constitution  of  the  United  States,  and  that  the  same  are  lawfully  to  be 
counted  as  therein  certified,  namely:  seven  votes  for  Rutherford  B.  Hayes,  of 
the  State  of  Ohio,  for  President,  and  seven  votes  lor  William  A.  Wheeler,' of  the 
State  of  New  York,  for  Vice-President. 

The  Commission  has  by  a  majority  of  votes  also  decided,  and  does  bereby  decide 
and  report,  that  the  seven  persons  first  above  named  were  duly  appointed  elect 
ors  in  and  by  the  State  of  South  Carolina. 

The  brief  ground  of  this  decision  is,  that  it  appears  upon  such  evidence  as  by  the 
Constitution  and  the  law  named  in  said  act  of  Congress  is  competent  and  pertinent 
to  tbe  consideration  of  the  subject  that  the  beforementioned  electors  appear  to 
have  been  lawfully  appointed  such  electors  of  President  and  Vice-President  of  the 
United  States  for'  the  term  beginning  March  4,  A.  D.  ls77,  of  the  State  of  South 
Carolina,  and  that  they  voted  as  such  at  the  time  and  in  the  manner  provided  for 
by  the  Constitution  of 'the  United  States  and  tb«  law. 

And  the  Commission,  as  further  grounds  for  their  decision,  are  of  opinion  that 
the  failure  of  the  Legislature  to  provide  a  system  for  the  registration  of  persons  en 
titled  to  vote,  does  not  render  nugatory  all  elections  held  under  laws  otherwise  suf 
ficient,  though  it  may  be  the  duty  of  the  Legislature  to  enact  such  a  law.  If  it  were 
otherwise  all  government  in  that  State  is  a  usurpation,  its  officers  without  authority, 
and  the  social  compact  in  that  State  is  at  an  end. 

That  this  Commission  must  take  notice  that  there  is  a  government  in  South  Car 
olina  republican  in  form  since  its  constitution  provides  for  such  a  government, 
and  it  is,  and  was  on  the  day  of  appointing  electors  so  recognized  by  the  executive 
and  by  both  branches  of  the  legislatve  departments  of  the  Government  of  the 
United  States. 

That  so  far  as  this  Commission  can  take  notice  of  the  presence  of  the  soldiers  of 
tbe  United  States  in  the  State  of  South  Carolina  during  the  election  it  appears 
that  they  were  placed  there  by  the  President  of  the  United  States  to  suppress  in 
surrection  at  the  request  of  the  proper  authorities  of  the  State. 

But  we  are  also  of  opinion  that  from  the  papers  before  us  it  appears  that  the  gov 
ernor  and  secretary  of  state  having  certified  under  the  seal  of  the  State  that  the 
electors  whose  votes  we  have  decided  to  be  the  lawful  electoral  votes  of  the  State 
were  duly  appointed  electors,  which  certificate,  both  by  presumption  of  law  and  by 
the  certificate  of  the  rival  claimants  of  the  electoral  office,  was  based  upon  the  ac 
tion  of  t  he  State  canvassers,  there  exists  no  power  in  this  Commission,  as  there  exists 
none  in  the  two  Houses  of  Congress  in  counting  the  electoral  vote,  to  iuquiie  into 
the  circumstances  under  which  the  primary  vote  for  electors  was  given. 

The  power  of  the  Congress  of  the  United  States  in  its  legislative  capacity  to  in 
quire  into  the  matters  alleged,  and  to  act  upon  the  information  so  obtained,  is  a 
very  different  one  from  its  power  in  the  matter  of  counting  the  electoral  votes.  The 
votes  to  be  counted  are  those  presented  by  the  States,  and  when  ascertained  and 
presented  by  the  proper  authorities  of  the  States  they  must  be  counted. 

The  Commission  has  a'so  decided,  and  does  hereby  decide,  by  a  majority  of  votes, 
and  report,  that  as  a  consequence  of  the  foregoing,  and  upon  the  grounds  before 
stated,  that  the  paper  purporting  to  be  a  certificate  of  the  electoral  vote  of  said 
State  of  South  Carolina,  signed  by  Theodore  R.  Barker,  S.  McGowan,  Jno.  W. 
Harrington,  Jno.  Isaac  Ingram,  Win.  Wallace,  John  B.  Erwin,  and  Robt.  Aldrich, 
marked  "  No.  2,  N.  C.  "  by  the  Commission  and  herewith  returned,  is  not  the  cer 
tificate  of  the  votes  provided  for  by  the  Constitution  of  tbe  United  States,  and  that 
they  ought  not  to  be  counted  as  such. 

Done  at  Washington,  D.  C.,  the  day  and  year  first  above  written. 

The  question  being  on  the  adoption  of  the  order,  it  was  decided  in 
the  affirmative : 

YEAS 8 

NAYS 7 

Those  who  voted  in  the  affirmative  were :  Messrs.  Bradley,  Edmunds, 
Frelinghuysen,  Garfield,  Hoar,  Miller,  Morton,  and  Strong — 8. 

Those  who  voted  in  the  negative  were :  Messrs.  Abbott,  Bayard, 
Clifford,  Field,  Hunton,  Kernan,  and  Payne — 7. 

So  the  report  of  the  Commission  was  adopted ;  and  said  decision 
and  report  were  thereupon  signed  by  the  members  agreeing  therein, 
as  follows : 

SAM.  F.  MILLER. 

W.  STRONG. 

JOSEPH  P.  BRADLEY. 

GEO.  F.  EDMUNDS. 

O.  P.  MORTON. 

FRED'K  T.  FRELINGHUYSEN. 

JAMES  A.  GARFIELD. 

GEORGE  F.  HOAR. 

Mr.  Commissioner  MILLER  offered  the  following  :  N 

Ordered,  That  the  President  of  the  Commission  transmit  a  letter  to  tbe  President 
of  the  Senate  in  the  following  words  : 

"  WASHINGTON,  D.  C.,  February  27,  A.  D.  1877. 

"  SIR  :  I  am  directed  by  the  Electoral  Commission  to  inform  the  Senate  that  it  has 
considered  and  decided  upon  the  matters  submitted  to  it  under  the  actof  Congress 
concerning^  the  same,  touching  the  electoral  votes  from  the  State  of  South  Carolina, 
and  herewith,  by  direction  of  said  Commission,  I  transmit  to  you  the  said  decision, 
iu  writing,  signed  by  the  members  agreeing  therein,  to  be  read  at  the  meeting  of 


ELECTORAL  COMMISSION. 


193 


the  two  Houses,  according  to  said  act.    All  the  certificates  and  papers  sent  to  the 
Commission  by  the  President  of  the  Seriate  are  herewith  returned. 
"  Hon.  THOMAS  "W.  FERHY, 

"  President  of  the  Senate." 

The  question  being  on  the  adoption  of  the  order,  it  was  determined 
in  the  affirmative;  and  the  letter  was  accordingly  signed,  as  follows : 

"  NATHAN  CLIFFORD, 
"  President  of  the  Commission." 

Mr.  Commissioner  MILLER  offered  the  following : 

Ordered,  That  the  President  of  the  Commission  transmit  to  the  Speaker  of  the 
House  of  Representatives  a  letter  in  the  following  words : 

"WASHINGTON,  D.  C.,  February  27,  1877. 

"Sm:  T  am  directed  by  the  Electoral  Commission  to  inform  the  House  of  Rep 
resentatives  that  it  has  considered  and  decided  upon  the  matters  submitted  to  it 
under  the  act  of  Congress  concerning  the  same,  touching  the  electoral  votes  from 
the  State  of  South  Carolina,  and  has  transmitted  said  decision  to  the  President  of 
the  Senate,  to  be  read  at  the  meeting  of  the  two  Houses,  according  to  said  act." 

"Hon.  SAMUEL  J.  RANDALL, 

"  Speaker  of  the  House  of  Representatives." 

The  question  being  on  the  adoption  of  the  order,  it  was  decided  in 
the  affirmative ;  and  the  letter  was  accordingly  signed,  as  follows : 

"NATHAN  CLIFFORD, 

"  President  of  the  Commission." 

Mr.  MORTON  offered  the  following  resolution : 

Resolved,  That  the  thanks  of  this  Commission  are  due  to  Commissioner  CLIFFORD 
for  the  ability,  impartiality,  and  urbanity  with  which  he  has  presided  over  its  de 
liberations. 

And  the  same  was  adopted  by  a  unanimous  vote. 
Mr.  Commissioner  STRONG  moved  the  following  order  : 
Ordered,  That  the  members  of  the  Commission  be  at  liberty  to  reduce  to  writing 
the  remarks  made  by  them  during  the  consultations  of  the  Commission,  and  cause 
them  to  be  published  in  the  printed  proceedings  on  or  before  the  15th  day  of  March 
next. 

The  question  being  on  the  adoption  of  the  order,  it  was  decided  in 
the  affirmative : 

YEAS... 10 

NAYS 4 

Those  who  voted  in  the  affirmative  were  :  Messrs.  Bayard,  Bradley, 


Clifford,  Edmunds,  Froliiighuysou,  Garfield,  Hoar,  Miller,  Morton,  and 
Strong — 10. 

Those  who  voted  in  the  negative  were :  Messrs.  Abbott,  Field,  Hun- 
ton,  and  Payne — 4. 

On  motion  of  Mr.  Commissioner  MILLER,  it  was 

Ordered,  That  the  injunction  of  secrecy  imposed  on  the  acts  and  proceedings  of 
the  ConunissioE  be  removed, 

On  motion  of  Mr.  Commissioner  GARFIELD,  (-at  six  o'clock  and 
fifty-four  minutes  p.  m.,)  the  Commission  adjourned  until  eleven 
o'clock  a.  m.,  Friday,  March  2,  unless  sooner  called  together  by  the 
President. 


FRIDAY,  March  2,  1877. 

The  Commission  met  at  eleven  o'clock  a.  m.,  pursuant  to  adjourn 
ment. 

Present,  the  President  and  Commissioners  MILLER,  STRONG,  FIELD, 
BRADLEY,  MORTON,  FRELINGHUYSEN,  KERNAJN,  PAYNE,  and  ABBOTT. 

The  Journal  of  Tuesday  last  was  read  and  approved. 

Mr.  Commissioner  FRELINGHUYSEN,  from  the  committee  ap 
pointed  to  consider  the  allowances  to  be  made  to  the  officers  and  per 
sons  who  had  been  employed  in  the  service  of  the  Commission,  sub 
mitted  a  report,  which  was  read,  considered,  and  agreed  to. 

On  motion  of  Mr.  Commissioner  MORTON,  it  was 

Ordered,  That  the  time  heretofore  allowed  for  the  filing  of  opinions  by  members 
of  the  Commission  be  extended  until  the  close  of  the  month  of  March. 

On  motion  of  Mr.  Commissioner  MILLER,  it  was 

Ordered,  That  450  copies  of  the  RECORD  (after  all  the  proceedings,  including  the 
arguments  of  the  Commissioners,  shall  have  been  published)  shall  be  bound  with 
an  index,  under  the  care  of  the  Secretary  and  his  assistants,  and  distributed  equally 
among  the  members  of  the  Commission. 

At  the  suggestion  of  the  President,  it  was 

Ordered,  That  the  minutes  of  to-day's  proceedings,  after  they  shall  have  been 
prepared  by  the  Secretary,  be  read  by  the  President,  and  if  approved  by  him  be  con 
sidered  as  approved  by  the  Commission. 

On  motion  of  Mr.  Commissioner  PAYNE  (at  eleven  o'clock  and 
thirty  minutes  a.  m.)  the  Commission  adjourned  sine  die. 


13 


REMARKS 


MEMBERS  OF  THE  ELECTORAL  COMMISSION, 

IN    THE     CONSULTATIONS    THEREOF, 

AS  REDUCED  TO  WRITING  BY  THEMSELVES,  IN  ACCORDANCE  WITH  THE  RESOLUTION  OF  THE  COMMISSION. 


Remarks  of  Mr.  Commissioner  Morton. 

FLORIDA. 

The  Electoral  Commission  having  under  consideration  an  offer  of  evidence  to 
impeach  the  canvass  of  the  November  election  in  Florida  for  presidential  electors 
made  by  the  State  canvassing  board — 

Mr.  Commissioner  MORTON  said: 

Mr.  PRESIDENT  :  By  the  statute  of  Florida  enacted  in  1872  the  secre 
tary  of  state,  attorney-general,  comptroller  of  public  accounts,  or 
any  two  of  them,  together  with  any  other  member  of  the  cabinet  who 
may  be  designated  by  them  were,  constituted  a  board  of  canvassers  to 
canvass  the  returns  of  the  election  and  determine  and  declare  who 
have  been  elected  State  officers  and  presidential  electors.  The  stat 
ute  provides  that — 

If  any  such  returns  shall  be  shown  or  shall  appear  to  be  so  irregular,  false,  or 
fraudulent  that  tho  board  shall  be  uuable  to  determine  the  true  vote  for  any  such 
officer  or  member,  they  shall  so  certify,  and  shall  not  include  such  return  in  their 
determination  and  declaration ;  and  the  secretary  of  state  shall  preserve  and  tile 
in  his  office  all  such  returns,  together  with  such  other  documents  and  papers  as 
may  have  been  received  by  him  or  by  said  board  of  canvassers. 

Under  this  statute  the  secretary  of  state,  the  comptroller  of  public 
accounts,  and  the  attorney-general  acted  as  a  board  of  State  can 
vassers,  and  on  the  morning  of  the  6th  of  December,  1876,  a  majority 
of  them  returned  and  certified  that  Frederick  C.  Humphreys,  Charles 
H.  Pearce,  William  H.  Holden,  and  Thomas  W.  Long  had  been  chosen 
as  electors.  Afterward,  on  the  same  day,  the  governor  of  the  State,  M. 
L.  Stearns,  issued  to  them,  as  electors,  hia  certificate,  and  they  cast 
their  votes  in  due  form  of  law  for  Rutherford  B.  Hayes  for  President 
and  William  Wheeler  as  Vice-Presiden  t  and  certified  the  same  to  the 
President  of  the  Senate. 

Afterward,  the  supreme  court  of  the  State  issued  a  mandamus 
directing  the  board  of  canvassers  to  make  auother  count  of  the 
votes  for  governor  and  other  State  officers,  rejecting  all  testimony  ot 
irregularity  and  fraud  except  such  as  might  appear  upon  the  face  of 
the  returns.  Under  this  order  of  the  court  the  board  of  canvassers 
was  reconvened  and  recounted  the  votes  in  accordance  with  the 
order  made  by  the  court  and  declared  Drew  and  the  other  democratic 
candidates  for  State  offices  to  have  been  elected.  They  at  the  same 
time  made  a  recount  of  the  votes  for  electors  and  again  declared  the 
Hayes  electors  to  have  been  chosen.  After  Drew  had  been  inaugu 
rated  governor,  and  the  new  secretary  of  state,  attorney-general,  and 
comptroller  of  public  accounts  had  taken  their  offices,  the  Legisla 
ture  being  in  session,  in  January,  1877,  passed  an  act  requiring  the  new 
secretary  of  state,  comptroller  of  public  accounts,  the  attorney-gen 
eral  and  such  other  members  of  the  cabinet  as  they  might  choose,  to 
reconvene  as  a  board  of  canvassers  to  count  the  votes  for  electors. 
This  they  did  on  the  19th  day  of  January,  and  declared  Wilkinson 
Call,  Jellies  E.  Yonge,  Robert  Bullock,  and  Robert  B.  Hilton  to  have 
been  chosen  as  electors.  The  same  persons  had  assembled  on  the  6th 
day  of  December,  and  assuming  to  have  been  chosen  as  electors  voted 
for  Samuel  J.  Tilden  as  President  and  Thomas  A.  Hendricks  as  Vice- 
President,  and  sealed  up  their  votes  and  sent  them  to  the  President 
of  the  Senate,  inclosing  with  them  i  certificate  from  William  A. 
Cocke,  attorney-general,  certifying  to  their  election  as  electors. 

On  the  morning  of  the  6th  of  December  an  application  was  made 
in  the  circuit  court  of  Florida  in  the  name  of  the  State  on  the  rela 
tion  of  Wilkinson  Call,  James  E.  Yonge,  Robert  Bullock,  and  Robert 
B.  Hilton,  to  which  the  Hayes  electors  were  made  defendants  and 
upon  whom  process  was  served  at  one  o'clock  on  the  6th  of  Decem 
ber  before  the  said  Hayes  electors  had  cast  their  votes  for  President 
and  Vice-President.  By  the  terms  of  the  writ  they  were  required  to 
appear  in  the  court  on  the  18th  of  January,  1877,  to  show  by  what 
right  they  claimed  to  act  as  electors.  This  writ  was  prosecuted  to 
final  judgment  on  the  '29th  day  of  January,  1877,  and  judgment  of  the 
court  was  rendered  declaring  that  the  Tilden  electors  had  been  chosen 
as  such  by  the  votes  of  the  people  on  the  7th  of  November  and  that 
the  Hayes  electors  had  no  title  whatever  to  the  office. 


The  Constitution  provides : 

The  electors  shall  meet  in  their  respective  States  and  vote  by  ballot  for  Presi 
dent  and  Vice-President,  one  of  whom,  at  least,  shall  not  be  an  inhabitant  of  tho 
same  State  with  themselves ;  thev  shall  name  in  their  ballots  the  person  voted  for 
as  President,  and  in  distinct  ballots  the  person  voted  for  as  Vice-President,  and 
they  shall  make  distinct  lists  of  all  persons  voted  for  as  President,  and  of  all  per 
sons  voted  for  as  Vice-President,  and  of  the  number  of  votes  for  each ;  which  lists 
they  shall  sign  and  certif y,  and  transmit  sealed  to  the  seat  of  Government  of  the 
United  States,  directed  to  the  President  of  the  Senate ; — the  President  of  the  Sen 
ate  shall,  in  the  presence  of  the  Senate  and  House  of  Representatives,  open  all  the 
certificates,  and  the  votes  shall  then  be  counted ; — the  person  having  the  greatest 
number  of  votes  for  President,  shall  be  the  President,  if  such  number  be  a  major 
ity  of  the  whole  number  of  electors  appointed ;  and  if  no  person  have  such  majority, 
then  from  the  persons  having  the  highest  numbers,  not  exceeding  three  on  the  list 
of  those  voted  for  as  President,  the  House  of  Representatives  shall  choose  imme 
diately,  by  ballot,  the  President. 

Leaving  out  of  view  the  disputed  question  who  shall  count  the  votes, 
and  assuming  that  the  power  belongs  to  the  two  Houses,  and  was  by 
them  properly  vested  in  this  Commission,  the  question  still  remains, 
what  is  embraced  in  the  phrase  "  the  votes  shall  then  be  counted." 

And  first,  "  What  votes  shall  be  counted  I"  I  answer,  "  The  votes 
recorded  in  the  certificates  which  the  President  of  the  Senate  is  re 
quired  to  open  in  the  presence  of  the  two  Houses."  May  the  two 
Houses  inquire  whether  a  certificate  is  a  forgery  f  Certainly ;  because 
the  President  of  the  Senate  is  only  required  to  open  in  the  presence 
of  the  two  Houses  the  certificates  from  the  electors.  If  the  certificate 
is  a  forgery,  it  is  not  from  the  electors.  The  thing  to  be  ascertained 
is  that  the  certificate  is  from  the  electors  of  the  State,  and  if  it  is,  then 
the  votes  contained  in  it  are  to  be  counted.  If  the  votes  were  cast  by 
the  electors  of  the  State,  is  it  competent  for  the  two  Houses  or  this 
Commission  to  inquire  whether  such  persons  had  the  requisite  quali 
fications  to  be  electors  as  prescribed  by  the  Jaws  of  the  State,  or  were 
eligible  under  the  Constitution  of  the  United  States,  and  if  found 
in  the  negative,  reject  their  votes!  I  answer,  ''No!"  Such  inquiry 
and  rejection  would  be  inconsistent  with  the  positive  command  of  the 
Constitution,  that  the  votes  contained  in  the  certificates  "  shall  then 
be  counted."  There  is  no  time  provided  for  such  an  inquiry,  and  it  is 
evident  that  it  was  not  contemplated.  The  injunction  was  placed  upon 
the  States  that  they  should  not  appoint  as  an  elector  a  member  of 
Congress  or  any  person  holding  an  office  of  trust  or  profit  under  the 
United  States ;  but  if  the  States  disregard  the  injunction  there  is  no 
time  or  place  for  trial  of  the  question  when  the  votes  are  counted.  We 
should  do  violence  to  the  intelligence  of  the  framers  of  the  Constitu 
tion  if  we  supposed  they  intended  the  result  of  a  presidential  elec 
tion  might  be  changed  by  the  discovery  after  the  election,  or  after 
the  votes  had  been  cast  by  the  electors,  that  an  elector  was  disqual 
ified.  It  is  a  matter  in  which  the  elector  has  no  other  interest  than 
that  of  the  whole  body  of  citizens,  and  we  are  not  at  liberty  to  sup 
pose  that  the  wishes  of  a  State  should  be  defeated  by  the  fact  that 
an  elector  was  ineligible  for  some  cause  of  which  the  mass  of  the 
voters,  or  the  appointing  power,  whatever  it  might  be,  had  no  knowl 
edge.  The  process  of  counting  the  votes  was  intended  to  be  short 
and  simple.  The  States  were  to  appoint  electors  in  the  manner  pre 
scribed  by  their  Legislatures,  and  the  electors  were  to  meet  in  the 
several  States  and  vote  upon  the  same  day ;  the  records  of  their 
transactions  were  to  be  sent  to  the  President  of  the  Senate  in  sealed 
envelopes,  and  by  him  to  be  opened  in  the  presence  of  the  two  Houses, 
and  the  votes  were  then  to  be  counted. 

Whether  it  is  competent  for  Congress  to  pass  laws  under  which  the 
title  of  a  President  may  be  tried  in  the  courts  upon  a  writ  of  quo 
warranto,  in  which  the  very  right  and  truth  of  the  election  may  be 
examined,  is  not  material  for  the  present  inquiry.  We  cannot  by 
logic  or  imagination  enlarge  the  simple  provision  of  the  Constitution, 
that  the  certificates  of  the  electors  from  the  various  States  shall  be 
opened  in  the  presence  of  the  two  Houses  and  the  votes  therein  con 
tained  "shall  then  be  counted."  If  it  should  appear  when  the  cer 
tificates  are  opened  that  the  requirements  of  the  Constitution  had  not 
been  complied  with,  for  example,  that  the  electors  did  not  vote  by 
ballot,  or  that  they  did  not  designate  in  distinct  ballots  the  persons 
voted  for  as  President  and  Vice-Presideni ,  or  that  the  electors  were 
holding  offices  of  trust  and  profit  under  the  United  States  and  there- 


196. 


ELECTORAL  COMMISSION. 


fore  ineligible,  it  might  be  the  duty  of  the  two  Houses — although 
upon  this  point  I  give  no  opinion — to  reject  such  votes  for  there  it 
would  appear  affirmatively  in  the  certificate,  over  the  signatures  of 
the  electors,  that  they  had  not  conformed  to  the  Constitution  or  that 
that  they  were  not  eligible.  To  reject  such  votes  would  be  going  to 
the  limit  of  the  power  of  the  two  Houses  to  disobey  the  express  com 
mand  of  the  Constitution  that  "  the  votes  shall  then  be  counted." 
But  if  the  certificates  were  silent  as  to  whether  the  electors  voted  by 
ballot  or  were  ineligible,  then  such  votes  must  be  counted  and  the 
two  Houses  have  no  power  to  make  an  inquiry  whether  the  electors 
voted  by  ballot  or  were  eligible. 

The  word  "  counted  "  means  enumerated.  Had  it  boon  intended  to 
give  the  two  Houses,  or  whoever  counted  the  votes,  any  judicial  or 
revisory  power  over  them,  beyond  mere  enumeration,  the  purpose 
would  have  been  expressed  in  words.  In  the  several  States  the  can 
vassing  or  returning  officers  are  held  to  a  simple  ministerial  enumer 
ation  of  the  votes,  unless  enlarged  powers  are  expressly  given  by  the 
statute.  Strange  to  say,  in  this  very  case,  those  who  insist  that  this 
Commission  has  power  to  go  behind  the  decision  of  the  Florida  return 
ing  board,  made  at  the  proper  time,  before  the  6th  of  December,  and 
to  receive  testimony  impeaching  its  truthfulness  and  legality,  are 
compelled  to  reverse  the  rule  and  nullify  the  principle  when  consid 
ering  the  action  of  the  returning  board  itself,  acting  under  a  statute 
much  broader  than  the  provision  in  the  Constitution. 

The  statute  under  which  they  acted  contains  the  provision  I  quoted 
at  the  beginning  of  iny  remarks  and  by  necessary  construction  gives 
the  board  the  power  to  take  testimony  to  show  whether  a  return  was 
"  false  or  fraudulent." 

It  is  insisted  that  this  statute  did  not  permit  the  board  to  look  be 
yond  the  mere  face  of  the  papers  and  take  evidence  to  show  that  any 
return  from  a  county  or  precinct  was  irregular,  false,  or  fraudulent. 
This  construction  does  violence  to  the  language  and  spirit  of  the 
statute,  and  it  is  hard  to  see  how  any  court  could  maintain  it,  and 
yet  those  maintaining  it  insist,  in  the  next  breath,  that  the  consti 
tutional  declaration  that  "  the  votes  shall  then  be  counted  "  gives  to 
this  Commission  the  most  enlarged  powers  of  inquiry,  far  beyond  any 
attempted  to  be  exercised  by  the  Florida  canvassing  board. 

If  the  Florida  statute  gives  no  authority  to  take  testimony  or  to  look 
beyond  the  mere  face  of  the  returns,  what  shall  be  said  of  the  Consti 
tution  of  the  United  States,  which  declares  that  when  the  certificates 
are  opened  "  the  votes  shall  then  be  counted  ?"  The  whole  case  in 
favor  of  the  Tilden  electors  consists  in  the  demand  that  the  returns 
from  the  various  counties  and  precincts  of  the  State  of  Florida  shall 
be  received  and  counted,  aud  that  no  evidence  shall  be  admitted  to 
show  fraud  or  violence ;  and  this  demand  is  made  in  the  face  of  a 
statute  evidently  giving  to  the  returuing-officers  power  to  take  testi 
mony  and  to  reject  any  return  if  it  be  shown  to  have  been  irregular, 
false,  or  fraudulent ;  and  then,  reversing  the  principle  absolutely,  to 
demand  that  this  Commission,  representing  the  two  Houses,  under 
the  brief  command  of  the  Constitution  "  to  count  the  votes,"  shall  go 
behind  the  decision  of  the  proper  officers  of  Florida  and  make  in 
quires,  both  of  law  and  fact,  and  exercise  the  highest  judicial  powers. 

Aside  from  the  consideration  of  matters  which  might  appear  upon 
the  face  of  the  certificate,  there  is  absolutely  but  one  thing  to  be 
done,  and  that  is  to  identify  the  certificates  as  coming  from  the  elect 
ors  of  the  States.  If  they  come  from  the  electors  of  the  States,  the 
votes  are  to  be  counted.  How,  then,  shall  it  be  known  that  the  cer 
tificate  comes  from  the  electors  of  the  State?  There  is  no  require 
ment  in  the  Constitution  that  the  electors  shall  be  certified  by  the 
governors  of  the  States.  That  is  a  plan  of  identification,  which  was 
not  devised  until  five  years  after  the  adoption  of  the  Constitution 
and  three  years  after  the  first  presidential  election.  The  positive  re 
quirement  of  the  Constitution  that  the  certificates  from  the  electors 
appointed  by  the  States  shall  be  opened  and  the  votes  therein  counted 
cannot  be  defeated  by  an  act  of  Congress  making  the  certificate  of 
a  governor  necessary  to  the  right  of  the  elector  to  vote  and  to  have 
his  certificate  opened  and  his  vote  counted.  Should  the  certificate 
of  the  governor  be  withheld  arbitrarily,  by  accident,  or  be  falsely 
given  to  another,  it  could  not  defeat  the  express  requirement  of  tho 
Constitution  that  the  certificate  from  the  electors  appointed  by  the 
States  shall  be  opened  and  the  votes  therein  counted. 

As  before  stated,  the  only  issue  that  can  be  tried  is  that  the  cer 
tificate  is  from  the  electors.  The  only  certificate  which  the  Pres 
ident  of  the  Senate  is  bound  to  receive,  and  to  open  in  the  pres 
ence  of  the  two  Houses,  is  from  the  electors,  a  fact  which  he  has 
a  right,  I  think,  to  ascertain  in  any  way  that  he  can  ;  but  as  this  law 
requires  him  to  open  all  certificates  purporting  to  contain  electoral 
votes  and  he  acts  under  it,  it  is  the  duty  of  this  Commision  to  ascer 
tain  which  certificate  comes  from  the  electors  of  the  State,  and  when 
that  is  done  the  duty  is  performed,  aud  the  votes  contained  therein 
must  be  counted.  The  certificate  of  the  governor  is  no  part  of  the 
appointment  of  an  elector,  nor  is  its  issue  in  any  sense  the  act  of  the 
State.  It  is  issued  by  virtue  of  an  act  of  Congress,  and  Congress 
might  have  devolved  the  duty  upon  the  secretary  of  state,  the  judge 
of  the  district  court  of  tho  United  States,  or  upon  any  other  officer 
it  chose  to  select.  The  certificate  of  the  governor  is  the  creation  of 
the  act  of  Congress,  intended  as  a  convenient  form  of  evidence,  but 
is  not  made  conclusive,  and  could  not  be,  for  Congress  has  no  power 
to  make  it  a  condition-precedent  of  the  right  of  an  elector  appointed 
under  the  laws  of  a  State  that  he  shall  obtain  a  certificate  from  the 


governor  before  exercising  his  right  to  vote.  Such  a  provision  would 
clearly  be  an  infringement  of  the  Constitution  by  attaching  a  new 
condition  to  the  office  of  an  elector.  If  it  shall  be  made  to  appear 
that  the  certificate  of  the  governor  has  been  given  to  an  elector  who 
was  not  appointed  in  the  manner  prescribed  by  the  Legislature  of 
the  State,  the  certificate  is  null  and  void,  and  is  to  be  utterly  disre 
garded.  The  certificate  of  the  governor  issued  under  the  act  of  Con 
gress  is  not  the  act  of  the  State.  The  return  made  by  the  canvass- 
ing-officers  of  the  State  is  the  act  of  the  State  and  cannot  be  ques 
tioned. 

How  then  shall  we  know  whether  the  electors  executing  the  cer 
tificate  No.  1  in  this  case  were  the  electors  for  the  State  of  Florida  ? 
I  answer,  first,  by  the  certificate  of  the  governor,  which  is  prima  fade 
and  sufficient  evidence,  if  unimpeached,  but  if  impeached  then  by 
reference  to  the  declarations  of  those  officers,  who,  by  the  laws  of 
Florida,  were  authorized  to  ascertain  and  certify  who  have  been  ap 
pointed  electors  ;  and  when  we  have  found  such  declarations  we  are 
at  the  end  of  the  inquiry,  and  must  accept  them  as  final  and  con 
clusive. 

There  are  some  things  in  government  that  must  depend  upon  forms, 
and  some  kinds  of  evidence  that  must  be  received  as  conclusive.  In 
those  particulars  in  which  the  Government  deals  with  States  as  such, 
the  forms  of  expression  and  action  adopted  by  the  States  must  be  ac 
cepted  as  final. 

It  was  intended  that  the  States,  in  the  appointment  of  electors, 
should  be  absolutely  independent  of  each  other  and  of  the  National 
Government.  . 

The  action  of  the  State  in  the  appointment  of  electors  must  be  de 
clared  by  officers  designated  by  the  Legislature  for  that  purpose,  and 
when  they  have  declared  it,  their  declaration  must  not  only  be  ac 
cepted  by  Congress  as  final  and  unquestionable,  but  be  final  and  con 
clusive  as  to'  themselves  and  to  the  State;  and  they  cannot  after 
ward,  under  the  influence  of  temptation,  fear,  or  any  other  motive, 
reconsider  their  findings  and  determination. 

If  it  were  attempted  by  an  act  of  Congress  to  take  from  the  State 
the  determination  and  ascertainment  of  the  persons  appointed  elect 
ors  in  tho  manner  prescribed  by  the  Legislature,  it  would  be  clearly 
unconstitutional. 

The  right  of  a  State  to  appoint  electors  carries  with  it  necessarily 
the  right  to  ascertain  in  form  of  law  who  have  been  appointed. 
The  power  of  the  State  to  appoint  would  not  be  complete  without 
the  power  to  declare  finally  who  have  been  appointed.  If  Congress 
may  overrule  the  State  authorities  and  decide  who  were  elected  by 
the  people,  the  independence  of  the  States  in  the  appointment  of 
electors  would  be  lost  and  their  power  amount  to  little  more  than 
the  right  to  nominate  a  number  of  candidates  from  whom  Congress 
may  select.  It  is  the  peremptory  duty  of  the  governor  to  give  the 
certificate  to  those  persons  who  have  been  decided  in  the  manner 
prescribed  by  the  law  of  the  State  to  have  been  appointed  electors  ; 
and  should  he  give  the  certificate  to  other  persons  it  would  be  fraud 
ulent  and  void. 

It  is  provided  in  the  Constitution  that  the  votes  of  the  electors 
shall  all  be  cast  on  the  same  day,  and  the  history  of  the  clause  shows 
that  great  importance  was  attached  to  it. 

The  purpose  was  to  prevent  fraud,  to  prevent  the  electors  in  one 
State  from  waiting  until  the  other  States  had  voted  and  then  so  vote 
as  to  change  or  control  the  result. 

How  completely  would  this  purpose  be  defeated  if  it  were  in  the 
power  of  a  State,  after  the  electors  in  all  the  States  had  voted,  to  have 
a  new  count  of  votes  in  that  State,  so  as  to  invalidate  the  votes  of  the 
electors  and  give  effect  to  the  votee  of  another  set  who  at  the  time  of 
casting  their  votes  had  no  title  in  law  and  were  mere  pretenders. 
This  would  present  the  greatest  opportunities  and  temptations  to 
fraud,  and  reverse  the  theory  aud  purpose  of  the  framers  of  tho  Con 
stitution,  who  intended  thatthe  result  of  apresidential  election  should 
be  settled  irrevocably  in  one  day,  and  that  no  opportunity  should  be 
left  for  intrigue  and  cabal  after  that  time. 

When  electors  have  cast  their  votes  on  the  Gth  day  of  December, 
aud  have  sealed  them  up  aud  transmitted  them  to  the  President  of 
the  Senate,  they  nrefitnctus  officlo.  Their  office  has  expired  and  their 
functions  are  gone  forever.  The  power  of  the  State  in  the  election 
of  a  President  is  then  exhausted,  and  the  jurisdiction  of  the  State, 
which  was  absolute  before,  is  thereafter  absolutely  extinguished.  It 
is  not  left  in  the  power  of  a  State  to  undo  or  impair  what  she  has 
done  by  subsequently  declaring  that  the  electors  who  had  voted  had 
not  been  appointed,  and  that  by  a  recount  of  the  votes,  real  or  pre 
tended,  other  persons  were  shown  to  have  been  appointed.  Whether 
such  subsequent  action  on  the  part  of  the  State  is  had  through  the 
courts,  or  by  the  Legislature,  or  by  both  combined,  can  make  no  dif 
ference.  Either  way,  or  any  way,  such  action,  if  allowed  to  prevail, 
would  be  fatal  to  our  system  of  government.  The  certainty  of  po 
litical  action  requires  that  an  act  once  performed  in  the  election  of  a 
President  shall  bo  irrevocable. 

If  it  be  conceded  that  an  elector  at  the  time  of  the  election 
in  November,  and  at  the  time  he  voted  as  elector  in  December,  held 
an  office  of  trust  under  the  United  States,  and  was  therefore  in 
eligible,  thoquostion  arises,  what  effect  would  it  have  upon  his  vote  ? 
Having  been  declared  elected  by  the  State  returning  officers,  and 
having  received  the  certificate  of  tho  governor  as  an  elector,  he  cer 
tainly  had  the  color  of  office  and  was  an  officer  ds  facto. 


ELECTORAL  COMMISSION. 


197 


The  act  of  an  officer  de  facto  is  held  to  be  valid  so  far  as  it  affects 
the  rights  of  any  other  person  than  himself.  If  his  ineligibility  had 
subsequently  been  established  by  a  court  of  competent  authority, 
upon  a  writ  of  quo  warranto,  it  could  not  affect  the  validity  of  his 
vote. 

The  iueligibility  of  a  person  holding  an  office  of  trust  or  profit 
under  the  United  States  to  be  appointed  an  elector  is  not  self-exe 
cuting  and  remains  in  abeyance  until  laws  are  pa&sed  providing 
method  and  process  for  ascertaining  judicially  such  ineligibility. 

Where  the  action  of  a  State  Legislature  is  provided  for  or  required 
by  the  Constitution  of  the  United  States,  such  action  when  per 
formed  cannot  be  revoked. 

Each  State  is  entitled  to  two  Senators,  to  be  chosen  by  the  Legisla 
ture  thereof. 

When  a  Senator  has  been  chosen  in  the  manner  prescribed  by  law 
the  power  of  the  Legislature  is  exhausted,  and  it  cannot  at  a  subse 
quent  time,  when  becoming  dissatisfied  with  its  choice  annul  the  first 
election  and  enter  into  a  new  one,  nor  can  it  accomplish  the  same  pur 
pose  by  resolving  that  the  votes  at  the  first  election  had  not  been 
properly  counted  and  thereupon  order  a  new  election  or  a  new  count. 

Again,  the  Constitution  provides  that  amendments  to  it  may  be 
submitted  by  two- thirds  ot  each  House  of  Congress  to  the  Legisla 
tures  of  the  several  States  for  their  ratification.  When  the  ratifica 
tion  of  an  amendment  has  been  made  by  a  Legislature  it  cannot  be 
afterward  reconsidered  and  undone.  The  Legislatures  of  New  York 
and  Ohio  attempted  by  f«  rmal  votes  to  reconsider  the  ratifications  be 
fore  given  to  the  fifteenth  amendment,  but  their  action  was  generally 
considered  as  a  nullity  by  the  legal  mind  of  the  United  States. 

Each  House  shall  be  the  judge  of  the  elections,  returns,  and  qualifications  of  its 
own  members. 

Under  this  power  the  House  may  go  behind  the  returns  and  count 
the  actual  number  of  votes  received  by  a  member,  and  the  Senate 
may  go  behind  the  certificate  of  the  governor  and  inquire  whether  a 
Senator  received  the  number  of  legislative  votes  necessary  to  elect, 
whether  he  has  the  qualifications  required  by  the  Constitution,  or 
was  guilty  of  bribery  or  other  misconduct.  And  here  it  is  claimed 
that  the  two  Houses,  or  this  Commission  in  their  stead,  in  the  absence 
of  any  constitutional  provision  have  the  right  to  inquire  into  the 
election,  returns,  and  qualifications  of  electors;  that  together  they 
have  the  same  power  over  electors  that  each  House  has  over  its  own 
members.  How  monstrous  is  this  assumption  when  we  remember  that 
the  great  effort  by  the  framers  of  the  Constitution  was  to  make  the 
Executive  independent  of  the  Legislative,  and  to  place  the  election  of  a 
President  beyond  the  reach  or  control  of  Congress.  The  electors  were 
to  be  appointed  by  the  States,  in  such  manner  as  the  Legislatures  might 
direct,  and  were  thus  removed  from  Congress  as  far  as  possible.  The 
only  mention  of  Congress  in  connection  with  the  subject  is,  that  the 
President  of  the  Senate  shall  open  the  certificates  in  the  presence  of 
the  two  Houses ;  and  from  that  is  inferred  the  vast  power  to  judge  of 
the  election,  returns,  and  qualifications  of  electors. 

The  right  of  each  House  to  judge  of  the  election,  return,  and  quali 
fication  of  its  members  was  not  left  to  implication  but  was  expressly 
conferred  notwithstanding  it  was  so  necessary  and  proper  that  each 
House  should  have  that  power.  And  can  it  be  supposed  that  a  simi 
lar  power  in  regard  to  electors,  so  important  and  controlling  in  the 
choice  of  a  President,  would  be  left  to  implication  had  it  been  intended 
that  the  two  House  should  have  it?  Not  only  is  the  power  not  given 
but  there  is  110  provision  from  which  it  can  be  implied  and  the  history 
of  the  Constitution  shows  conclusively  that  the  purpose  was  to  put 
the  election  of  a  President  beyond  the  control  of  Congress.  The  tenth 
article  of  amendment  to  the  Constitution  declares  that — 

The  powers  not  delegated  to  the  United  States  by  the  Constitution,  nor  prohibited 
by  it  to  the  States,  are  reserved  to  the  States  respectively,  or  to  the  people. 

The  rule  of  construction  adopted  from  the  first  is  that  the  Govern 
ment  of  the  United  States  possesses  no  powers  except  those  that  are 
expressly  conferred  or  such  as  are  necessary  to  the  due  execution 
of  those  expressly  conferred.  Not  only  is  the  power  on  the  part  of 
the  two  Houses  to  judge  of  the  election,  returns,  and  qualification 
of  electors  not  expressly  conferred,  and  no  provision  from  which 
it  can  be  implied,  but  to  infer  it  would  be  to  violate  the  purpose  en 
tertained  by  the  framers  of  the  Constitution,  and  so  of  ten  expressed 
by  them,  to  preserve  the  independence  of  the  executive  department 
from  the  control  and  absorption  of  the  legislative. 

As  the  appointment  of  electors  is  to  be  made  by  the  States  in  such 
manner  as  the  Legislatures  may  provide,  it  is  clearly  within  the  power 
of  the  States  to  provide  for  contesting  the  election  of  electors  by  the 
people,  or  to  correct  any  errors  or  frauds  in  the  return  or  canvass  of 
the  vote,  provided  such  contest  or  correction  is  made  before  the  6th  day 
of  December,  when  the  votes  of  the  electors  are  to  be  cast ;  but,  be 
cause  the  States  have  failed  to  make  provision  for  such  contest  or  the 
correction  of  frauds  or  errors,  it  is  absurd  to  argue  that  the  two  Houses 
of  Congress  or  this  Commission  may  step  in  and  do  that  which  the 
States  had  power  but  failed  to  do.  The  powers  of  the  two  Houses 
upon  this  or  any  other  subject  are  not  made  to  depend  upon  the  fail 
ure  of  States  to  exercise  their  constitutional  power,  but  depend  upon 
the  positive  or  implied  grants  of  power  in  the  Constitution. 

If  the  States  hav«  a  distinct  and  clearly  defined  right  expressed  in 
the  Constitution,  it  is  in  their  perfect  freedom  from  all  outside  inter 
ference  in  the  appointment  of  electors.  In  this  they  are  as  free  and 


independent  as  in  the  choice  of  a  governor  or  any  State  officer.  In 
making  an  application  of  the  principles  of  law  to  this  case,  certain 
great  purposes  should  be  kept  in  view : 

First.  That  the  process  of  electing  a  President  shall  be  progressive, 
so  that  when  the  term  of  one  expires  there  shall  be  another  ready  to 
take  his  place  and  no  interregnum  occur ;  and  to  cut  off  every  method 
or  purpose  to  retard  the  process  and  defeat  the  great  result. 

Second.  That  it  was  a  leading  purpose  of  the  framera  of  the  Con 
stitution  to  preserve  the  independence  of  each  department  of  Gov 
ernment,  and  especially  to  protect  and  preserve  the  independence 
of  the  Executive  as  against  the  absorbing  tendencies  of  the  legisla 
tive  department. 

Third.  The  judicial  power  of  the  Government  is  vested  entirely  in 
the  courts  except  where  the  same  was  expressly  given,  or  by  neces 
sary  implication,  to  another  department,  as  where  each  House  is  au 
thorized  to  judge  of  the  election,  returns,  and  qualification  of  its  own 
members. 

In  the  organization  of  government  the  certainty  of  political  action 
is  an  indispensable  element,  so  that  every  step  when  taken  shall  be 
irrevocable. 

After  the  electors  have  been  appointed  by  the  States,  and  have 
voted  on  the  day  fixed  by  law,  and  their  votes  have  been  sealed 
and  transmitted  to  the  President  of  the  Senate,  the  States,  as  such, 
have  no  longer  any  connection  with  the  matter.  They  cannot  recon 
sider  their  action,  appoint  new  electors  and  vote  for  new  candidates, 
nor  can  they  accomplish  the  same  things  by  declaring  that  although 
their  electors  were  appointed  in  due  form  of  law,  yet  in  fact  the  ap 
pointment  was  procured  by  fraud  or  by  a  mistake  of  law  or  fact  on 
the  part  of  some  of  the  State  officers  while  in  the  process  of  appoint 
ment.  The  appointment  of  electors,  when  once  made,  must,  for  the 
very  highest  reasons  of  public  policy,  be  irrevocable ;  for  if  a  State 
should  have  the  power,  after  the  votes  have  been  cast  honestly,  to 
undo  a  fraud,  or  correct  a  mistake,  it  is  manifest  that  parties  or  con 
spirators,  under  that  cover,  might  seek  the  perpetration  of  fraud  to 
change  or  control  the  result  of  presidential  elections. 

For  the  reasons  given  I  believe  that  the  votes  contained  in  certifi 
cate  No.  1  must  be  counted,  and  that  the  evidence  offered  to  impeach 
them  ought  not  to  be  received.  The  electors  therein  named  were  cer- 
tified  by  M.  L.  Stearns,  the  lawful  governor  of  the  State  at  the  time, 
and  their  election  by  the  people  was  declared  in  due  form  of  law  by 
the  officers  of  the  State  expressly  authorized  by  the  laws  of  the  State 
to  perform  that  duty.  That  a  new  governor,  a  new  Legislature,  and 
a  new  returning  board,  coming  into  office  after  the  6th  of  December 
and  after  the  jurisdiction  of  the  State  had  passed  away,  with  or  with 
out  the  aid  of  the  courts  can  recount  the  vote,  or  in  any  way  change 
the  result,  is  a  doctrine  most  dangerous  and  absurd. 


Z.OTJISIANA. 

The  electoral  votes  of  Louisiana  being  under  consideration — 

Mr.  Commissioner  MORTON  said: 

Mr.  PRESIDENT  :  It  is  not  my  purpose  to  go  over  the  ground  which 
was  discussed  and  decided  in  the  Florida  case.  An  offer  is  made  to 
impeach  the  decision  of  the  returning  officers  of  Louisiana  by  show 
ing  that  they  threw  out  votes  in  violation  of  law ;  that  their  rul 
ings  were  arbitrary  and  unjust,  and  that  in  point  of  fact  the  Til- 
den  electors  were  appointed.  The  question  as  to  the  right  to  go 
behind  the  returns  of  the  proper  officers  and  inquire  what  was  the 
actual  result  of  an  election  in  the  State,  and  to  examine  into  the 
conduct  of  such  officers  to  find  whether  they  acted  within  their  juris 
diction,  or  upon  sufficient  evidence,  was  fully  settled  in  the  nega 
tive  in  the  Florida  case.  Without  pretending  that  it  is  legitimate  in 
this  case — for  I  know  it  is  not — to  discuss  the  actual  condition  of 
things  in  Louisiana,  yet  I  wish  here  to  repel  the  charge  of  fraud 
which  has  been  so  persistently  made  by  the  objectors  and  counsel 
who  appeared  in  favor  of  the  Tilden  electors. 

If  I  am  correctly  advised,  I  believe  that  if  we  were  to  go  behind 
the  action  of  the  returning  board  of  Louisiana  we  should  find  that 
action  based  upon  sufficient  evidence  and  that  the  pretended  ma 
jorities  for  the  Tilden  electors  in  many  parishes  had  been  obtained 
by  intimidation  produced  by  murder,  violence,  and  the  most  dread 
ful  crimes.  It  is  easy  to  talk  about  what  could  be  proven  in  the  way 
of  fraud  when  it  is  pretty  well  understood  that  there  will  be  no  op 
portunity  or  time  to  make  the  proof,  and  to  bring  the  parties  making 
the  charge  to  the  test.  During  the  last  ten  years  Louisiana  has  been 
the  theater  of  the  most  fearful  outrages  recorded  in  the  annals  of 
our  country.  According  to  the  testimony  taken  by  investigating 
committees,  and  collected  by  General  Sheridan,  thousands  of  men 
have  been  killed  and  wounded  on  account  of  their  opinions.  The 
most  terrible  proscriptions  have  been  practiced,  and  cruelties  in 
flicted,  compared  to  which  the  warfare  of  the  American  savage  is 
civilized  and  humane. 

But  we  are  here  to  discuss  questions  of  law,  and  I  refer  to  these 
features  in  the  recent  history  of  Louisiana  only  to  repel  the  constant 
charge  of  fraud  and  to  rebut  the  allegations  that  resistance  is  made 
to  going  behind  the  returns  and  entering  into  the  details  of  the  Lou 
isiana  election  for  fear  of  the  proof  of  these  frauds.  The  appoint 
ment  of  the  Hayes  electors  was  duly  certified  by  the  governor  of  the 
State,  and  their  appointment  by  the  votes  of  the  people  was  declared 


198 


ELECTORAL  COMMISSION. 


in  due  form  of  law  l»y  the  proper  returning  officers  of  the  State,  who 
alonft  were  duly  authorized  to  canvaas  and  determine  the  persons  ap 
pointed  electors  by  the  votes  of  the  people. 

To  investigate  the  question  whether  these  officers  exceeded  their 
jurisdiction  or  acted  without  proper  evidence  would  concede  the  whole 
ground,  would  overturn  the  decision  made  in  the  Florida  case,  and 
lead  necessarily  to  an  examination  of  the  details  of  the  election  in 
every  parish  in  Louisiana.  If  the  returning  officers  were  author 
ized  to  canvass  the  votes  and  make  the  declaration  of  the  persons 
elected,  we  are  concerned  only  with  that  declaration  and  not  with 
the  grounds  upon  which  it  was  made.  The  declaration  made  by  these 
officers  is  the  act  and  declaration  of  the  State",  and  we  cannot,  under 
the  brief  command  of  the  Constitution  "and  the  votes  shall  then  be 
counted,"  examine  into  the  evidence  upon  which  it  was  made.  But 
to  consider  this  demand  in  a  practical  point  of  view,  we  know  very 
well  that  such  an  investigation  could  not  be  made  between  this  and 
the  4th  day  of  March.  It  would  take  weeks  and  perhaps  months; 
and  to  enter  upon  it  would  be  to  defeat  the  presidential  election  alto 
gether,  create  an  interregnum,  and  bring  confusion,  perhaps  anarchy, 
into  the  Government. 

The  length  of  the  investigations  which  would  have  to  be  made,  if 
we  went  behind  the  returns  of  the  State  officers,  is  an  overwhelming 
argument  against  the  soundness  of  the  doctrine  contended  for.  Tak 
ing  the  four  disputed  States,  it  is  not  possible  that  the  investigations 
could  be  made  in  months,  hardly  this  year ;  and  it  is  claimed  that  all 
this  shall  be  done  under  the  brief  command  in  the  Constitution,  "and 
the  votes  shall  then  be  counted."  Never  was  so  monstrous  a  burden 
suspended  upon  so  small  a  peg.  It  cannot  be  that  the  framers  of  the 
Constitution  intended  to  authorize  the  two  Houses  of  Congress,  when 
the  votes  for  President  are  counted,  to  enter  upon  investigations  in 
any  or  all  the  States  which,  by  means  of  their  length  and  complexity, 
would  enable  cunning  conspirators  to  defeat  the  result  of  an  election 
every  time. 

If  it  were  intended  by  the  fathers  of  the  Republic  to  plant  a  rock 
in  the  straits  directly  in  the  path  of  the  ship  of  state,  and  upon  which  she 
might  be  wrecked  at  any  time  by  the  carelessness  or  wickedness  of 
the  crew,  it  could  not  be  done  more  effectually  thau  by  authorizing 
the  two  Houses  of  Congress  to  enter  upon  investigations  almost  in 
terminable  in  their  character  and  which  through'  their  magnitude  and 
nature  could  be  but  imperfecty  made,  no  difference  how  long  the 
time  consumed. 

But  it  is  alleged  that  the  returning  board  of  Louisiana  was  not  a 
legal  body,  not  boingcomposed  according  to  the  law  of  the  State.  Sec 
tion  2  of  the  act  of  1872,  which  is  the  latest  law  upon  the  subject,  con 
tains  the  following  provision : 

That  five  persona,  to  be  elected  by  tho  senate  fi-oin  all  political  parties,  shall  Tje 
the  returning  oliicers  for  all  elections  iu  the  Slate,  a  majority  of  whom  shall  con 
stitute  a  quorum  and  have  power  to  make  tho  returns  of  all  elections.  In  ease  of 
any  vacancy  by  death,  resignation,  or  otherwise,  by  either  of  the  board,  then  the 
vacancy  shall  be  tilled  by  the  re.sidue  of  tho  board  of  returning  officers.  The  re 
turning  officers  shall,  after  each  election,  before  entering  on  their  duties,  take 
and  subscribe  to  the  following  oath  before  a  judge  of  the  supreme  or  any  district 
court, '&o. 

It  is  charged  that  the  board  at  the  time  it  made  the  canvass 
and  declaration  of  votes  had  but  four  members  and  was  not,  there 
fore,  a  legal  body.  There  is  nothing  in  this  objection.  The  law 
expressly  provides  that  a  majority  of  the  five  persons  "  shall  con 
stitute  a  quorum,  and  have  power  to  make  the  returns  of  all  elec 
tions."  Three  would  constitute  a  majority  and  be  sufficient  by  the 
express  terms  of  the  statute  "to  make  the* returns  of  all  elections." 
The  law  provides  that  the  Supreme  Court  shall  consist  of  nine  j  udges, 
but  it  will  not  be  asserted  that  the  existence  of  even  three  vacancies 
in  the  court  would  invalidate  its  character  as  a  legal  body.  In  every 
deliberative  body  which  is  required  to  have  a  quorum  whether  of  a 
majority  or  any  other  number  its  legal  character  is  not  destroyed  so 
long  as  that  quorum  is  maintained.  The  very  object  of  having  a 
quorum  with  which  any  deliberative  body  may  do  business  ia  that 
its  legality  and  capacity  for  business  shall  not  be  destroyed  by  va 
cancies  or  the  absence  of  members  so  long  as  the  number  fixed  for  a 
quorum  is  maintained.  It  is  provided  that  the  Senate  of  the  United 
States  shall  consist  of  two  Senators  from  each  State,  yet  the  exist- 
tence  of  a  dozen  vacancies  would  not  impair  the  legal  character  of 
the  body. 

But  it  is  argued  that  this  rule  Avill  not  apply  in  this  case  because 
the  remaining  members  of  the  board  have  the  power  lo  fill  vacan 
cies  and  it  is  their  duty  to  do  so.  While  it  may  be  their  duty  to  do  so 
if  they  can  agree  upon  the  person,  yet  their  failure  to  perform  it 
could  no  more  impair  the  legality  of  the  body  while  a  quorum  re 
mains  than  if  the  power  to  fill  the  vacancies  belonged  to  the  gov 
ernor  or  the  Legislature.  It  is  the  duty  of  the  majority  to  canvass 
and  determine  the  result  of  an  election  when  the  vote's  have  been 
placed  iu  their  possession,  and  the  failure  to  perform  the  duty  of  fill 
ing  a  vacancy  could  not  discharge  them  from  the  performance  of  the 
other  duty  to  canvass  and  determine  the  result  of  an  election.  In 
point  of  fact  they  may  have  been  unable  to  agree  upon  the  person 
or  have  failed  to  fill  the  vacancy  from  other  cause  than  a  willful  dis 
regard  of  duty,  but  whether  that  is  so  or  not  is  wholly  immaterial. 

But  it  is  said  that  the  board  was  illegal  because  it  was  not  com 
posed  of  men  from  all  political  parties  as  directed  by  the  statute. 
The  statute  in  that  particular  is  merely  directory  and  is  incapable  of 
rigid  enforcement.  How  many  parties  or  factions  there  were  in  the 


State  we  are  not  advised,  although  we  know  as  a  matter  of  general 
history  that  there  were  two  principal  parties,  and  the  injunction  to 
make  up  the  board  from  all  political  parties  is  one  which  rests  upon 
the  senate  of  the  State  and  not  upon  the  board  itself,  and  if  tho  m-n- 
ate  in  electing  members  of  the  board  disregarded  the  injunction  there 
is  no  power  lodged  anywhere  in  the  government  of  the  State  or  in 
the  courts  to  correct  the  error. 

The  distinction  between  mandatory  and  directory  statutes  is  very 
broad,  and  this  one  clearly  belongs  to  the  latter  class.  It  is  like  the 
injunction  in  the  statute  creating  the  office  of  attorney-general,  that 
the  persons  selected  for  that  office  "  shall  be  learned  in  the  law."  The 
legality  of  the  appointment  of  an  attorney-general  could  not  be  ques 
tioned  and  the  validity  of  his  acts  set  aside  by  the  allegation  that  he 
was  not  learned  iu  the  law  as  required  by  the  statute.  The  injunction, 
that  the  senate  in  creating  this  board  should  take  the  members  from 
all  political  parties  should  have  been  observed  if  it  were  possible, 
but  the  pretense  that  the  validity  of  the  acts  of  the  board  would  be 
affected  by  proof  that  the  senate  had  failed  to  observe  the  injunction 
is  quite  absurd. 

Although  the  speeches  have  been  very  lengthy  and  able  and  the 
objections  filed  against  the  validity  of  the  action  of  the  returning 
board  voluminous  and  elaborate,  the  whole  question  comes  down 
to  this  simple  proposition :  Is  it  competent  for  the  two  Houses  of 
Congress,  or  for  this  Commission  acting  in  their  stead,  when  count 
ing  the  electoral  votes  for  President  to  go  behind  the  decision  made 
by  the  officers  appointed  by  the  Legislature  of  the  State  for  the  pur 
pose  of  canvassing  and  determining  the  result  of  the  election,  to  in 
quire  what  was  the  number  of  votes  cast  for  one  set  of  candidates 
or  for  the  other,  whether  the  election  was  fairly  conducted  and 
whether  the  officers  appoint. ed  by  the  State  to  conduct  the  election 
or  to  determine  its  results  acted  within  the  limits  of  the  law  or  upon 
sufficient  evidence.  A  majority  of  this  Commission  decided  in  the 
Florida  case  that  we  had  no  such  power,  and  I  believe  that  time  and 
the  good  sense  of  tho  American  people  will  justify  the  decision  in 
every  respect. 


OREGON. 

^•ne  electoral  votes  of  Oregon  boingundor  consideration- 
Mr.  Commissioner  MORTON  said: 

Mr.  PRESIDENT  :  At  tho  late  presidential  election  in  Oregon  Dr. 
Watts  was  a  candidate  for  elector  on  tho  republican  ticket  and  re 
ceived  something  more  than  one  thousand  majority  over  his  highest 
democratic  competitor.  He  was  at  tho  time  of  the  November  election 
postmaster  in  the  little  town  of  LaFayette,  in  which  he  lived.  This 
office  he  resigned  on  the  I'.'th  of  November  and  on  the  next  day  a 
special  agent  of  the  Post-Office  Department  took  possession  of  the 
office  and  removed  it  to  another  building,  and  his  resignation  was 
accepted  by  the  Postmaster-General.  On  the  4th  day  of  December 
the  secretary  of  stf*  of  Oregon,  in  pursuance  of  law,  canvassed  the 
votes  for  president, *  electors  in  the  presence  of  the  governor  and 
made  out  a  tabulated  statement  of  the  returns  from  the  various 
counties,  which  he  certified  under  the  seal  of  the  State  as  being  a 
complete  and  lawful  canvass,  showing  that  Dr.  Watts  and  Messrs. 
Odell  and  Cartwright  had  been  appointed  electors  *'or  the  State  of 
Oregon. 

On  the  morning  of  the  6th  of  December  the  governor  issued  three  cer 
tificates,  in  each  of  which  he  stated  that  Messrs.  Odell  and  Cartwright 
and  one  E.  A.  Cronin,  were  the  three  eligible  persons  who  had  re 
ceived  the  highest  number  of  votes  and  were  duly  appointed  electors. 
These  certificates  he  placed  in  the  hands  of  Cronin,  who  refused  to 
deliver  them  to  Odell  and  Cartwright  but  kept  them  in  his  posses 
sion  and  after  professing  to  read  their  contents,  or  a  part  of  them, 
in  the  hearing  of  Odell,  Cartwright,  and  Watts,  retired  to  another 
part  of  the  room  in  which  they  were  assembled  arid  appointed  two 
persons  to  act  as  electors  instead  of  Odell  and  Cartwright,  and  assum 
ing  to  act  as  electors  the  three  voted,  Cronin  for  Tilden  and  the 
other  two  for  Hayes.  When  Odell  and  Cartwright  met  at  twelve 
o'clock  on  the  6th  of  December,  Dr.  Watts  resigned  the  office  of 
elector  and  was  immediately  thereafter  elected  by  them  to  fill  the 
vacancy  in  the  college  of  electors,  and  the  three  then  cast  their  votes 
for  Hayes  for  President  and  Wheeler  for  Vice-President. 

The  governor  refused  to  give  the  certificate  of  election  to  Watts  for 
the  alleged  reason  that  Watts  was  ineligible  to  be  voted  for  on  the 
7th  of  November  because  he  was  a  deputy  postmaster,  and  gave  it  to 
Cronin  upon  the  ground  that  he  had  received  the  next  highest  num 
ber  of  votes.  He  assumed  that  he  had  judicial  power  to  judge  as  to 
Watts's  eligibility  and  derided  that  he  was  ineligible  at  the  time  of 
the  election  and  that  his  competitor  having  the  next  highest  number 
of  votes  was  elected.  This  assumption  on  the  part  of  the  governor 
was  entirely  erroneous.  His  business  under  the  statute  of  the  United 
States  was  simply  to  give  the  certificate  of  appointment  as  electors 
to  those  persons  who  had  been  declared  by  the  proper  returning  offi 
cers  of  the  State  to  have  been  appointed.  He  had  no  more  power  to 
pass  upon  the  question  of  the  eligibility  of  an  elector  and  refuse  to 
give  a  certificate  upon  that  account  than  he  had  to  pass  upon  the  eli 
gibility  of  a  person  who  had  been  elected  as  a  member  of  Congress. 
His  duty  was  simply  ministerial.  In  the  next  place  if  he  had  the 
judicial  power  and  tho  right  to  pass  upon  the  question  his  decision 


ELECTORAL  COMMISSION. 


199 


was  directly  in  conflict  with  the  law.  The  meaning  of  the  Constitu 
tion  is  that  an  elector  shall  not  be  a  member  of  Congress  or  an  oflicer 
•under  the  United  States  at  the  time  he  takes  the  office  and  casts  his 
vote.  If  on  the  Gth  of  December,  when  the  electors  voted,  Dr.  Watts 
was  eligible,  having  before  resigned  his  office  as  postmaster,  it  was 
of  no  importance  that  he  had  been  postmaster  when  voted  for  in 
November.  This  question  has  often  been  decided,  and  it  has  always 
been  held  that  members  of  Congress  who  were  ineligible  from  any 
cause — from  want  of  age,  of  citizenship  or  disability  under  the  four 
teenth  amendment,  at  the  time  of  their  election  by  the  people,  or  by 
the  Legislature — but  whose  disabilities  were  removed  at  the  time  the 
term  of  office  began  and  they  took  their  seats,  were  eligible  and  their 
iueligibility  on  the  day  of  the  election  was  of  no  importance.  But 
whatever  may  be  the  law  upon  this  subject  it  became  unimportant 
from  the  fact  that  on  the  6th  day  of  December  Watts  resigned  his 
office  of  elector  to  the  college  of  electors  and  was  immediately  re- 
elected  to  fill  the  vacancy,  at  a  time  when  he  was  unquestionably 
eligible.  The  power  of  the  college  of  electors  to  fill  the  vacancy 
occasioned  by  his  resignation  appears  from  the  following  provision 
of  the  Oregon  statute  :  . 

SEC.  59.  The  electors  of  President  and  Vice-President  shall  convene  at  the  seat 
of  government ou  the  first  Wednesday  of  December  next  after  their  election,  at  the 
hour  of  twelve  of  the  clock  at  noon  of  that  day,  and  if  there  shall  be  ajy  vacancy 
in  the  office  of  au  elector,  occasioned  by  death,  refusal  to  act,  neglect  to  attend,  or 
otherwise,  the  electors  present  shall  immediately  proceed  to  fill,  by  viva,  voct  and 
plurality  of  votes,  such  vacancy  iu  the  electoral  college,  and  wheu  all  the  electors 
sLall  appear,  or  the  vacancies,  if  any,  shall  have  been  tilled  as  above  provided, 
such  electors  shall  proceed  to  perform  the  duties  required  of  them  by  the  Constitu 
tion  and  laws  of  the  United  States. 

By  this  statute  the  college  of  electors  is  expressly  authorized  to  fill 
"  any  vacancy  in  the  office  of  an  elector,  occasioned  by  death,  refusal 
to  act,  uegleet  to  attend,  or  otherwise."  So  that  they  could  fill  a 
vacancy  arising  from  non-election  as  well  as  from  death  or  resigna 
tion.  The  object  of  the  statute  is  remedial  and  should  be  liberally 
construed  so  as  to  gi  ve  the  State  her  full  voice  in  the  election  of  a  Presi 
dent  and  Vice-President.  In  any  view  of  the  case,  whether  the 
vacancy  in  the  college  of  electors  arose  from  non-election,  by  reason 
of  Watts'siueligibihty  on  the  7th  of  November,  or  by  reason  of  his 
resignation  on  the  Oth  of  December,  the  college  of  electors  had  the 
right  to  fill  it.  The  doctrine  upon  which  the  governor  assumed  to 
act  that  where  a  candidate  is  ineligible  the  person  having  the  next 
highest  number  of  votes  is  elected  is  in  conflict  with  the  general  cur 
rent  of  judicial  decisions  in  the  United  States.  Each  House  of  Con 
gress  after  the  fullest  deliberation  has  expressly  decided  tha.t  in  such 
a  case  the  minority  candidate  is  not  elected  and  that  the  election  is  a 
failure. 

In  England  it  has  been  held  that  where  it  was  known  to  the  voters 
that  the  majority  candidate  was  ineligible  at  the  time  they  voted  for 
him,  the  minority  candidate  was  elected.  But  these  decisions  were 
put  upon  the  express  ground  of  actual  knowledge  upon  the  part  of 
the  voters  of  the  iueligibility,  and  that  the  voters  not  only  kuew 
the  fact  which  in  law  made  the  candidate  ineligible,  but  kuew  also 
that  the  fact  did  make  him  ineligible  under  the  law.  The  English 
courts  have  held  that  iu  such  a  case  the  voters  are  not  presumed  to 
know  the  law,  but  it  must  be  shown  affirmatively  that  they  knew  not 
only  the  fact  which  made  the  candidate  ineligible  but  also  knew  that 
under  the  law  the  fact  made  him  ineligible.  The  statute  of  Oregon 
provides  in  section  60  that — 

The  votes  for  the  electors  shall  be  given,  received,  returned,  and  canvassed  as  the 
same  are  given,  returned,  and  canvassed  for  members  of  Congress.  The  secretary 
of  state  shall  prepare  two  lists  of  the  names  of  the  electors  elected,  and  attix 
the  seal  of  the  State  to  the  same.  Such  lists  shall  be  signed  by  the  governor  and 
secretary,  and  by  the  latter  delivered  to  the  college  of  electors  at  the  hour  of  their 
meeting  on  the  first  Wednesday  of  December. 

Here  it  is  provided  that  "  the  votes  for  the  electors  shall  be  given, 
received,  returned,  and  canvassed  as  the  same  are  given,  returned, 
and  canvassed  for  members  of  Congress."  By  turning  to  section  37 
we  find  the  provision  for  canvassing  the  votes  given  for  Representa 
tives  iu  Congress  as  follows : 

The  county  clerk,  immediately  after  making  the  abstract  of  the  votes  given  in 
his  county,  shall  make  a  copy  of  each  of  said  abstracts,  and  transmit  it  by  mail  to 
the  secretary  of  state  at  the  seat  of  government ;  and  it  shall  be  the  duty  of  the 
secretary  of  state,  in  the  presence  of  the  governor,  to  proceed  within  thirty  daya 
after  the  election,  and  sooner  if  the  returns  be  all  received,  to  canvass  the  votes 
given  for  secretary  and  treasurer  of  state,  state  printer,  justices  of  the  supreme 
court,  member  of  Congress,  and  district  attorneys  ;  and  the  governor  shall  grant  a 
certificate  of  election  to  the  person  having  the  highest  number  of  votes,  and  shall 
also  issue  a  proclamation  declaring  the  election  of  such  person. 

By  the  above  provision,  the  secretary  of  state  is  made  the  canvass 
ing  and  returning  officer  for  member  of  Congress  and  all  the  State 
officers.  He  is  to  canvass  the  votes  in  the  presence  of  the  governor, 
but  the  governor  is  simply  a  witness  and  takes  QO  part  whatever  in 
the  canvass,  and  is  positively  required  to  issue  a  certificate  of  election 
to  the  person  having  the  highest  number  of  votes  as  certified  by  the 
secretary.  Upon  this  subject  the  governor  has  no  discretion  whatever. 
His  duty  is  purely  ministerial,  and  the  certificate  of  election  for  mem- 
berof  Congress  and  every  State  officer  is  to  be  issued  to  the  person  having 
the  highest  number  of  votes.  All  questions  of  eligibility  are  taken 
from  him.  His  duty  is  imperative  to  certify  to  the  person  having  the 
highest  number  of  votes ;  and  what  he  is  to  do  as  to  the  member  of 
Congress  and  the  State  officers  he  is  by  the  other  section  required  to 
do  as  to  presidential  electors. 

By  section  60,  above  quoted,  the  secretary  is  to  canvass  and  re 


turn  the  persons  appointed  electors;  is  to  prepare  two  lists  of  the 
names  of  the  persons  appointed,  and  affix  to  them  the  seal  of  the 
State.  The  governor  is  then  commanded  to  sign  these  lists,  and  the 
secretary  to  deliver  them  "  to  the  college  of  electors  at  the  hour 
of  their  meeting  on  such  first  Wednesday  of  December."  Wheu 
the  secretary  has  canvassed,  certified,  and  returned  the  votes  of  elect 
ors  to  his  office,  their  appointment  is  complete.  All  that  the  governor 
has  to  do  with  the  matter  thereafter  under  the  statute  is  purely 
ministerial.  He  has  no  judicial  power  upon  the  subject.  He  has  no 
discretion  whatever  reposed  in  him  by  the  law.  It  is  his  peremp 
tory  duty  to  sign  the  lists  made  out  by  the  secretary,  and  the  secre 
tary  is  to  certify  to  the  election  of  the  persons  having  the  highest 
number  of  votes.  Taking  the  two  sections  of  the  statute  together,  it 
is  the  absolute  duty  of  the  secretary  to  return  as  appointed  those  per 
sons  having  the  highest  number  of  votes,  and  the  absolute  duty  of 
the  governor  to  give  the  certificate  to  the  persons  thus  returned  by  the 
secretary. 

The  title  of  the  persons  appointed  electors,  as  shown  by  the  cer 
tificate  of  the  secretary  made  out  on  the  4th  day  of  December,  and 
deposited  in  his  office,  was  complete,  and  could  not  be  impaired  or 
affected  in  any  way  by  the  refusal  of  the  governor  thereafter  to  issue 
the  certificate  as  he  was  required  to  do  by  law.  The  secretary  of 
state  in  Oregon  is  the  canvassing  officer  and  has  the  same  duties 
devolved  upon  him  as  those  which  belong  to  the  canvassing  officers 
iu  Florida  or  to  the  returning  board  in  Louisiana,  except  that  he  has 
no  judicial  or  discretionary  powers  given  to  him  as  are  conferred  by 
the  statutes  of  Florida  and  Louisiana,  his  duty  in  all  cases  being  to  re 
turn  as  elected  the  persons  having  the  highest  number  of  votes.  The 
certificates  signed  by  the  governor  of  the  appointment  of  electois 
having  been  withheld  from  the  electoral  college,  the  electors  pro 
cured  from  the  secretary,  under  the  seal  of  the  State,  a  copy  of  the 
certificate  of  the  vote  of  the  State,  as  tabulated  and  prepared  by  him 
on  the  4th  of  December,  and  inclosed  it  in  the  certificate  containing 
their  votes  and  the  record  of  their  action  on  the  6th  day  of  December 
transmitted  by  them  to  the  President  of  the  Senate. 

I  may  here  repeat  what  I  said  in  the  Florida  and  Louisiana  cases, 
that  the  question  of  eligibility  of  electors  belongs  to  the  States  and 
if  it  is  disregarded  by  the  States  there  is  no  way  when  the  votes  are 
counted  in  the  presence  of  the  two  Houses  or  by  this  Commission 
to  try  and  settle  such  question.  In  the  case  of  Caesar  Griffin,  Chief- 
Justice  Chase  decided  that  the  fourteenth  amendment  to  the  Consti 
tution  making  certain  persons  ineligible  to  office  was  not  self-exe 
cuting  and  could  not  be  carried  into  effect  in  the  absence  of  an  act  of 
Congress  providing  for  the  adjudication  and  settlement  of  questions 
arising  under  it.  There  are  few  provisions  of  the  Constitution  that 
are  self-executing,  and  clearly  this  is  not  one,  but  in  any  point  of 
view  the  question  of  eligibility  as  it  has  been  raised  in  this  and  the 
Louisiana  and  Florida  cases  is  wholly  unimportant.  Here  Dr.  Watts 
was  re-elected  elector  by  the  college  in  pursuance  of  the  statute  after 
the  alleged  ineligibility  had  been  removed ;  but  if  at  the  time  of  his 
re-election  on  the  6th  of  December  he  had  still  been  postmaster  it  could 
not  have  affected  the  validity  of  the  vote  which  he  cast  as  an  elector. 
It  has  been  held  that  the  official  acts  of  one  who  is  ineligible  to  hold 
the  office  were  valid  although  after  that  time  a  court  of  law  in  the 
proceeding  upon  quo  warranto  found  the  fact  of  ineligibility  and 
ousted  him  from  the  office.  In  one  case  the  judgment  and  findings  of 
a  court  were  held  to  be  valid  although  it  was  subsequently  decided 
by  the  proper  tribunal  that  the  judge  was  ineligible  under  the  four 
teenth  amendment  to  hold  the  office.  But  this  doctrine  is  so  well 
understood  and  so  universally  applied  that  there  ought  to  be  no  ar 
gument  upon  this  subject. 

The  very  highest  interests  of  society  require  that  the  validity  of 
official  acts  shall  not  be  disturbed  because  of  the  ineligibility  of  the 
persons  performing  them  to  hold  the  office.  And  the  reasons  for  this 
doctrine  apply  as  strongly  in  this  case  as  iu  any  other.  If  the  vote 
of  an  elector  can  be  stricken  out  by  a  subsequent  decision  that  he 
was  ineligible  the  evil  is  without  remedy ;  the  State  has  lost  the  vote 
and  the  spirit  of  the  Constitution  has  been  violated.  The  theory  of 
the  Constitution  when  it  was  formed  was  that  the  electors  were  to  be 
an  independent  body  of  select  men  who  were  to  be  perfectly  free,  and 
without  committals  or  entanglements  of  any  kind,  to  act  as  they 
thought  best  for  the  good  of  the  country  ;  and  to  secure  this  inde 
pendence  they  were  to  vote  by  ballot  so  that  one  should  not  know 
how  the  other  voted.  We  all  know  in  practice  how  completely  this 
purpose  upon  the  part  of  the  framers  of  the  Constitution  has  been 
swept  away.  They  are  pledged  in  every  case  in  advance  to  cast  their 
votes  for  the  candidates  of  a  particular  party,  and  if  they  should  disre 
gard  this  pledge  they  would  be  infamous,  and  it  is  a  matter  of  no  im 
portance  whatever  whether  they  are  members  of  Congress  or  officers  of 
the  United  States.  Not  only  are  they  pledged  in  advance  for  whom 
they  shall  vote,  but  under  the  practical  workings  of  our  institutions 
this  previous  pledge  is  the  greatest  security  the  country  has  against 
their  corruption  and  the  improper  exercise  of  so  great  a  power. 

In  the  State  of  Oregon  there  was  no  dispute  as  to  the  result  of 
the  vote  by  the  people  on  the  7th  of  November.  The  action  of 
the  governor  was  clearly  illegal  and  in  violation  of  the  plainest  pro 
visions  of  the  statutes  of  the  State  as  well  as  of  the  United  States. 
The  secretary  in  the  performance  of  the  duty  imposed  upon  him 
counted  the  vote  and  certified  to  it  under  the  seal  of  the  State,  and 
when,  he  issued  his  certificate  showing  who  had  received  the  highest 


200 


ELECTOEAL  COMMISSION. 


number  of  votes,  the  law  of  the  State  declared  that  such  person  was 
elected  and  was  entitled  to  be  ministerially  certilied  to  by  the  gov 
ernor,  and  no  failure  or  refusal  upon  the  part  of  the  governor  could 
n  fleet  hia  title.  The  certificate  of  the  governor  of  the  appointment 
of  the  electors  is  prima  facie  evidence  of  their  appointment,  unim- 
praehed,  but  it  may  always  be  impeached  by  showing  that  it  is  in 
conflict  with  the  canvass  and  return  made  by  the  officers  authorized 
by  the  law  of  the  State  to  make  such  canvass  and  return,  and  in  this 
case  the  certificates  of  the  secretary  of  state  inclosed  in  the  certificate 
made  by  tho  electors  and  transmitted  to  the  President  of  the  Senate 
shows  clearly  that  the  State  of  Oregon  had  appointed  Watts,  Odell, 
and  Cartwright  as  electors. 

SOUTH  CAROLINA. 

The  electoral  votes  of  South  Carolina  being  under  consideration — 

Mr.  Commissioner  MORTON  said: 

Mr.  PRESIDENT  :  in  this  case  it  seems  hardly  necessary  to  say  a 
word.  It  is  not  denied  that  the  Hayes  electors  received  a  majority 
of  all  the  votes  at  the  late  election  in  South  Carolina.  This  fact  was 
found  by  a  democratic  investigating  committee  sent  into  the  State  by 
the  House  of  Representatives.  The  republicans  contend  that  but  for 
tho  most  monstrous  frauds  practiced  in  Edgefield  and  Laurens  Conn- 
ties  and  in  many  other  localities  in  the  State,  their  majority  would 
have  been  thousands  where  it  is  now  conceded  to  be  hundreds.  There 
are  but  two  points  made  in  the  argument  against  the  validity  of  the 
vote  of  the  Hayes  electors  which  I  will  notice. 

First,  it  is  alleged  that  the  election  in  South  Carolina  was  void  bo- 
cause  there  had  been  no  registry  made  of  the  voters  as  required  by 
the  constitution  of  the  State.  The  provision  of  the  constitution  of 
South  Carolina  has  never  been  executed  by  a  law  passed  by  the  Leg 
islature,  and  repeated  elections  have  been  had  and  the  legality  of  them 
has  never  been  questioned  notwithstanding  the  absence  of  a  registry 
law.  If  the  absence  of  such  a  law  invalidates  all  elections  in  the 
State,  then  South  Carolina  has  had  no  legal  government  since  18G8, 
and  the  recent  pretended  election  of  Hampton  is  a  fraud. 

But  whatever  might  be  the  legal  effect  of  the  absence  of  a  registry 
law  upon  the  election  of  State  officers,  it  is  absurd  to  protend  that  it 
could  have  any  upon  the  appointment  of  electors.  They  are  to  bo 
appointed  in  the  manner  proscribed  by  tho  Legislature  of  the  State 
and  not  by  the  constitution  of  the  State.  The  manner  of  the  appoint 
ment  of  electors  has  been  placed  by  the  Constitution  of  the  United 
States  in  tho  Legislature  of  each  State  and  cannot  be  taken  from  that 
body  by  the  provisions  of  a  State  constitution.  If  the  constitution 
of  a  State  should  provide  that  electors  should  be  appointed  by  the 
supreme  court  of  the  State,  that  could  not  prevent  the  Legislature 
from  providing  that  electors  may  be  appointed  by  the  vote  of  the 
people.  The  Constitution  of  the  United  States  provides  that  Sena 
tors  shall  be  chosen  by  the  Legislatures  of  each  State,  and  it  is  not 
competent  in  the  constitution  of  a  State  to  require  that  Senators 
shall  be  elected  by  the  people  at  a  general  election  and  thus  take  from 
tho  Legislature  the  right  to  elect. 

The  power  to  appoint  electors  by  a  State  is  conferred  by  the  Con 
st  i  tut  ion  of  the  United  States  and  does  not  spring  from  a  State  con- 
Htitution,  and  cannot  be  impaired  or  controlled  in  any  respect  by  a 
State  constitution.  It  is  competent  for  the  constitution  of  the  State 
to  provide  that  State  officers  shall  bo  chosen  at  an  election  where  the 
voters  have  been  registered,  but  it  is  not  competent  to  make  any  such 
requisition  as  to  the  appointment  of  electors.  If  the  Legislature  pro 
vidos  that  electors  may  be  appointed  by  the  people  at  the  polls  with 
out  having  been  previously  registered  it  has  a  clear  right  to  do  so. 

Second,  it  is  alleged  that  there  is  no  republican  government  in  the 
State  of  South  Carolina,  and,  therefore,  no  Legislature  which  can  pro 
vide  for  the  appointment  of  electors  or  direct  and  control  an  election 
by  the  people.  My  answer  to  this  is,  that  it  is  not  true. 

There  is  and  has  been  a  republican  government  in  the  State  of  South 
Carolina  over  since  reconstruction  in  18(58,  and  although  it  has  been 
surrounded  with  great  difficulties  and  has  of  ton  been  disturbed  by 
violence  arid  threatened  with  revolution,  it  has  maintained  a  con- 
l.imied  existence  since  its  re-establishment  after  tho  rebellion.  Tho 
Constitution  provides  that  the  United  States  shall  guarantee  to  each 
State  a  republican  form  of  government.  If  there  is  not  a  republican 
form  of  government  in  South  Carolina  it  is  for  tho  two  Houses  of 
Congress  acting  in  a  legislative  capacity  to  declare  that  fact  and  pro 
vide  for  the  establishment  of  one  ;  but  until  that  takes  place  I  must 
assume  that  South  Carolina  has  a  republican  form  of  government  and 
as  much  right  as  any  other  State  to  appoint  electors  and  participate 
in  tho  presidential  election.  It  seems  to  mo  I  should  be  trilling  with 
the  intelligence  of  the  Commission  to  argue  this  question  further. 


Remarks  of  Mr.  Commissioner  Thurmnn. 

FLORIDA. 

Tho  Commission  having  under  consideration  the  electoral  votes  of  the  State  of 
Florida — 

Mr.  Commissioner  THURMAN  next  addressed  the  Commission. 
Ill-health  has  prevented  his  writing  out  his  remarks.  The  following 
is  a  synopsis  of  them : 

Mr.  President,  in  the  discharge  of  its  duties,  this  Commission,  by 
the  act  creating  it,  is  vested  with  the  same  powers,  in  the  count  o'f 


the  electoral  votes,  now  possessed  by  the  two  Houses  of  Congress 
acting  separately,  or  together ;  and  it  is  required  to  ascertain  and 
decide  whether  any  and  what  votes  from  a  State  are  the  votes  pro 
vided  for  by  the  Constitution  of  the  United  States,  and  how  many 
and  what  persons  were  duly  appointed  electors  in  such  State.  We 
are  thus  brought  to  the  question,  What  are  the  powers  of  the  two 
Houses  of  Congress  in  counting  the  electoral  vote.  It  has  been  con 
tended  that  we  are  concluded  by  the  certificate  of  the  governor  that 
A  B,  &c.,  were  the  duly  appointed  electors  of  the  State  of  Florida, 
but  this  proposition  cannot  be  maintained.  There  is  nothing  in  the 
act  of  Congress  requiring  the  governor's  certificate,  nor  in  any  statute 
of  Florida,  that  makes  his  certificate  conclusive.  It  is,  therefore,  sub 
ject  to  be  rebutted,  and  the  question  now  is  upon  what  grounds  can 
it  be  contested.  I  understand  it  to  be  asserted,  by  those  who  claim 
the  election  or  the  appointment  of  the  Hayes  electors,  that  the  gov 
ernor's  certificate  is  not  conclusive  unless  made  in  accordance  with 
the  decision  of  the  canvassing  board;  but  that,  when  so  made,  it  is 
conclusive.  This  raises  the  question  whether  the  decision  of  that 
board  can  be  impeached.  I  maintain  that  it  can.  I  shall  not  in  this 
case,  because  it  is  unnecessary,  go  into  an  inquiry  as  to  all  the  causes 
for  which  a  decision  of  a  canvassing  board  may  be  impeached.  It 
will  be  found  sufficient  for  the  decision  of  this  case  that  it  is  impeach- 
able  for  want  of  jurisdiction  in  the  board  to  do  that  which  it  did ; 
and  the  effect  of  which  was  to  change  the  apparent  result  of  the  elec 
tion.  I  know  of  no  tribunal,  high  or  low,  whose  acts,  without  juris 
diction  or  beyond  its  jurisdiction,  are  not  absolutely  void. 

Now,  upon  the  county  returns  it  is  not  denied,  and,  indeed,  appears 
by  evidence  already  before  us,  and  not  controverted,  that  the  Tilden 
electors  received  a  majority  of  the  votes  of  the  people  of  Florida  ; 
and  it  also  appears  that  it  was  only  by  throwing  out  the  votes  of 
counties  or  precincts  that  an  apparent  majority  was  shown  for  the 
Hayes  electors.  Had  the  canvassing  board  of  Florida  any  author 
ity  to  throw  out  these  votes  ?  This  question  has  been  decided  by  the 
highest  judicial  tribunal  of  that  State,  interpreting  the  statute  cre 
ating  that  board  and  defining  its  powers.  In  the  case  of  Drew  against 
Stearns  tho  supreme  court  ot  Florida  held  that  the  canvassing  board 
had  no  judicial  powers  whatsoever ;  that  its  powers  were  simply  min 
isterial  ;  that  it  was  bound  to  count  the  votes  given  and  could  not 
inquire  into  tho  legality  or  illegality  of  the  votes  thus  given.  Con 
sequently,  the  decision  of  the  canvassing  board  that  Stearns  was 
elected  governor,  which  decision  was  effected  in  the  same  manner  by 
which  that  board  declared  the  Hayes  electors  to  be  chosen,  was  de 
clared  by  the  supreme  court  of  the  State  to  be  unauthorized  by  the 
statute  and  a  plain  usurpation  of  power.  That  decision  is  as  applica 
ble  to  the  case  of  the  presidential  electors  as  to  the  case  of  Drew  and 
Stearns,  the  rival  candidates  for  governor.  It  is  perfectly  conclusive 
of  the  meaning  of  the  statute,  as  much  so  as  if  it  were  written  in 
the  statute  in  so  many  words.  It  follows  then  that  if  we  are  to 
respect  tho  statute  of  Florida,  which  everybody  admits  must  govern 
the  case,  the  canvassing  board,  in  throwing  out  the  votes  for  the 
Tilden  electors  and  thereby  giving  an  apparent  majority  to  the  Hayes 
electors,  acted  without  jurisdiction,  and  their  act  was,  therefore,  ab 
solutely  null  and  void.  But  the  above  is  not  the  only  decision  of  the 
Florida  courts.  In  a  quo  warranto  sued  out  by  the  Tilden  electors 
against  the  Hayes  electors,  the  circuit  court  of  Florida  haviug  ad 
mitted  jurisdiction,  has  decided  that  the  Tilden  electors  and  not  the 
Hayes  electors  wore  duly  appointed.  Moreover,  the  Legislature  of  the 
State  has  affirmed  this  view  of  the  State  statute  and  the  present  gov 
ernor  of  the  State  has  given  to  the  Tilden  electors  certificates  of  their 
appointment.  So  that  every  department  of  government  in  Florida, 
executive,  legislative,  and  judicial,  has  decided  against  the  preten 
sion  of  the  Hayes  electors.  And  I  think  it  is  impossible  for  any  fair- 
minded  lawyer  to  carefully  examine  the  Florida  statutes  without 
being  brought  to  concur  in  the  correctness  of  these  decisions  of  her 
authorities. 

And  here  it  is  proper  to  remark  that  there  is  nothing  in  the  Con 
stitution  or  laws  of  the  United  States,  or  in  the  constitution  or  laws 
of  Florida,  that  makes  the  canvassing  board  the  sole  judge  of  its 
own  jurisdiction.  On  tfie  contrary,  tho  decisions  to  which  I  have 
referred  distinctly  hold  that  it  is  not  tho  sole  judge,  and,  in  Drew 
against  Stearns,  the  supremo  court  compelled  it  to  recount  the  votes 
and  reverse  its  first  decision.  And  here  I  would  further  observe  that 
to  remedy  the  injustice  perpetrated  by  that  board  in  the  count  of  the 
votes  for  presidential  electors,  is  not,  as  has  been  suggested,  to  invade 
the  right  of  the  State.  It  is  precisely  the  reverse.  It  is  to  uphold  the 
statute  of  the  State  and  to  protect  her  from  the  consequences  of  a 
violation  of  her  laws  and  of  an  usurpation  by  her  officers.  The  votes 
cast  for  Hayes  by  the  Hayes  electors  have  not  yet  been  counted. 
Effect  cannot  be  given  to  them  until  they  be  counted.  Tho  proceed 
ing  is,  therefore,  still  in  fieri  and  tho  twoHousesof  Congress,  to  whom 
it  belongs  to  count  the  votes,  must  of  necessity  determine — as  this 
Commission  is  required  by  tho  act  creating  it  to  determine — 

Whether  any  and  what  votes  from  such  State  aro  the  votes  provided  for  by  tho 
Constitution  o'f  tho  United  States,  and  how  many  and  what  persons  were  duly  ap 
pointed  electors  in  such  State.  < 

In  executing  these  powers  the  two  Houses  of  Congress  cannot,  and, 
therefore,  this  Commission  cannot,  shut  their  eyes  to  the  fact  that  the 
statutes  of  Florida,  as  construed  by  her  courts,  required  the  certifi 
cate  of  election  to  be  given  to  the  Tilden  electors,  and  that  it  was 
only  by  a  gross  usurpation  of  power  that  the  canvassing  board  de 
cided  in  favor  of  the  Hayes  electors. 


201 


But  if  it  be  said  that  the  remedy  can  be  provided  by  the  State  alone 
and  that  if  she  has  not  provided  a  remedy  the  wrong  is  remediless,  I 
answer — 

First.  That  the  electors,  being  a  creation  of  the  Federal  Constitu 
tion,  it  is  the  duty  of  the  two  Houses  of  Congress,  who  count  the 
votes,  to  see  that  they  are  appointed  consistently  with  the  provisions 
of  the  Constitution.  And,  consequently,  no  State  can,  by  neglecting 
to  provide  a  remedy,  compel  the  Houses  to  count  votes  given  by 
usurping  electors  who  are  not  appointed  in  the  mode  contemplated 
by  the  Constitution ;  that  is  to  say,  in  the  manner  prescribed  by  the 
State  Legislature. 

Second.  That  the  other  States  and  the  whole  people  of  the  United 
States  are  parties  interested  in  the  proceeding,  and  the  question 
whether  there  shall  be  a  remedy  is  not  left  to  the  discretion  of  the 
State  alone. 

Third.  That  if  the  remedy  must  be  a  State  remedy  it  has  been  ap 
plied  in  this  case,  and  the  decision  is  adverse  to  the  claim  of  the 
Hayes  electors. 

If  I  am  right  in  these  propositions,  it  follows  that  the  testimony  on 
the  question  of  jurisdiction  ought  to  be  received. 

I  also  think  that  proof  of  fraud  is  admissible.  The  canvassing 
board  was  neither  a  Legislature  nor  a  judicial  court,  and  I  know  of 
no  principle  of  law,  or  manifest  public  policy,  that  shields  it  from  an 
inquiry  into  the  bona  fides  or  mala  fides  of  its  acts. 

It  is  said  that  if  we  go  behind  the  decision  of  the  canvassing  board 
we  must  go  the  bottom,  and  may  thus  be  led  to  investigate  the  doings 
of  hundreds  of  thousands  of  election  officers  in  the  United  States 
and  the  qualification  of  millions  of  voters.  I  reply,  non  constat.  It 
is  not  sound  logic  to  say,  that  because  we  cannot  investigate  every 
thing  we  shall  investigate  nothing,  that  because  we  cannot  correct 
all  errors  and  frauds  we  shall  correct  none.  The  law  never  requires 
impossibilities,  but  it  does  require  what  is  possible. 

But  the  argument  upon  which  the  greatest  stress  has  been  laid  to 
sustain  the  vote  for  Hayes  is  that  the  Hayes  electors  were,  when  they 
oast  their  votes,  electors  de  facto,  and  that  consequently  the  doctrine 
in  relation  to  the  acts  of  officers  de  facto  applies  to  them.  I  deny  that 
that  doctrine  has  any  application  in  this  case.  I  am  not  prepared  to 
admit  that  presidential  electors  are  officers  at  all.  They  are  what  the 
Constitution  calls  them — "electors"  who  have  but  a  single  act  to  per 
form,  and  their  existence  as  electors  may  be  as  ephemeral  as  the  life 
of  an  insect.  In  this  case  it  was  so.  The  canvassing  board  declared 
the  appointment  of  the  Hayes  electors  on  the  very  day  that  the  elect 
oral  vote  was  to  be  cast,  and  in  two  or  three  hours  after  that  declara 
tion  the  vote  was  cast.  What  time  was  there  to  institute  legal  pro 
ceedings  and  carry  them  into  judgment  between  the  decision  of  the 
canvassing  board  and  the  casting  of  the  electoral  votes  ?  Manifestly 
none  at  all.  To  require,  therefore,  as  the  argument  does,  that  these 
men  should  have  been  ousted  from  their  office  by  judicial  proceed 
ings  before  they  cast  their  votes,  and  that  if  not  so  ousted  they  were 
officers  de,  facto,  and  their  acts  are  valid,  is  a  simple  mockery  of  justice 
that  it  is  difficult  to  contemplate  without  a  feeling  of  contempt.  All 
that  could  be  done  in  the  way  of  judicial  proceedings  was  done  in  this 
case.  A  writ  of  quo  warranto  was  issued  by  a  court  of  competent 
jurisdiction  and  served  upon  the  Hayes  electors  before  they  cast  their 
votes.  Of  course  no  decision  could  be  had  upon  that  writ  within  the 
two  or  three  hours  that  elapsed  after  its  service  and  before  the  votes 
were  cast.  But  the  case  was  prosecuted  to  final  judgment,  and  the 
judgment  was  that  the  Hayes  electors  were  usurpers  who  never  had 
any  title  to  be  called  electors  of  Florida,  and  although  no  judgment 
of  ouster  could  be  pronounced,  because  the  votes  had  been  already 
cast,  yet  the  decision  is  a  judicial  determination  that  the  Hayes  elect 
ors  had  no  title  whatsoever. 

"  The  power  of  the  two  Houses  to  go  behind  the  governor's  certifi 
cates  and  the  decisions  of  canvassing  boards  has  been  again  and  again 
asserted  by  the  Houses  and  carried  into  execution.  Thus  in  1865 
Congress  resolved  that  no  votes  for  presidential  electors  should  be 
received  from  the  States  of  Florida,  Louisiana,  Tennessee,  Missis 
sippi,  North  Carolina,  Virginia,  South  Carolina,  Alabama,  Arkansas, 
Texas,  and  Georgia.  In  1873  the  votes  of  the  States  of  Arkansas  and 
Louisiana,  and  certain  electoral  votes  of  the  State  of  Georgia,  were 
rejected.  But  these  instances  are  familiar  to  the  members  of  the 
Commission,  and  it  is  unnecessary  to  dwell  upon  them. 


LOUISIANA. 

The,  Commission  having  under  consideration  the  electoral  vote  of  the  State  of 
Loumiaua — 

Mr.  Commissioner  THURMAN  next  addressed  the  Commission. 
Ill-health  has  prevented  his  writing  out  his  remarks  in  full.  The  fol-* 
lowing  is  a  synopsis  of  them  : 

Mr.  President,  it  is  my  opinion — 

I.  That  the  votes  for  presidential  electors,  cast  in  the  State  of  Lou 
isiana  at  the  last  election,  have  never  been  canvassed  by  any  lawful 
authority.  I  deny  that  the  returning  board  of  Louisiana  has  any 
lawful  existence.  I  deny  that  the  constitution  of  that  State,  or  any 
thing  in  the  Federal  Constitution,  confers  upon  her  Legislature  the 
power  to  create  such  a  board.  To  understand  this  proposition  we  must 
iook  at  the  constitution  and  powers  of  that  board  as  defined  in  the 
statute  creating  it.  And  we  must  consider  them  not  in  an  abstract 


and  theoretical  manner,  but  with  a  clear  view  of  their  practical 
effect.  It  is  not  true  that  every  law  that  might  upon  its  face  seem 
to  be  unobjectionable  is  necessarily  constitutional.  Laws  are  not 
mere  abstract  things.  They  are  meant  to  be  practical  and  if  the  in 
evitable  practical  result  of  a  law  directly  conflicts  with  the  admitted 
principles  or  provisions  of  the  Constitution  the  law  cannot  stand. 

Let  us  then  see  what  is  the  Louisiana  returning  board.  It  is  a 
board  consisting  of  five  persons  holding  their  offices  without  any  lim 
itation  of  time  and  filling  all  the  vacancies  that  occur  in  their  own 
body.  It  is,  therefore,  a  kind  of  perpetual,  self-preserving  and  self- 
perpetuating,  corporation.  Neither  its  existence  nor  its  powers  can 
be  affected  except  by  a  repeal  or  modification  of  the  law  creating  it. 
Bat  no  such  repeal  or  modification  can  take  place  without  its  permis 
sion  ;  for,  by  conferring  upon  it,  in  plain  violation  of  the  constitution 
of  the  State,  the  power  to  canvass  the  votes  for  members  of  the  Gen 
eral  Assembly,  the  board  is  enabled  to  constitute  the  Legislature,  when 
ever  it  sees  fit,  so  as  to  contain  a  majority  of  its  friends  It  is  of  no 
use  to  say,  that  it  will  not  corruptly  or  unlawfully  exercise  this  power. 
Again  and  again,  it  has  corruptly  and  unlawfully  exercised  it.  It  has 
so  corruptly  and  unlawfully  exercised  it  after  every  election  that  has 
taken  place  since  the  board  was  created.  In  1872,  a  majority  of  the 
conservatives,  or  fnsionists  as  they  were  then  called,  were  elected  to 
the  General  Assembly.  The  returning  board  threw  out  large  numbers 
of  them  and  gave  their  places  to  men  who  were  notoriously  not  elected, 
and  thus  created  a  republican  majority  in  both  branches  of  the  Assem 
bly.  In  1874  precisely  the  same  thing  occurred.  In  1876  it  occurred 
for  the  third  time,  and  these  are  the  only  years  since  the  creation  of 
the  board  in  which  elections  for  members  of  the  Assembly  have  taken 
place.  In  the  same  way  the  board  has  defeated  the  election  of  State 
officers  by  the  people  in  each  one  of  these  years,  and  to  cap  the  climax 
of  its  infamy  it  has  thrown  out  thousands  of  votes  given  for  the  Til- 
den  electors,  and  thereby  changing  the  vote  of  the  people,  has  de 
clared  the  Hayes  electors  to  be  duly  appointed.  And  if  its  power 
can  be  sustained,  there  is  obviously  no  end  to  its  rule  over  the  people 
of  Louisiana.  It  is  made,  by  the  statute  creating  it,  the  returning 
board  for  all  elections  held  in  the  State  for  all  officers  from  the  high 
est  to  the  very  lowest,  and  it  executes  its  powers  in  the  interest  of  its 
party  and  itself  without  shame  and  without  remorse.  Take  a  map  of 
Louisiana,  mark  upon  it  the  democratic  precincts  whose  votes  for 
members  of  the  assembly  were  thrown  out  last  December,  and  you  will 
find  as  many  blotches  on  the  map  as  there  are  scars  upon  the  face  of 
a  victim  of  the  small-pox.  Why  was  this  done  ?  Not  merely  to  affect 
the  result  of  the  presidential  election,  or  of  the  election  for  officers  of 
the  State — for  the  republican  electors  and  State  officers  could  have 
been  counted  in  without  running  all  over  the  State  to  throw  out  a 
democratic  precinct  here  and  another  one  there.  It  was  done  to  give 
the  republicans  the  majority  in  the  Legislature,  and  to  do  it  precinct 
after  precinct  was  thrown  out  where  there  was  no  pretense  whatever 
that  the  election  was  not  fair  and  peaceable ;  no  pretense  whatever 
of  bribery,  intimidation,  or  employment  of  any  corrupt  means.  In 
short,  the  powers  given  to  this  board  are  more  transcendent  in  their 
practical  operation  than  the  powers  of  the  whole  body  of  the  people 
of  the  State.  The  board  is  in  effect  constituted  the  State — to  govern 
it  according  to  its  own  arbitrary  will  and  discretion.  There  is  no  re 
publican  government  in  Louisiana.  There  can  be  no  republican  gov 
ernment  in  that  State  so  long  as  this  returning  board  is  upheld.  An 
oligarchy  more  corrupt,  more  odious,  more  anti-republican,  never 
before  existed  on  this  globe. 

I  repeat,  that  the  constitution  of  Louisiana  confers  no  authority 
upon  the  Legislature  of  that  State  to  create  any  such  board.  Nay, 
more,  its  power  to  canvass  the  votes  for  members  of  the  General  As 
sembly  is  in  direct  conflict  with  that  constitution,  which  makes  each 
house  of  the  Assembly  the  sole  judge  of  the  election,  returns,  and 
qualifications  of  its  members.  And  such  was  the  view  taken  by  the 
Senate  Committee  on  Privileges  and  Elections  in  1873,  in  the  elabo 
rate  report  presented  by  Mr.  Carpenter,  and  which  was  dissented  from 
by  but  one  member  of  the  committee.  The  returning  board  of  that 
day  was  denounced  as  unconstitutional ;  but  if  that  board  was  un 
constitutional,  a  multo  fortiori  is  the  board  of  to-day,  created  by  a 
subsequent  statute,  and  with  the  powers  of  self-perpetuation  to  which 
I  have  alluded,  unconstitutional.  Now,  it  is  upon  the  canvass  made 
by  this  unconstitutional  returning  board,  it  is  upon  its  assumption  of 
power  to  throw  out  from  six  to  ten  thousand  votes  given  for  the  Til- 
den  electors,  that  the  advocates  of  the  Hayes  electors  claim  the  vote 
of  the  State.  I  deny  that  this  decision  of  that  board  has  any  legal 
effect  whatsoever.  Being  unconstitutional,  it  had  no  right  to  can 
vass  those  votes,  no  more  than  any  other  four  citizens  of  the  State  of 
Louisiana. 

Another  objection  to  the  constitutionality  of  the  board  was  made 
by  counsel  [Mr.  Carpenter]  and  argued  with  great  force  ;  and  seems 
to  me  to  deserve  our  serious  consideration.  It  is  the  objection  that 
the  statute  clothes  the  board  with  power  to  disfranchise  voters — the 
innocent  as  well  as  the  guilty — and  to  do  so  without  any  trial  or  hear 
ing  to  which  the  voter  is  a  party.  That  the  power  to  disfranchise  is  a 
judicial  power  that  could  not  be  conferred  upon  the  board  ;  the  consti 
tution  of  Louisiana  expressly  declaring  (article94)  that :  "  No  judicial 
powers,  except  as  committing  magistrates  in  criminal  cases,  shall  be 
conferred  on  any  officers  other  than  those  mentioned  in  this  title, 
(title  4,)  except  such  as  may  be  necessary  in  towns  and  cities;  and 
the  judicial  powers  of  such  officers  shall  not  extend  further  than  the 


20-2 


ELECTORAL  COMMISSION. 


cognizance  of  cases  arising  under  the  police-regulations  of  towns  and 
cities  in  the  State."  The  officers  mentioned  in  title  4  are  judges, 
justices  of  the  peace,  an  attorney- general,  sheriffs,  and  coroners. 

II.  But  if  the  law  creating  the  board  is  not  unconstitutional,  yet 
the  hoard  that  canvassed  the  votes  in  question  was  not  legally  con 
stituted.    The  statute  creating  it  required  that  the  board  should  con 
sist  of  Jive  persons,  taken  "from  all  political  parties,"  and  this  provis 
ion  requiring  the  different  political  parties  to  be  thus  represented  is 
of  the  very  essence  of  the  law.    But  the  board  that  canvassed  the 
votes  for  electors  after  the  late  election  consisted  of  but  four  mem 
bers,  all  of  the  saruo  political  party,  namely,  all  republicans.    These 
four  were  applied  to,  again  and  again,  to  execute  the  statute  by  fill 
ing  the  vacancy  in  the  hoard  with  a  democrat.    They  utterly  refused 
or  neglected  to  do  so,  and,  without  filling  the  vacancy  at  all,  proceeded 
to  canvass  the  returns,  throw  out  thousands  of  votes,  and  pronounce 
a  decision  in  favor  of  the  Hayes  electors.     It  has  been  argued  that 
because  a  majority  of  the  board  constituted  a  quorum,  therefore  the 
board  could  proceed  without  tilling  the  vacancy,  and  it  has  been  said 
that  if  a.  dozen  or  more  members  of  the  Senate  of  the  United  States 
were  absent  or  dead  but  a  quorum  were  present,  there  would  be  a 
lawful  Senate  ;  or  that  if  four  of  the  judges  of  the  Supreme  Court 
were  absent,  but  five  were  present,  there  would  be  a  lawful  court. 
Nobody  doubts  either  of  those  propositions ;  but  they  have  not  the 
remotest  application  to  the  present  case.    If  the  Constitution  required 
that  the  Senate  should  consist  of  different  classes  of  persons  and  gave 
to  the  Senate  the  power  to  fill  all  vacancies  in  its  own  body,  and 
there  were  vacancies,  and  the  members  present  refused  to  fill  them, 
there  would  be  some  analogy  bet  ween  that  case  and  this.    And  so  of  the 
Supreme  Court.     But  no  such  requisition  or  power  is  contained  in 
the  Constitution,  and  hence  the  illustrations  are  of  no  value  whatso 
ever.     Here  we  have  a  plain  statute  that  requires  the  returning-board 
to  be  constituted  from  all  political  parties.    The  reason  of  the  require 
ment  is  perfectly  obvious.    It  was  to  secure  fairness  and  justice  in 
the  canvass.     It  was  enacted  for  the  same  reason  that  iu  some  of  the 
States  the  judges  or  inspectors  of  election  are  required  to  be  of  dif 
ferent  parties,  as,  for  instance,  in  Louisiana,  whose  statute  requires — 

That  the  election  at  each  poll  or  polling-place  shall  he  presided  over  by  three 
commissioners  of  elections,  residents  of  the  parish  for  at  least  twelve  months  next 
preceding  the  day  of  election,  who  shall  be  selected  from  different  political  par 
ties,  and  be  of  good  standing  in  the  party  to  which  they  belong. 

The  requirement  is,  therefore,  as  I  have  already  said,  of  the  very 
essence  of  the  statute.  As  well  might  it  be  said  that  the  jury  known 
to  the  common  law  as  the  jury  de  meditate  lingua;  could  be  lawfully 
constituted  of  but  one  nationality  and  of  jurors  speaking  but  one 
language,  as  to  gay  that  the  returning  board  of  Louisiana  could  be 
lawfully  constituted  of  members  of  but  one  political  party.  For  this 
reason,  then,  even  if  the  law  creating  the  board  is  constitutional,  the 
board  itself  that  canvassed  the  votes  in  question  was  not  legally  con 
stituted,  and  its  canvass  has  no  legal  effect. 

III.  But  if  I  am  wrong  in  both  these  propositions,  yet  the  canvass 
of  that  board  must  be  rejected.     I  need  not  repeat  here  what  I  said 
in  the  Florida  case,  that  the  doings  of  any  tribunal,  however  high, 
acting  without  jurisdiction,  are  absolutely  null  and  void.    This  is 
elementary  law,  and  I  know  of  no  exception  whatever  to  the  rule. 

This  brings  us  to  the  inquiry,  had  the  returning  board  jurisdiction  to 
cast  out  the  thousands  of  votes  given  for  the  Tildeu  electors  which 
it  did  cast  out,  and  by  the  casting  out  of  which  the  majority  in  the 
State  was  reversed?  To  answer  this  question  we  must  recur  to  the 
election  law  of  that  State.  By  section  2  of  that  law  the  returning 
board  is  created.  Section  2(5  of  that  law  provides  as  follows : 

That  in  any  parish,  precinct,  ward,  city,  or  town  in  which,  during  the  time  of 
registration,  or  revision  of  registration,  or  ou  any  day  of  registration,  there  shall 
beany  riot,  tumult,  acts  of  violence,  intimidation,  and' disturbance,  bribery,  or  cor- 


-,  ---.--,,..  upt  lulHienees  shall  p. ., 

vent  or  tend  to  prevent  a  fair,  free,  peaceable,  and  full  vote  of  all  the  qualified 
electors  of  said  parish,  precinct,  ward,  city,  or  town,  it  shall  bo  the  duty  of  the  com 
missioners  of  election,  if  such  riot,  tumult,  acts  of  violence,  intimidation,  and  dis 
turbance,  bribery,  or  corrupt  influences  occur  on  the  day  of  election  or  of  the  su 
pervision  of  registration  of  the  parish,  if  they  occur  during  the  time  of  registra 
tion  or  revision  of  registration,  torn-ike  in  duplicate  and  under  oath  a  clear  and  full 
statement  of  all  the  f.octs  relating  thereto  and  of  the  effect  produced  by  such  riot, 
tumult,  acts  of  violence,  intimidation,  and  disturbances,  bribery,  or  corrupt  influ 
ences  in  preventing  a  fair,  free,  peaceable,  and  full  registration  or  election  and  of 
tho  number  of  qualified  voters  deterred  by  such  riots,  tumnlt,  acts  of  violence,  in 
timidation,  and  disturbance,  bribery,  or  corrupt  influences  from  registering  or  vot- 


retary  of  state,  one  copy  of  which,  if  made  to  the  supervisor  of  registration,  shall 
be  forwarded  by  him  to  the  returning  officers  provided  for  in  section  2  in  this  act. 


when  he  makes  the  returns  of  election  in  his  parixh.  His  copy  of  said  statement  shall 
be  so  annexed  to  his  returns  of  elections,  by  paste,  wax,  or  some  adhesive  substance,  that 
the  sime  can  be  kept  together,  and  the  other  copy  the  supervisor  of  registration  shall 
deliver  to  the  clerk  of  the  court  of  his  parish  'for  the  use  of  tho  district  attorney. 

Section  8  provides,  as  I  have  already  shown,  that  the  election  at 
each  poll,  or  polling-place,  shall  be  presided  over  by  three  commis 
sioners  of  election  of  different  politics. 

Section  13  enacts  among  other  things  that — 

The  vote  shall  be  counted  by  the  commissioners  at  each  voting  place,  immediately 
after  closing  the  election  and  without  moving  the  boxes  from  the  place  where  the 
votes  were  received,  and  the  counting  must  be  done  in  the  presence  of  any  by 
stander  or  citizen  who  may  bo  present. 


Section  43  is  aa  follows : 

That  Immediately  upon  the  close  of  the  polls  on  the  day  of  election,  the  com 
missioners  of  the  election  at  each  poll  or  voting-place  skill  proceed  to  count  the 
votes  as  provided  in  section  13  of  this  act,  and  after  they  shall  have  so  counted  the 
votes  and  made  u  list  of  the  names  of  all  the  persons  voted  for,  and  the  offices  for 
which  they  were  voted  for  and  the  number  of  votes  received  by  each,  the  number 
of  ballots  contained  in  the  box,  and  the  number  rejected,  and  the  reasons  therefor, 
duplicates  of  such  lists  shall  be  made  out,  signed,  and  sworn  to  by  the  commit* 
sionera  of  election  of  each  poll,  and  such  duplicate  lists  shall  be  delivered,  one  to 
tho  supervisor  of  registration  of  the  parish  and  one  to  the  clerk  of  the  district 
court  of  the  parish,  and  in  the  parish  of  Orleans  to  the  secretary  of  state,  by  one 
or  all  such  commissioners  in  person  within  twenty  four  hours  after  the  closing  of  the 
polls.  It  shall  be  the  duty  of  the  supervisors  of  registration,  within  twenty-four 
hours  after  the  receipt  of  all  the  returns  for  tlie  different  polling-places,  to  consolidate 
such  returns,  to  be  certified  as  correct  by  the  clerk  of  thedistrict  court,  and  for 
ward  the  consolidated  returns,  with  tho  originals  received  by  him,  to  the  return 
ing  officers  provided  for  in  section  2  of  tliis  act,  tho  said  report  and  returns  to  be 
inclosed  in  an  envelope  of  strong  paper  or  cloth,  securely  sealed,  and  forwarded 
by  mail.  He  shall  forward  a  copy  of  any  statemei^  as  to  violence  or  disturbance., 
bribery  or  corruption,  or  other  offenxes  specified  in  section  26  of  this  act,  if  any  therebe, 
together  with  all  memoranda  and  tally-Mats  used  in  making  the  count,  and  state 
ment  of  the  votes. 

From  these  provisions  it  appears — 

1.  That  if  any  statement  of  riot,  tumult,  acts  of  violence,  intimida 
tion,  and  disturbance,  bribery,  or  corrupt  influences,  are  made  by  the 
commissioners  of  election,  they  must  be  made  before  the  commis 
sioners  make  their  return  to  the  supervisor  of  registration  and  must 
accompany  that  return,  and  that  return  must  be  made  within  twenty- 
four  hours  after  the  closing  of  the  polls. 

2.  That  the  supervisors  of  registration  within  twenty-four  hours  after 
the  receipt  of  all  the  returns  for  the  different  polling-places  shall  con 
solidate  such  returns,  to  be  certified  as  correct  by  the  clerk  of  the  dis 
trict  court,  and  forward  the  consolidated  returns  with  the  originals 
received  by  him  to  the  returning  board  and  therewith  "shall  for 
ward  a  copy  of  any  statement  as  to  violence  or  disturbance,  bribery,  or  cor 
ruption,  or  other  offenses  sped/led  in  section  26  of  this  act,  if  any  there  be." 

3.  That  the  statement  of  violence,  4-c.,  shall  be  so  annexed  to  the  returns 
of  thtt  supervisor  by  paste,  wa.c,  or  some  adhesive  substance,  that  the  same 
can  be  kept  together. 

It  is  thus  apparent  that  all  statements  of  violence,  &c.,  made  by 
commissioners  of  election  must  be  made  within  twenty-four  hours 
after  the  close  of  the  polls,  and  that  all  such  statements  made  by 
supervisors  of  registration  must  be  made  not  later  than  forty-eight 
hours  after  the  close  of  the  polls,  The  reasons  for  this  requirement 
are  very  apparent  and  very  weighty.  1  he  jurisdiction  of  the  return 
ing  board  to  throw  out  votes  depends,  as  I  will  presently  show,  upon 
these  statements  being  made ;  but  it  would  obviously  open  a  wide 
door  to  fraud  if  such  statements  could  be  made  after  it  was  ascer 
tained  what  was  the  general  result  of  the  election  in  the  State,  and  an 
inducement  thereby  created  to  throw  out  the  votes  of  particular  par 
ishes  or  precincts  in  order  to  change  that  result.  And,  therefore,  the 
statute  requires  the  statements,  or  protests  as  they  are  sometimes 
called,  to  be  made  as  soon  as  possible  after  the  election — by  the  com 
missioners  within  twenty-four  hours  after  the  close  of  the  polls,  by 
the  supervisors  of  registration  not  later  than  forty-eight  hours  after 
such  closing.  The  practical  effect  of  this  provision  is  to  require  the 
statements  to  be  made  before  the  general  result  of  the  State  election 
can  be  known,  and  thus  to  avoid  any  inducement  to  make  false  and 
fabricated  statements.  But  not  only  were  the  statements  of  the  com 
missioners  or  supervisors  necessary  ;  the  third  section  of  the  act  also 
required  an  affidavit  of  three  or  more  citizens  to  the  fact  of  riot, 
tumult,  &c.  We  now  come  to  the  powers  of  the  returning  board. 
They  are  given  by  sections  2  and  3  of  the  act,  which  I  will  quote  iu 
full,  as  follows: 

SEC.  2.  That  five  persons,  to  be  elected  by  the  senate  from  all  political  parties,  shall 
be  the  returniug  officers  for  all  elections  in  the  State,  a  majority  of  whom  shall  Con 
stitute  a  quorum,  and  have  power  to  make  the  returns  of  all  elections.  In  case  of 
auy  vacancy  by  death,  resignation,  or  otherwise,  by  either  of  the  board,  then  tho 
vacancy  shall  be  filled  by  the  residue  of  the  board  of  returning  officers.  The  re 
turning  officers  shall  after  each  election,  before  entering  on  their  duties,  take  and 
subscribe  to  the  following  oath  before  a  judge  of  the  supreme  or  any  district  court : 

I,  A  B,  do  solemnly  swear  (or  affirm)  that  I  will  faithfully  and  diligently  per 
form  the  duties  of  a  returning  officer  as  prescribed  by  law  ;  that  I  will  carefully 
and  honestly  canvass  and  compile  the  statements  of  the  votes,  and  make  a  true 
and  correct  return  of  the  election  :  So  help  me  God. 

Within  ten  days  after  the  closing  of  the  election  said  returning  officers  shall  meet 
in  New  Orleans  to  canvass  and  compile  the  statement  of  votes  made  by  the  commis 
sioners  of  election,  and  make  returns  of  the  election  to  the  secretary  ot  state.  They 
shall  continue  in  session  until  such  returns  have  been  compiled.  The  presiding 
officer  shail,  at  such  meeting,  open  in  tho  presence  of  the  said  returning  officers 
the  statements  of  (he  commissioners  of  election,  and  the  said  returning  ofiicers  shall, 
from  said  statements,  canvass  and  compile  the  returns  of  the  election  in  duplicate ; 
one  copy  of  such  returns  they  shall  file  in  tho  office  of  the  secretary  of  state,  and  of 
one  copy  they  shall  make  public  proclamation  by  printing  in  the  official  journal  and 
such  other  newspapers  as  they  may  deem  proper,  declaring  the  names  of  all  persons 
and  officers  voted  for,  the  number  of  votes  for  each  person,  and  the  names  of  the  per 
sons  who  have  been  duly  and  lawfully  elected.  The  return  of  the  election  thus  made 
and  promulgated  shall  be  prima  facie  evidence  in  all  courts  of  justice  and  before 
all  civil  ofiicers,  until  set  aside  after  contest  according  to  law,  of  the  right  of  any 
person  named  therein  to  hold  and  exercise  the  office  to  which  he  shall  by  such  re 
turn  Ve  declared  elected.  The  governor  shall,  within  thirty  days  thereafter, 
issue  commissions  to  all  officers  thus  declared  elected,  who  are  required  by  law  to 
be  commissioned. 

SEC.  3.  That  in  such  canvass  and  compilation  the  returning  officers  shall  observe  the 
following  order :  They  shall  compile  first  the  statements  from  all  polls  or  voting- 
places  at  which  there  shall  have  been  a  fair,  free,  and  peaceable  registration  and 
election.  Whenever,  from  any  poll  or  voting  place,  there  shall  be  received  the  state 
ment  of  any  supervisor  of  registration  or  commissioner  of  election,  in  form  as  re 
quired  by  section  26  of  this  act,  on  affidavit  of  three  or  more  citizens,  of  any  riot,  tumult, 
acts  of  violence,  intimidation,  armed  disturbance,  bribery  or  corrupt  influences,  which 


ELECTORAL  COMMISSION. 


203 


prevented,  or  tended  to  prevent,  a  fair,  free,  and  peaceable  vote  of  all  qiialifled  electors 
entitled  to  vote  at  such  poll  or  voting-place,  such  returning  officers  shall  not  canvass, 
count,  or  compile  the  statement  of  votes  from  such  poll  or  voting-place  until  the  state 
ments  from  all  other  polls  or  voting-places  shall  have  been  canvassed  and  compiled. 
Tim  returning  officers  shall  then  proceed  to  investigate  the  statement*  of  riot,tumult, 
acts  of  violence,  intimidation,  armed  disturbance,  bribery,  or  corrupt  influences  at 
auy  such  poll  or  voting- place ;  and  if  from  the  evidence  of  xuch  statement  they  shall  be 
convinced  that  such  riot,  tumult,  actaof  violence,  intimidation,  armed  disturbance, 
bribery,  or  corrupt  influences),  did  not  materially  interfere  with  the  purity  and  froe- 
di  >m  of  the  election  at  such  poll  or  voting-place,  or  did  not  prevent  a  sufficient  number 
of  qualified  voters  thereat  from  registering  or  voting  to  materially  change  the  result 
of  thcelection,  then,  and  not  otherwise,  said  returning  officers  shall  canvass  and  com 
pile  f  ho  vote  of  such  poll  or  voting-place  with  those  previously  canvassed  and  com 
piled  ;  but  if  said  returning  officers  shall  not  be  fully  satisfied  thereof,  it  shall  be  their 
duty  to  examine  further  tosti  mony  in  regard  thereto,  and  to  this  end  they  shall  have 
power  to  send  for  persons  and  papers.  If,  after  such  examination,  the  said  return 
ing  officers  shall  be  convinced  that  said  riot,  tumult,  acts  of  violence,  intimidation, 
armed  disturbance,  bribery,  or  corrupt  influences  did  materially  interfere  with  the 
purity  and  freedom  of  the  election  at  such  poll  or  voting-place,  or  did  prevent  a 
sullicient  number  of  the  qualified  electors  thereat  from  registering  and  voting  to 
materially  change  the  result  of  the  election,  then  the  said  returning  officers  shall 
not  canvass  or  compile  the  statement  of  the  votes  of  such  poll  or  voting-place,  but 
shall  exclude  it  from  their  returns :  Provided,  That  any  person  interested  in  said 
election  by  reason  of  being  a  candidate  for  office  shall  be  allowed  a  hearing  before 
said  returning  officers  upon  making  application  within  the  time  allowed  for  the  for 
warding  of  the  returns  of  said  election. 

It  is  perfectly  obvious  from  the  provisions  of  section  3,  above 
quoted,  that  the  returning  board  has  no  power  whatever  to  reject 
auy  vote  unless  a  statement  of  riot,  tumult,  &c.,  has  been  received 
from  the  officers  of  election  as  provided  in  the  other  sections  of  the 
law  which  I  have  quoted,  that  is  to  say,  statements  made  within  the 
time,  and  in  the  manner,  and  transmitted  in  the  mode,  and  supported 
by  the  affidavits  of  three  or  more  citizens  as  provided  by  the  law.  I 
do  not  understand  this  proposition  to  be  seriously  disputed.  I  have 
lic.iud  no  argument  against  it,  and  it  seems  to  me  that  none  can  be 
made,  which  would  liavo  even  a  show  of  plausibility.  Now,  I  have 
said,  and  it  is  not  denied,  that  the  returning  board  threw  out  many 
thousand  votes  and  thereby  changed  the  result  of  the  election.  Were 
there  in  each  of  the  cases,  that  is  to  say,  in  each  of  the  precincts  or 
parishes  whose  votes  were  thus  thrown  out,  statements  of  violence, 
&c.,  made  and  supported  as  required  by  the  law  I  We  have  an  offer 
to  prove  that  in  no  instance  whatever,  that  from  no  parish  or  pre 
cinct  whatever,  was  any  such  statemeuttrausrnitted.  In  other  words, 
thai  no  sndi  statement  accompanied  any  return  transmitted  to  the 
ro.i.nrning  board  or  was  made  or  sent  from  any  precinct  or  parish  in 
l  he,  .Stale,  within  the  time  and  in  the  mode  required  by  law,  to  the 
retnruing  board.  And,  further,  that  if  any.  statements  of  violence, 
Ac.,  were  laid  before  the  returning  board  they  were  corruptly  fab 
ricate.',!  in  the  city  of  New  Orleans,  weeks  after  the  election,  and 
known  to  be  so  corruptly  fabricated  by  the  board  when  it  received 
(hfin.  If  such  are  the  facts,  and  upon  the  question  of  admissibility 
of  proof  it  must  be  assumed  that  they  are  facts^  can  there  be  any 
doubt  of  the  illegality  of  the  action  of  the  board  in  throwing  out  the 
votes  in  question  ?  Is  it  not  perfectly  plain  that  the  statements  and 
affidavits  required  by  the  statute  are  necessary  to  give*  jurisdiction  to 
the  board  to  throw  out  any  votes  whatever?  They  are  the  very 
foundation  of  the  jurisdiction,  without  whose  existence  no  power  to 
throw  out  votes  exists.  It  is  not  a  question  of  error  of  judgment  or  of 
bouajides  or  mala  fates  on  the  part  of  the  board.  A  question  of  j  urisdic- 
tion  goes  far  deeper  than  that.  The  judgment  of  the  tribunal  may  be 
ever  so  righteous  and  correct,  the  tribunal  itself  may  be  ever  so  pure 
and  enlightened,  yet  if  it  lack  jurisdiction  to  pronounce  the  decis 
ion  which  it  does  pronounce,  or  to  do  the  act  which  it  does  do,  its 
decision  and  its  act  are  absolutely  null  and  void.  It  would  be  vain 
to  say  that  the  returning  board  is  the  sole  judge  of  its  own  jurisdic 
tion.  There  is  nothing  in  the  statute  that  makes  it  such  sole  judge. 
On  the  contrary  the  statute  itself  declares  that  its  decision  shall  only 
be  prima  facie  evidence.  But  I  have  said  enough  on  this  point,  and  I 
proceed  to  consider  another. 

IV.  The  statute,  section  2,  gives  to  the  returning  board  the  power 
and  imposes  upon  it  the  duty  "  to  canvass  and  compile  the  statement 
of  votes  made  by  the  commissioners  of  election  and  make  returns  of  the 
election  to  the  secretary  of  state,"  and  provides  that  "  they  shall  con 
tinue  in  session  until  men  returns  have  been  compiled."  The  only  things, 
then,  that  the  board  had  authority  to  canvass  and  compile  were  the 
statements  of  votes  made  by  the  commissioners  of  election,  and  it  was 
upon  them  that  they  were  to  decide  and  make  returns  of  the  election  to 
the  secretary  of  state.  They  had  no  right  to  make  their  decision  and 
returns  upon  the  consolidated  statements  of  the  supervisors  of  regis- 
ti  :ii  inn.  Nowhere  in  the  statute  isauy  such  power  given  to  them.  No- 
vvhere  are  they  expressly  required  to  even  look  at  the  consolidated  re 
turns  of  the  supervisors  of  registration.  Certain  it  is  that  in  no  case 
are  they  authorized  to  found  their  decision  upon  any  such  papers. 
Now,  the  objectors  to  the  votes  of  the  so-called  Hayes  electors  offer 
to  prove  that  the  board  did  not  canvass  or  compile  a  single  return 
made  by  the  commissioners  of  election  ;  that  the  only  returns  they 
looked  at,  the  only  returns  upon  which  they  formed  their  decision 
and  made  their  return  to  the  secretary  of  state,  were  the  consolidated 
returns  sent  to  them  by  the  supervisors  of  registration.  If  this  be 
true,  then  the  board  have  not  canvassed  the  votes  as  they  were  ex 
pressly  required  by  the  statute  to  canvass  them.  Th%y  have  can 
vassed  nothing  which  the  law  required  them  to  canvass.  They  might 
as  well  have  canvassed  the  returns  of  the  election  as  published  in  the 
newspapers  and  made  their  decision  upon  them  as  to  make  it  upon 
the  supervisors'  returns  alone.  No  cauvass  known  to  the  law  of  Lou 


isiana  has  taken  place,  and  the  pretended  return  by  the  board  to  the 
secretary  of  state  is  a  fabrication  and  a  falsehood.  In  my  opinion 
evidence  to  prove  these  allegations  ought  to  be  admitted,  and,  if 
proved,  they  are  in  my  judgment  fatal  to  the  so-  called  canvass  of  the 
board. 

V.  Testimony  is  offered  to  prove  that  the  decision  of  the  returning 
board  was  procured  by  conspiracy,  forgery,  fraud,  and  bribery.     I 
think  the  testimony  admissible  for  the  reasons  I  stated  in  the  Florida 
case. 

VI.  Testimony  is  also  offered  that  two  of  the  Hayes  electors,  Brew- 
ster  and  Levissee,  were,  at  the  time  of  the  election,  officers  of  the 
United  States,  whose  appointment  as  electors  is  expressly  prohibited 
by  the  Constitution.   I  think  this  testimony  should  be  received.   The 
Constitution  makes  such  officers  ineligible  to  appointment.     It  is  not 
a  mere  ineligiblity  to  hold  an  office  or  trust,  but  it  is  ineligibility  to 
be  appointed  to  the  office  or  trust.    Nor,  if  I  am  correct  in  my  inter 
pretation  of  the  Louisiana  statutes,  is  the  matter  helped  by  the  ap 
pointment  of  Brewster  and  Levissee,  by  the  remaining  electors,  to  fill 
the  supposed  vacancies  created  by  the  non-attendance  of  Brewster 
and  Levissee.    Upon  a  careful  review  of  those  statutes  I  am  brought 
to  the  conclusion  that  they  nowhere  confer  upon  a  portion  of  the 
electoral  college  the  power  to  fill  vacancies  occurring  in  that  body. 

Mr.  THURMAN  here  read  the  provisions  of  the  statutes  relating  to 
this  point,  and  commented  upon  them  at  some  length. 

VII.  But  it  is  argued,  as  it  was  heretofore  argued  in  the  Florida 
case,  that  the  Hayes  electors  had  color  of  title  and  that,  unless  ousted 
before  they  cast  their  votes,  they  must  be  regarded  as  electors  de  facto 
and  full  effect  given  to  their  votes.     I  shall  not  repeat  what  I  said 
upon  this  proposition  in  the  Florida  case.    I  adhere  to  the  opinion  I 
then  expressed,  and  call  attention  to  the  fact  that  here  is  another 
case  in  which  it  was  impossible  to  oust  the  so-called  Hayes  electors 
by  any  judicial  proceeding  before  they  cast  their  votes.    They  were 
declared  by  the  returning  board  to  be  appointed  on  the  very  day  on 
which  they  voted,  and  it  was  manifestly  impossible  in  the  few  hours 
that  elapsed  between  that  declaration  and  the  casting  of  their  votes  to 
oust  them  by  judicial  proceedings.    To  hold  then  that  they  had  color 
of  title,  were  electors  de  facto,  and  that  Congress  is  bound  to  count 
their  votes,  is  to  declare  that  no  matter  by  what  usurpation  of  power, 
fraud,  or  corruption  a  man  may  be  declared  by  a  returning  board  to 
be  an  elector,  and  no  matter  how  ineligible  he  may  be  to  receive  an 
appointment  as  elector,  or  to  be  an  elector  dejure,  yet,  unless  he  be 
ousted  before  he  casts  his  vote  for  President,  (though  to  do  so  is  mani 
festly  impossible,)  that  vote  must  be  counted ;  and  neither  the  State 
nor  Congress  can  right  the  wrong  or  remedy  the  evil.    I  utterly  dis 
sent  from  such  a  proposition.     In  my  humble  judgment  it  is  destruc 
tive  of  the  right  of  the  States,  of  the  powers  of  Congress,  of  consti 
tutional  provisions,  of  the  principles  of  justice,  of  purity  in  elections, 
and  of  popular  rule. 

In  saying  this  I  attribute  improper  motives  to  no  one ;  it  is  not  with 
persons  but  with  judgments  that  I  am  dealing.  Of  them  and  of  what 
appears  to  me  their  probable  effect  it  is  my  right  and  duty  to  speak  ; 
and,  thus  speaking,  I  cannot  help  expressing  the  fear  that  if  this  Com 
mission  shall  decide  in  accordance  with  the  above  proposition  of  de 
facto  title,  its  decision  will  have  the  effect  of  a  proclamation  to  dis 
honest  returning  boards  to  perpetrate  whatever  villainies  their  inter 
est  or  their  inclinations  may  dictate,  with  an  absolute  certainty  that 
they  will  prove  successful. 


Remarks  of  ITIr.  ConnulsMioner  Freliiighuyseii. 

The  following  are  the  remarks  and  opinion  of  Mr.  Commissioner 
FRELINGHUYSEN. 

I.  The  important  question  to  be  decided  by  the  Commission,  as  both 
political  parties  distinctly  understood  when  the  bill  creating  the  Com 
mission  was  passed,  is  whether  the  Commission  has  jurisdiction  or 
right  to  look  behind  and  reverse  the  determination  of  that  tribunal 
which  in  the  several  States  has  by  law  been  established  finally  to  de 
cide  who  have  been  elected  presidential  electors. 

This  Commission  has  in  the  language  of  the  act  creating  it  "  the 
same  powers,  if  any,  now  possessed  for  that  purpose,  [the  purpose  of 
counting  the  electoral  vote]  by  the  two  Houses  acting  separately  or 
together." 

The  question  then  is,  what  powers  have  the  two  Houses  of  Congress 
acting  separately  or  together  when  counting  the  electoral  vote  for 
President  f  The  Commission  has  the  same  ;  no  less,  no  more. 

When  the  two  Houses  meet  to  count  the  votes  of  the  electors  for 
President  they  do  not  act  in  their  legislative  capacity,  but  as  a  tri 
bunal  upon  which  is  imposed  that  special  duty.  The  legislative 
powers  of  Congress  are  specified  in  the  Constitution,  and  counting 
the  electoral  votes  is  not  among  them.  The  President  of  the  United 
States,  whose  concurrence  is  essential  to  all  legislative  action,  has 
no  part  in  this  procedure.  The  two  Houses  in  counting  the  vote 
not  only  have  no  legislative  power,  but  also  have  none  of  those  pow 
ers  so  constantly  used,  and  which  only  exist  as  and  because  they  are 
incident  to  the  legislative  power;  such  as  sending  committees  of 
Congress  to  investigate  the  condition  of  affairs  in  different  parts  of 
the  country,  that  Congress  may  possess  information  on  which  to  base 
future  legislation.  Neither  has  Congress  in  counting  the  votes 


204 


ELECTORAL  COMMISSION. 


such  power  to  investigate  by  committees  or  otherwise  the  election 
of  presidential  electors  as  it  possesses  for  the  purpose  of  ascertaining 
whether  its  members  have  been  fairly  elected,  because  while  the 
Constitution  expressly  declares  that  "  each  House  shall  be  judge  of 
the  elections,  returns,  and  qualifications  of  its  own  members,"  it  no 
where  declares,  either  expressly  or  by  implication,  that  Congress 
shall  be  such  judges  as  to  the  election  of  presidential  electors  ;  and 
this  clear  provision  conferring  the  power  to  investigate  elections  for 
Senators  and  Representatives,  and  the  absence  of  any  such  provision 
as  to  electors,  is  significant  and  emphatic  of  the  truth  that  no  such 
power  exists  as  to  electors.  Neither  do  the  two  Houses  possess  the 
judicial  power  belonging  to  a  court  when  trying  the  title  to  an  of- 
lice,  because  by  the  Constitution  the  judicial,  legislative,  and  exec 
utive  powers  of  the  Government  are  carefully  kept  separate  and  dis 
tinct.  The  legislative  branch  possesses  no  judicial  power  excepting 
in  the  two  specified  cases  of  judging  of  the  election  of  members  of 
Congress  and  in  cawes  of  impeachment.  The  two  Houses  when  they 
meet  to  count  the  votes  do  not  assemble  as  a  joint  convention,  but  as 
two  distinct  Houses,  and  separate  to  vote  on  any  question  that  arises; 
and  the  very  nature  of  this  special  tribunal,  consisting  of  two  distinct 
Houses,  is  inconsistent  with  having  a  jury,  with  having  confront 
ing  witnesses;  there  are  no  parties,  and  there  is  nothing  about  the 
procedure  that  is  judicial. 

What  power,  then,  do  the  two  Houses  of  Congress  possess?  Just 
that  power  named  in  the  Constitution  when  it  says,  "the  votes  shall 
then  be  counted."  And  what  votes  are  then  to  be  counted  f  Surely 
not  the  votes  that  have  been  given  for  the  presidential  electors  by 
some  seven  millions  of  voters  over  a  vast  continent,  but  the  votes 
cast  by  the  presidential  electors  for  President  and  Vice-President 
which  the  Constitution  provides  shall  be  certified  to  the  President  of 
the  Senate  and  by  him  opened  in  the  presence  of  the  two  Houses. 

The  two  Houses  in  counting  the  votes  of  the  electors  may  de 
termine  whether  the  State  is  in  such  relations  to  the  Federal  Gov 
ernment  as  to  be  entitled  to  vote ;  whether  the  votes  were  cast  on 
the  day  prescribed  by  tbestatutesof  the  United  States;  whether  the 
governor's  certificate  is  genuine  ;  whether  that  certificate  is  true  in 
its  statement  as  to  who  have  been  appointed  electors  by  the  State ; 
but  the  truth  of  the  statement  of  the  governor's  certificate  in  this  re 
gard  is  to  be  decided  only  by  looking  to  the  determination  of  the  tri 
bunal  which  the  laws  of  the  State  say  shall  finally  determine  that 
fact,  and  not  by  a  canvass  of  the  popular  vote  of  the  State.  The  two 
Houses  may  inquire  into  any  thing  consistent  with  the  nature  of  the 
procedure,  and  which  the  Constitution  has  not  devolved  on  the  States 
to  regulate. 

The  reasons  that  the  Constitution  does  not  either  expressly  or  by 
implication  provide  or  intend  that  Congress  shall  inquire  into  or  can 
vass  the  election  of  presidential  electors  are  apparent. 

The  framers  of  the  Constitution,  as  its  history  shows,  did  first  de 
cide  that  the  President  and  Vice-President  should  be  chosen  by  Con 
gress  ;  but  on  full  debate  and  mature  deliberation  they  saw  the 
evil  of  placing  one  co-ordinate  branch  of  Government  under  the 
control  of  another — the  executive  under  the  control  of  the  legisla 
tive  branch — and  they  determined  that,  except  to  prevent  a  failure 
to  elect,  (in  that  event  the  House  voting  by  (States  should  elect,)  Con 
gress  should  have  nothing  to  do  with  the  choice  of  President  or  Vice- 
President.  The  Constitution  casts  that  duty  on  the  States.  It  says 
that  each  State,  large  or  small,  shall  have  two  votes,  and  also  as 
many  additional  votes  as  it  has  Representatives,  and  that  each  State 
shall  appoint  the  electors  in  such  manner  as  the  Legislature  thereof 
shall  direct.  Under  this  power,  the  Legislature  might  direct  that  the 
electors  should  be  appointed  by  the  Legislature,  by  the  executively 
the  judiciary,  or  by  the  people.  In  the  earliest  days  of  the  Republic, 
electors  were  appointed  by  the  Legislatures.  In  Pennsylvania  they 
were  appointed  by  the  judiciary.  Now  in  all  States  except  Colorado 
they  are  appointed  by  the  people.  And  in  contemplation  of  the  Con 
stitution  the  electors  were  not  as  the  agents  of  a  party  to  elect,  but 
as  independent  men,  responsible  to  no  one,  were  to  select  the  Presi 
dent  and  Vice-President. 

More  completely  to  separate  Congress  from  all  connection  with  the 
election  of  President  and  Vice-President,  the  Constitution  provides 
that  no  Senator  or  Representative  or  person  holding  an  office  of  trust 
or  profit  under  the  United  States  shall  be  appointed  an  elector.  And 
it  would  be  an  anomaly  indeed  if,  after  the  Constitution  had  thus 
carefully  excluded  Congress  from  any  intermeddling  with  the  choice 
of  the  President,  further  than  to  ascertain  who  the  State  said  it  had 
appointed,  that  yet  Congress  had  absolute  control  over  the  whole  sub 
ject,  and  could  while  engaged  in  this  summary  proceeding  of  count 
ing  the  vote  adjudge  and  determine  who  should  be  President.  If  the 
claim  now  put  forth  was  to  reverse  the  decision  of  New  York  or  Massa 
chusetts  as  to  who  had  been  appointed  the  electors  of  those  States  re 
spectively,  the  claim  would  hardly  secure  a  patient  hearing;  but  the 
public  have  become  so  accustomed  to  disorderly  proceedings  in  some 
of  the  Southern  States,  that  the  determinations  of  those  States  do  not 
challenge  full  respect,  and  yet  the  law  is  the  same  as  to  all  the  States. 

The  impracticability  of  the  two  Houses  when  met  to  count  the  votes 
of  the  presidential  electors  going  behind  the  final  decision  of  the 
States,  and  attempting  to  find  out  which  set  of  electors  in  very  truth 
have  received  the  most  votes,  is  a  conclusive  argument  against  the 
existence  of  any  such  power  in  the  two  Houses.  If  Congress  enters 


upon  the  work  of  investigating  which  of  two  or  more  sets  of  electors 
have  been  chosen,  it  must  do  its  work  thoroughly,  or  it  does  gross  in 
justice.  It  would  not  answer  for  Congress  to  examine  the  returns  of 
the  county  canvassing  boards  for  the  purpose  of  reversing  the  decision 
of  the  State  canvassing  board,  and  then  refuse  to  examine  the  returns 
of  the  precincts  when  invited  to  do  so,  for  the  purposes  of  showing  that 
the  county  boards  were  in  error.  It  would  not  answer  for  the  two 
Houses  to  examine  the  state  of  the  vote  of  Florida,  Louisiana,  and  South 
Carolina  for  the  purpose  of  showing  that  the  Hayes  electors  were  not 
elected,  and  then  refuse  to  examine  the  vote  of  Mississippi,  Alabama, 
and  Georgia,  when  so  requested,  for  the  purpose  of  showing  that  the 
Tilden  electors  were  not  chosen.  How,  by  possibility,  could  this  in 
vestigation  into  the  popular  vote  be  effected  ?  There  are  probably 
seven  millious  of  votes.  On  the  first  Wednesday  of  December  the 
electors  give  their  votes  as  required  by  the  Constitution  by  ballot,  and 
that  imports  secrecy.  The  list  of  the  votes  is  then  transmitted  sealed 
(secrecy  again)  to  the  President  of  the  Senate,  and  these  lists  are 
first  to  be  opened  when  the  two  Houses  meet  to  count  the  votes.  Ac 
cording  to  the  theory  of  the  Constitution  no  one  is  to  know  until 
the  two  Houses  are  thus  assembled  what  has  been  the  action  of  the 
electoral  college.  And  to  claim  that  in  the  February  before  the  4th  of 
March,  when  the  President  is  to  )>e  inaugurated,  the  two  Houses  are 
to  go  behind  the  final  determinations  of  the  States  and  make  a  can 
vass  to  find  out  the  very  truth  as  to  which  set  of  electors  have  the 
majority  of  lawful  votes  is  an  absurdity,  because  an  impossibility. 
An  investigation  by  the  two  Houses  behind  the  final  determination 
of  the  State  would  lead  to  anarchy  and  to  nothing  better. 

It  is  urged  that  without  such  investigation  by  the  two  Houses  the 
President  may  bo  elected  by  fraud.  Then  change  the  laws.  It  would, 
however,  be  found  that  the  opportunity  for  fraud  would  be  multi 
plied  many  fold  if  the  regulation  of  the  election  was  transferred  from 
the  States  to  the  General  Government. 

It  is  said  that  if  we  take  as  final  the  determination  of  the  State 
board  the  result  may  be  that  while  one  citizen  has  a  popular  major 
ity  another  citizen  will  be  inaugurated  President.  Our  Government 
is  not  that  of  a  mob.  It  is  not  majorities,  but  legal  majorities  that 
control.  Under  our  system  many  complex  functions  are  invoked  to 
obtain  an  expression  of  the  constitutional  will.  Thus  Delaware  cast 
one  electoral  vote  for  every  40,000  inhabitants,  and  New  Jersey  only 
one  electoral  vote  for  every  110,000  inhabitants.  The  democratic  ma 
jority  in  New  York  is  50,000,  and  the  State  government  by  the  same 
election  is  republican.  We  have  agreed  to  the  Constitution,  and  if  the 
expression  of  the  will  of  the  people  is  according  to  that  instrument  it 
is  right.  The  complaint  that  one  possibly,  and  I  do  not  say  probably, 
having  a  popular  majority  will  not  be  inaugurated,  seems  a  pretense. 

I  conclude  that  a  State  is  as  sovereign  in  its  right  finally  to  de 
termine  who  has  been  elected  presidential  electors  as  it  is  to  deter 
mine  Avho  have  been  elected  legislators  or  governor,  or  to  decide 
what  shall  be  the  punishment  of  crime  within  its  borders,  or  what 
law  shall  regulate  the  transfer  of  property  ;  and  as  this  nation  ex 
tends  and  grows  the  wisdom  of  making  the  States  the  final  judges 
in  this  and  many  other  things  will  become  year  by  year  more  ap 
parent. 

I  am  confirmed  in  the  correctness  of  my  conclusions  by  the  im 
pressions  of  distinguished  public  men  who  differ  from  me  in  political 
views,  and  even  by  my  own  opinion  expressed  in  the  Senate  when 
the  question  had  not  possibly  any  partisan  significance. 

On  the  10th  of  February,  1877,  when  this  question  was  before  the 
country,  Chief-Justice  Church,  of  the  court  of  appeals  of  the  State  of 
New  York,  made  this  expression  in  a  letter  which  he  gave  to  the 
public : 

I  have  always  expressed  the  opinion  that  the  authentication  of  the  election  of 
presidential  electors  according  to  the  laws  of  each  State  is  liual  and  conclusive,  and 
that  there  exists  no  power  to  go  behind  them. 

And  Senator  Bayard,  on  the  25th  February,  1875,  when  the  Senate 
had  under  consideration  the  bill  to  provide  for  counting  the  votes  for 
President  and  Vice-President,  after  reading  the  twelfth  amendment 
to  the  Constitution  which  makes  provision  for  counting  the  electoral 
vote,  said : 

There  is  nothing  in  this  language  that  authorizes  either  House  of  Congress  or 
both  Houses  of  Congress  to  interfere  with  the  decision  which  has  been  made  by  the 
electors  themselves  and  certified  by  them  and  sent  to  the  President  of  the  Semite. 
There  is  no  pretext  that  for  any  cause  whatever  Congress  has  any  power,  or  all 
the  other  departments  of  the  Government  have  any  power,  to  refuse  to  receive  and 
count  the  result  of  the  action  of  the  voters  in  the  States  in  that  election,  as  certified 
by  the  electors  whom  they  have  chosen.  That  questions  may  arise  whether  that 
choice  was  made,  that  questions  may  arise  whether  that  election  was  properly  held 
or  whether  it  was  a  free  and  fair  election,  is  undoubtedly  true;  but  there  is  no 
machinery  provided  for  contest,  and  no  contest  seems  to  have  been  anticipated  on 
this  subject.  It  is  camm  omixsus,  intentionally  or  otherwise,  upon  the  part  of  those 
who  framed  this  Government,  and  wo  mus  ttake  it  as  it  is  ;  and  if  there  bo  neces 
sity  for  its  amendment,  for  its  supplement,  that  must  be  tbe  action  of  the  American 
people  in  accordance  with  the  Constitution  itself;  and  I  am  free  to  say  that  some 
amendment  on  this  subject  should  be  had. 

Senator  THURMAN  in  the  Senate  on  January  7, 1873,  when  the  reso 
lution  authorizing  an  investigation  as  to  whether  the  election  for 
President  and  Vice-President  had  been  conducted  in  Louisiana  and 
Arkansas  in  Accordance  with  the  laws  of  the  United  States,  expressed 
views  similar  to  those  above  quoted  from  Mr.  BAYARD'S  speech. 

It  is  proper  to  state  that  both  of  these  distinguished  Senators  stated 
these  views  as  a  matter  of  first  impressions,  reserving  their  final  judg- 


ELECTORAL  COMMISSION. 


205 


me.nt  on  the  question;  but  first  impressions  with  minds  as  well  fur 
nished  as  theirs  are  of  ten  more  valuable  than  more  carefully  considered 
conclusions. 

In  the  debate  of  January  7,  1873, 1  had  the  honor  to  follow  the 
Senator  from  Ohio,  [Mr.  THURMAX,]  and  said : 

There  seems  to  be  no  way  provided  by  Congress,  and  no  way  I  believe  that  Con 
gress,  as  the  Constitution  stands,  can  provide  to  try  the  title,  of  an  elector  to  his 
office.  *  *  *  I  take  it  that  the  entire  control  over  the  manner  of  appointing  the 
electors  is  one  of  the  reserved  rights  of  the  States,  that  they  never  surrendered 
the  right  of  determining  who  should  be  these  electors.  The  States  possess  the 
right  of  determining  who  shall  be  elected  and  who  has  been  elected  as  entirely  as 
the  United  States  Government  has  the  right  to  decide  who  shall  represent  the 
country  in  England. 

These  views  I  had  occasion  to  express  again  in  January  last  when 
the  bill  creating  this  Electoral  Commission  was  before  the  Senate, and 
when  I  had  no  idea  of  being  a  member  of  this  Commission,  and  I  have 
seen  no  reason  for  changing  those  views. 

And,  as  still  further  authority  to  show  that  the  final  decision  of  the 
question  whether  electors  have  been  appointed  is  with  the  States,  let 
me  call  attention  to  the  fact  that  those  who  aided  in  framing  and 
those  who  lived  at  the  time  of  the  adoption  of  the  Constitution  did 
not  consider  that  Congress,  even  when  acting  with  the  President  as 
a  Legislature,  had  the  constitutional  power  to  pass  a  law  under  which 
the  two  Houses  of  Congress,  or  any  commission  created  by  the  Fed 
eral  Legislature  could  inquire  into  the  number  of  votes  by  which 
electors  have  been  elected. 

This  whole  subject  was  thoroughly  considered  in  1800,  and  a  bill 
passed  both  Houses  of  Congress,  but  amendments  not  being  agreed  to, 
did  not  become  a  law.  That  bill  provided  that  a  grand  committee,  in  its 
organization  not  unlike  this  Commission,  might  make  inquiry  and  de 
cide  as  to  everything  relative  to  the  election  of  President  and  Vice- 
President  over  which  the  Constitution  gave  the  General  Government 
jurisdiction,  but  did  not  provide  for  any  investigation  or  decision  as 
to  the  procedure  which  the  Constitution  has  devolved  upon  the  States. 
It  provided  that  the  grand  committee  should  examine  and  decide ;  (1) 
as  to  the  qualifications  of  persons  voted  for  as  President  and  Vice- 
President ;  (2)  as  tb  the  constitutional  qualification  of  electors ;  (3) 
whether  the  appointment  of  the  electors  was  authorized  by  the  State 
Legislature ;  (4)  whether  the  mode  prescribed  by  the  State  Legis 
lature  had  been  followed  ;  (5)  whether  improper  means  had  been  used 
to  influence  the  votes  of  the  electors ;  (0)  as  to  the  truth  of  the  returns 
of  the  electors;  (7)  as  to  the  time  and  place  of  giving  their  votes. 
And  that  is  all.  Congress  did  not  assume  that  it  had  any  consti 
tutional  right  to  investigate  or  review  the  vote  on  which  the  electors 
had  been  appointed,  further  than  to  see  that  it  was  according  to  the 
mode  prescribed  by  the  States.  On  the  contrary,  fearing  that  the 
very  claim  which  is  now  set  up,  of  making  an  investigation  as  to 
whether  the  electors  had  been  duly  elected  in  the  States,  might  be  in 
ferred,  they  guarded  against  such  inference  by  providing  that  the 
grand  committee  should  "  not  draw  in  question  the  number  of  votes 
on  which  any  elector  should  have  been  appointed." 

If  Congress  when  acting  in  its  sovereign  legislative  capacity  had 
not  the  constitutional  right  to  confer  on  the  two  Houses  of  Congress 
when  performing  the  subordinate  duty  devolved  on  them  of  counting 
the  vote,  or  upon  the  grand  committee  the  power  "  to  draw  in  ques 
tion  the  number  of  votes  on  which  any  elector  should  have  been  ap 
pointed,"  a  fortiori  the  two  Houses  of  Congress,  or  this  Commission 
without  such  legislation  do  not  possess  such  power. 

Thus  authority  fortifies  the  conclusion  that  the  two  Houses  of  Con 
gress,  and  consequently  this  Commission,  cannot  go  behind  or  reverse 
the  determination  as  to  who  has  been  appointed  electors  as  made  by 
the  lawful  tribunal  of  the  State. 

It  has  been  said  that  although  the  Constitution  does  not  give  to 
Congress  the  right  to  question  the  determination  of  the  tribunal 
which  by  the  laws  of  the  State  is  finally  to  decide  who  has  been  elected 
an  elector,  that  in  this  case  the  offer  is  made  to  prove  fraud  in  that 
final  decision  of  the  State  tribunal;  that  we  must  assume  that  the 
otfer  is  made  in  good  faith,  and  that  fraud  vitiates  and  renders  void 
everything.  It  is  true  that  fraud  when  proven  before  a  tribunal  hav 
ing  jurisdiction  over  the  question  in  controversy  will  vitiate  all  trans 
actions  except  such  as  are  judicial  or  legislative.  Without  raising 
the  inquiry  whether  the  counting  the  votes  is  a  procedure  thatcomes 
within  the  exceptions,  I  ask  whether  it  was  ever  heard  that  a  charge 
of  fraud  made  before  a  tribunal  that  otherwise  had  no  jurisdiction 
over  the  question  at  issue  conferred  jurisdiction  to  try  the  question  ? 
Does  fraud  give  power  ?  I  knew  that  it  rendered  void,  but  not  that 
it  created.  Can  it  be  claimed  that  while  under  our  system  of  gov 
ernment  the  determination  as  to  who  has  been  appointed  an  elector 
is  with  the  States  and  not  with  the  Federal  Government,  the  alle 
gation  of  fraud  is  potential  in  changing  onr  system,  and  transfers  the 
decision  of  the  question  as  to  who  has  been  elected  elector  from  the 
State  to  the  Federal  Government  I  I  think  not.  « 

II.  The  Constitution  provides  that  "no  Senator  or  Representa 
tive,  or  person  holding  an  office  of  trust  or  profit  under  the  United 
States,  shall  be  appointed  an  elector,"  and  it  is  claimed  that  some  hold 
ing  such  offices  were  appointed  electors  and  were  therefore  ineligible, 
and  that  their  votes  should  not  be  counted. 

The  real  object  of  this  provision  of  the  Constitution  ceased  when 
the  electors  came  to  exercise  no  volition  in  choosing  a  President  and 
became  the  mere  agents  of  a  party,  but  still  the  Constitution  stands 
and  must  be  enforced  if  it  can  be.  The  provision,  I  think,  is  equiva 


lent  to  saying  that  no  one  who  holds  an  office  of  trust  or  profit  under 
the  United  States  shall  be  an  elector ;  and  no  one  has  been.  In  every 
instance  the  elector  who  happened  to  hold  an  office  of  trust  or  profit 
under  the  United  States  resigned  such  office  before  assuming  to  per 
form  the  functions  of  his  office  as  an  elector,  or  resigned  as  an  elector 
and  another  was  according  to  law  appointed  in  his  stead. 

To  my  mind  it  is  a  sufficient  answer  to  all  the  charges  of  inel- 
igibility  against  electors  that  the  provision  of  the  Constitution  on 
which  the  charges  are  based  does  not  execute  itself,  and  no  law 
lias  been  enacted  to  execute  it.  It  is  said  that  other  provisions  of 
the  Constitution  execute  themselves.  I  think  not.  Courts  are  es 
tablished  by  law,  where  the  provisions  can  be  vindicated,  but  this 
requirement  of  the  Constitution  cannot  be  enforced  in  the  courts  after 
the  count  before  the  two  Houses  has  commenced,  and  after  the  elect 
ors  have  voted.  Neither  can  the  two  Houses  stop  the  count  for  the 
purpose  of  ascertaining  whether  some  one  or  more  of  the  three  hun 
dred  and  sixty-nine  electors,  thousands  of  miles  away,  did  or  did  not 
thirty  years  ago  accept  a  commission  as  a  United  States  commissioner 
or  other  unimportant  office  which  he  had  forgotten  he  held,  and  of 
which  his  constituency  were  ignorant.  The  Houses  of  Congress  have 
no  machinery  enabling  them  to  carry  on  such  an  investigation,  and 
if  a  law  should  be  passed  to  enforce  the  provision  of  the  Constitution 
referred  to,  the  penalty  for  its  infraction  would  not  be  that  the  State 
should  be  deprived  of  its  vote.  And  further,  the  functions  of  the 
office  of  elector  are  required  by  law  to  be  performed  and  in  fact  were 
discharged  on  the  first  Wednesday  of  December  last,  and  if  the 
elector  were  subsequently  declared  ineligible  such  decision  would  not 
invalidate  the  act  performed  on  the  day  fixed.  If  a  State  constitu 
tion  required  that  a  sheriff  should  have  a  freehold  estate  worth 
$5,000,  and  if  after  he  had  performed  the  duties  of  his  office  for  a 
year  he  was  on  quo  ivarranto  ousted  because  of  its  being  proven  that 
he  had  no  estate  of  any  kind  at  any  time,  no  one  would  claim  that 
his  acts  as  de  facto  sheriff  were  invalid.  The  acts  of  the  State  gov 
ernments  in  the  States  formerly  in  rebellion,  except  those  acts  that 
were  in  hostility  to  the  United  States  Government,  have  been  recog 
nized  by  the  Supreme  Court  of  the  United  States  as  valid,  because 
they  were  the  acts  of  de  facto  governments.  I  think  there  is  nothing 
in  the  objection  founded  on  ineligibility. 

III.  Should  the  votes  for  President  and  Vice-President,  given  by 
what  are  called  the  Hayes  electors,  in  Florida,  Louisiana,  OREGON,  and 
South  Carolina,  duly  authenticated  by  those  States  respectively,  be 
counted  ? 

The  Legislature  of  FLORIDA,  as  authorized  by  the  Constitution  of 
the  United  States,  directs  that  the  presidential  electors  shall  be  ap 
pointed  by  the  lawful  voters  of  that  State  voting  at  their  respective 
precincts;  that  the  inspectors  of  election  at  those  precincts  shall  re 
port  the  result  to  the  county  board  of  canvassers  ;  and  in  the  act  of 
February  27,  1872,  it  is  enacted  that  the  board  of  county  canvassers 
shall  report  to  a  board  of  State  canvassers,  who  "  shall  proceed  to  can 
vass  the  returns  of  such  election,  and  determine  and  declare  who  shall 
have  been  elected,  as  shown  by  said  returns.  If  any  such  returns 
shall  be  shown  or  shall  appear  to  be  so  irregular,  false,  or  fraudulent 
that  the  board  shall  be  unable  to  determine  the  true  vote  for  any 
such  officer  or  member,  they  shall  so  certify,  and  shall  not  include  such 
return  in  their  determination  and  declaration." 

This  board  of  State  canvassers,  which  was  to  that  end  created,  made 
its  final  determination  and  then  declared  that  the  Hayes  electors  had 
been  elected  by  about  nine  hundred  majority ;  and  these  electors  on 
December  6,  1876,  cast  their  vote  for  Rutherford  B.  Hayes.  All  oi 
which  is  certified  to  us  by  the  electors  and  by  the  undisputed  gov 
ernor  of  Florida.  On  this  statement,  the  votes  of  the  electors  should 
be  counted  for  Governor  Hayes. 

Aud  what  reasons  are  urged  against  their  being  so  counted  I  They 
are  these :  The  attorney -general  of  Florida  was  by  law  a  member  of 
the  State  board  of  canvassers,  and  certifies  that  the  Tilden  and  not 
the  Hayes  electors  were  duly  appointed.  But  it  is  clear  that  his  cer 
tificate  has  in  law  no  more  validity  than  a  letter  from  any  other  cit 
izen  of  Florida  would  have,  and  cannot  be  recognized  by  this  Com 
mission. 

Another  reason  urged  why  the  vote  of  the  Hayes  electors  should 
not  be  counted  is,  that  after  the  Hayes  electors  had  cast  their  votes 
on  December  6,  1876,  and  about  the  1st  of  January,  1877,  Mr.  George 
F.  Drew  succeeded  Governor  Stearns  as  governor  of  Florida.  And  on 
the  26th  of  January,  1877,  fifty  days  after  the  electors  of  Florida  had 
and  must,  if  ever,  have  cast  their  votes,  Governor  Drew  certified  that 
the  Tilden  electors  had  been  elected.  It  is  he  who  is  the  governor 
of  Florida  when  the  electors  were  appointed  who  must  by  law  certify 
to  their  appointment,  and  not  he  who  is  elected  after  they  have  been 
appointed  and  have  discharged  all  their  duties.  Governor  Drew  bases 
the  declaration  of  his  certificate  that  the  Tilden  electors  had  been  ap 
pointed  on  the  adjudication  of  the  court  of  Florida  to  that  effect, 
given  on  a  proceeding  in  the  nature  of  a  quo  warranto  on  the  25th  of 
January,  1877.  If  a  State  court  under  a  quo  warranto,  fifty  days  after 
the  electors  have  according  to  the  Constitution  and  laws  of  the  United 
States  cast  their  vote,  can  invalidate  the  acts  of  the  electors,  then 
the  State  courts  can  control  the  succession  to  the  Presidency  of  the 
United  States.  It  would  be  strange,  indeed,  if  this  Commissiou  should 
disregard  the  determination  of  the  State  board  of  canvassers,  which 
the  laws  of  the  State  say  shall  determine  and  declare  who  have  been 
appointed  electors,  and  should  be  bound  to  adopt  the  conclusions  of 


206 


ELECTORAL  COMMISSION. 


a  State  conrt  clothed  with  no  such  power.  The  Commission  should, 
in  my  opinion,  count  the  vote  of  Florida  for  Rutherford  B.  Hayes. 

The  laws  of  the  STATE  OF  LOUISIANA  as  to  the  election  of  electors 
are  similar  to  those  of  Florida.  The  returning  officers,  consisting  of 
five  persons  appointed  by  the  State  senate  from  all  political  parties, 
constitute  the  tribunal  finally  to  determine  who  has  been  elected,  and 
have  authority  to  reject  returns  from  any  place  in  which  they  are 
satisfied  that  by  reason  of  fraud  or  violence  there  has  not  been  a  fail- 
election. 

It  has  been  claimed  that  these  returning  officers  have  improperly 
rejected  certain  returns  so  as  to  change  the  result  in  the  State. 

It  has  been  sufficiently  shown  that  neither  the  two  Houses  of  Con 
gress  or  this  Commission  have  jurisdiction  to  go  behind  and  reverse 
the  determination  of  the  tribunal  which  the  State  has  said  shall 
finally  decide  who  has  been  elected,  and  that  the  allegation  of  fraud 
in  the  action  of  the  returning  board  does  not  give  j  urisdiction  over 
the  subject  to  the  two  Houses  of  Congress  or  to  this  Commission. 

It  has  been  questioned  whether  there  were  sufficient  laws  in  Louisi 
ana  to  authorize  the  election  of  electors.  It  has  been  shown  by 
others  that  the  objection  is  not  well  taken.  The  revision  of  the  laws — 
the  digest  of  the  laws — the  courts  of  the  State,  and  all  the  people 
properly  treat  their  election  laws  as  sufficient,  and  we  while  engaged 
in  the  summary  process  of  counting  the  vote  may  so  accept  it. 

It  is  said  that  affidavits  of  fraud  and  violence  were  not  filed  within 
the  time  fixed  by  the  statutes  of  the  State,  and  that  consequently  the 
returning  officers  had  DO  jurisdiction  to  decide  whether  certain  returns 
should  or  should  not  be  rejected.  There  may  have  been  abundant 
reasons  why  the  affidavits  were  not  filed  within  the  prescribed  time, 
and  of  that  the  returning  officers  were  to  judges.  The  provision  as  to 
time  is  at  best  only  directory.  The  affidavits  were  not  jurisdiction;)! ; 
if  they  were,  Louisiana  for  the  want  of  the  affidavits  might  have 
been  without  any  determination  of  the  result  of  the  election,  and 
either  anarchy  must  have  followed  or  the  result  not  have  been  ac 
cording  to  the  truth  as  intended  by  the  statute. 

It  is  urged  also  that  the  laws  of  Louisiana  require  that  the  final 
tribunal,  called  in  this  State  "  returning  officers,"'should  consist  of 
five  members,  and  of  different  political  opinions,  and  that  in  fact  it 
consisted  of  only  four  members  and  these  all  of  the  same  political 
opinion. 

If  the  provision  that  the  board  must  consist  of  those  having  differ 
ent  political  opinions  were  constitutional,  which  I  much  doubt,  the 
requirement  is  clearly  only  directory.  It  can  hardly  be  claimed  that 
if  one  member  changed  his  opinion  in  a  night  the  determination  of 
the  board  thereby  became  void,  and  that  the  confusion  therefrom 
resulting  must  be  accepted. 

If  the  board  should  have  consisted  of  five  members,  the  fact  that 
there  were  only  four  does  not  invalidate  its  decisions;  the  law  says 
a  majority  shall  be  a  quorum.  The  Supreme  Court  of  the  United 
States  consists  of  nine  judges,  but  it  does  not  cease  to  be  a  court  be 
cause  by  death  or  resignation  there  are  only  eight.  It  is  seldom  that 
a  board  of  directors  is  full  but  no  one  ever  questioned  the  authority 
of  the  board  on  that  account.  If  the  fifth  member  of  the  canvass 
ing  board  was  not  appointed  from  unworthy  motives  all  will  con 
demn  it,  but  no  one  would  say  that  the  penalty  for  this  impropriety 
is  that  the  State  shall  lose  its  vote. 

It  has  been  urged,  too,  that  the  votes  of  Louisiana  should  not  be 
counted,  because,  as  alleged,  it  had  no  State  government  and  Kel 
logg  who  signed  the  electors'  certificates  was  not  in  truth  the  gov 
ernor  of  that  State.  And  yet,  in  November  and  December,  when  the 
electors  were  appointed  and  when  the  electoral  vote  was  cast,  a  State 
government  with  Kellogg  as  governor  existed  by  the  consent  of  both 
political  parties,  was  represented  in  both  Houses  of  Congress,  had 
been  recognized  by  every  branch  of  Government,  and  regulated  the 
public  affairs  of  society  in  that  State. 

I  see  no  good  reason  why  the  vote  of  Louisiana,  as  determined  by 
the  State  returning  officers  and  as  certified  by  the  recognized  gov 
ernor  and  as  cast  by  the  Hayes  electors,  should  not  be  counted. 

There  are  returned  here  ironi  the  STATE  OF  OREGON  two  sets  of 
electoral  votes,  one  from  Cartwright,  Odell,  and  Watts,  certifying  that 
they  had  cast  their  votes  for  Governor  Hayes ;  the  other  from  Cro- 
nin,  Miller,  and  Parker,  certifying  that  they  had  cast  two  votes  for 
Governor  Hayes  and  one  vote  for  Governor  Tilden.  The  question  is 
which  is  the  true  return.  I  am  satisfied  the  former  is,  and  for  these 
two  reasons : 

First.  By  the  sixtieth  and  thirty-seventh  sections  of  the  election 
law  of  Oregon,  it  is  made  the  duty  of  the  county  clerk  to  send  an  ab 
stract  of  the  votes  cast  in  the  county  for  electors  to  the  secretary  of 
state,  and  it  is  made  his  duty,  in  the  presence  of  the  governor,  to  can 
vass  the  votes.  The  secretary  of  state  is  the  final  and  sole  canvass 
ing  officer. 

To  ascertain  who  are  the  true  presidential  electors  from  Oregon, 
we  must  discover  who  the  tribunal  that  the  laws  of  Oregon  enact 
shall  finally  determine  thatqestion  has  adjudged  to  be  such  electors  ; 
that  adjudication  may  be  certified  to  us  by  the  governor  or  be  made 
known  to  us  by  the  record  of  such  final  determination.  The  gov 
ernor's  certificate  is  only  valuable  as  evidence  of  what  the  final  tribu 
nal  has  adjudicated,  and  may  have  been  forged,  or  may  from  design  or 
mistake  be  untrue.  The  two  Houses  of  Congress,  or  this  Commission, 
will  be  controlled  by  the  State's  decision  as  to  who  has  been  elected. 


In  this  case  the  canvass  of  the  secretary  of  state,  which  is  the  final  de 
termination  of  the  question  as  to  who  have  been  elected  electors,  haa 
been  sent  in  the  package  containing  the  list  of  votes  cast  for  President 
and  Vice-President,  and  the  electoral  bill  haa  given  us  authority  to 
consider  papers  so  presented  to  us,  but  without  such  specific  author 
ity,  we  certainly  would  look  to  a  record  that  is  controlling. 

'The  canvass  of  the  secretary  of  state,  the  State's  final  determina 
tion,  being  thus  before  us,  shows  that  Cartwright,  Odell,  and  Watts 
received  15,200  votes,  being  a  thousand  more  votes  than  were  received 
by  any  other  candidates  for  electors.  And  the  fortieth  section  of  the 
election  laws  of  Oregon  provides  as  follows,  namely: 

That  in  all  elections  in  this  State  the  person  having  the  highest  number  of  votes 
for  any  office  bhall  be  deemed  to  have  been  elected. 

I  am  at  a  loss  to  see  how  this  Commission  can  do  otherwise  than 
deem  Cartwright,  Odell,  and  Watts  elected  electors. 

Second.  By  the  very  showing  of  those  who  claim  one  vote  from 
Oregon  for  Governor  Tilden,  he  is  not  entitled  to  it.  Watts,  one  of 
those  who  had  a  majority  of  votes,  was,  when  elected,  a  postmaster, 
and  Governor  Grover  therefore  concluded  that  he  waa  authorized  to 
give  a  certificate  of  election  to  Cronin,  who  had  the  next  highest 
vote.  The  governor  will  find  few  to  agree  with  him  that,  when  a 
majority  of  the  people  declare  by  their  ballots  that  they  do  not  want 
a  citizen  to  hold  one  of  their  offices,  such  a  vote  gives  him  a  title 
to  the  office.  But  Watts,  though  a  postmaster  when  elected,  resigned 
that  office  before  December  6,  1876.  On  that  day  Cartwright  and 
Odell  met,  and  as  Oregon  was  entitled  to  three  votes,  there  was  a 
vacancy.  Cronin  met  and  he  found  two  vacancies.  All  three  per 
sons  whom  the  governor  certified  were  elected  electors,  Cartwright, 
Odell,  and  Cronin,  unite  in  informing  us  that  there  was  one  vacancy 
in  the  college.  Cronin  says  there  were  two.  Under  this  state  of  facts 
Cartwright  and  Odell  filled  the  vacancy  by  appointing  Watts,  who, 
if  ever  ineligible,  had  ceased  to  be  so  by  resigning  the  office  of  post 
master. 

Cronin,  on  the  other  hand,  filled  the  two  vacancies  that  he  found  by 
appointing  Miller  and  Parker  electors ;  and  the  only  question  is 
whether  Cartwright  and  Odell,  or  Cronin,  had  the  right  to  fill  vacan 
cies.  And  that  question  is  solved  by  deciding  whether  two  or  one  is 
a  quorum  and  majority  of  a  college  of  three. 

I  think  the  three  electoral  votes  from  the  State  of  Oregon  for  Gov 
ernor  Hayes  should  be  counted. 

The  first  objection  made  to  the  vote  of  the  Hayes  electors  from 
SOUTH  CAROLINA  is  that  the  Constitution  of  the  United  States  guar 
antees  to  that  State  a  republican  government,  which  it  is  claimed 
means  a  government  under  which  the  people  exercise  the  supreme 
power,  and  that  the  State  did  not  have  such  government. 

When  the  Constitution  was  being  framed  Edmund  Randolph  offered 
this  resolution  : 

Resolved,  That  a  republican  government  ought  to  be  guaranteed  by  the  United 
States  to  each  State. 

After  the  debate  this  resolution  was  rejected,  and  the  following 
adopted : 

Resolved,  That  a  republican  form  of  government  shall  be  guaranteed  to  each 
State. 

Few  of  the  States  would  consent  to  change  the  Constitution  so 
that  the  Federal  Government  could  constitutionally  interfere  with 
the  State  governments  further  than  to  see  that  their  form  of  govern 
ment  was  republican.  Such  a  change  would  seriously  affect  the  sov 
ereign  character  of  the  State.  The  government  of  South  Carolina 
was  in  November,  1876,  unquestionably  republican  inform,  and  that 
for  us  is  the  only  proper  inquiry. 

Another  objection  to  counting  this  vote  is  that  the  constitution  of 
South  Carolina  requires  that  there  shall  be  a  registration  law,  and 
that  there  was  none,  and  that  consequently  the  election  of  electors  is 
void.  It  is  sufficient  answer  to  this  objection  that  the  Constitution  of 
the  United  States  provides  that  the  electors  of  any  State  shall  be  ap 
pointed  "in  such  manner  as  the  Legislature  thereof  shall  direct,"  and 
not  in  such  manner  as  the  constitution  of  the  State  shall  direct.  The 
Legislature  in  this  regard  acts  under  the  authority  of  the  Constitution 
of  the  United  States  and  is  entirely  untrammeled  by  State  constitu 
tions. 

Another  objection  is  that  the  Federal  troops  prevented  a  free  elec 
tion.  The  two  Houses  of  Congress  and  this  Commission  will  not  with 
hold  from  the  Federal  Government  the  presumption  that  its  high 
officers,  have  acted  in  accordance  with  the  Constitution,  laws,  and 
best  interests  of  the  nation,  a  presumption  which  in  the  summary 
procedure  of  counting  the  vote  for  President  and  Vico-President  will 
be  held  to  be  conclusive. 

The  two  thousand  and  second  section  of  the  Revised  Statutes  of 
the  United  States  provides  by  necessary  implication  that  troops  may 
be  detailed  to  keep  the  peace  at  the  polls.  If  troops  were  present  at 
the  polls  the  presumption  is,  and  for  the  purpose  of  this  proceeding 
the  conclusive  presumption  is,  that  they  were  so  present  to  keep  the 
peace.  We  are  not  required  to  go  into  evidence  on  this  point ;  espe 
cially  when  we  know  that  to  do  so  would  be  to  delay  the  inaugura 
tion  of  the  citizen  who  has  been  elected  President  until  after  the  4th 
of  March,  and  thus  as  the  law  stands  entirely  defeats  his  inaugura 
tion. 

My  opinion  is  that  the  votes  of  the  Hayes  electors  of  South  Carq- 
lina'shouM  be  counted. 


ELECTORAL  COMMISSION. 


207 


ICt-marka  of  Mr.  Commissioner  Baynrd. 

The  following  remarks  by  Senator  BAYARD,  of  Delaware,  in  the 
course  of  the  private  consultations  of  the  Electoral  Commission,  are 
prepared  for  publication  in  accordance  with  a  resolution  of  the  Com 
mission  and  by  the  aid  of  such  notes  as  were  made  during  its  sessions. 
The  action  of  the  majority  of  the  Commission  prohibited  the  presence 
of  a  stenographer  during  these  debates,  and  as  a  consequence  but  a 
comparatively  imperfect  and  unsatisfactory  report  can  now  be  given. 

The  case  of  the  State  of  Florida  was  the  first  which  was  transmitted 
by  the  two  Houses  of  Congress  for  the  consideration  of  this  tribunal 
under  the  electoral  act,  and  two  returns  purporting  to  be  certificates 
of  electoral  votes  cast  in  that  State  for  President  and  Vice-President 
having  been  made  to  the  President  of  the  Senate,  and,  in  accordance 
with  the  provisions  of  the  law,  submitted  by  him  on  the  1st  day  of 
February  to  the  Commission, 

On  the  motion  of  Mr.  Justice  MILLER,  it  was  resolved  that  the 
Commission  should  hear  counsel  on  the  question  whether  any  evi 
dence  will  be  considered  by  the  Commission  that  was  not  submitted 
to  the  two  Houses  by  the  President  of  the  Senate,  and  if  so,  what  evi 
dence  can  properly  be  considered;  aud  also  the  question,  What  is  the 
evidence  now  before  the  Commission  f 

After  debate  by  counsel,  Mr.  Justice  MILLER  moved  the  following 
order,  on  the  7th  of  February  : 

That  no  evidence  will  be  received  or  considered  by  the  Commission  which  was 
not  submitted  to  the  joint  convention  of  the  two  Houses  by  the  President  of  the 
Senate  with  the  different  certificates,  except  such  as  relates  to  the  eligibility  Of  Jf. 
C.  Humphreys,  one  of  the  electors. 

Which  order  was  determined  in  the  affirmative — 8  yeas,  7  nays.  In 
the  affirmative:  Messrs.  Bradley,  Edmunds,  Frelinghuysen,  Garfield, 
Hoar,  Miller,  Morton,  and  Strong  ;  in  the  negative:  Messrs.  Abbott, 
Bayard,  Clifford,  Field,  Hunton,  Payne,  and  Thurman. 

On  the  9th  of  February  Mr.  Representative  HUNTON,  of  Virginia, 
offered  the  following  resolution : 

That  the  electors  named  in  Certiflcato  No.  2,  to  wit,  Wilkinson  Call,  J.  E.  Yonge 
Robert  Bnllock,  and  Robert  B.  Hilton,  are  the  four  persons  who  were  duly  ap 
pointed  electors  by  the  State  of  Florida  on  the  7th  day  of  November,  1876,  and 
that  their  votes  as  certified  in  such  certificate  are  the  votes  provided  for  by  the 
Constitution  of  the  United  States. 

This  was  decided  in  the  negative,  yeas  7,  nays  8.  In  the  affirma 
tive:  Messrs.  Abbott,  Bayard,  Clifford,  Field,  liunton,  Payne,  aud 
Thurman;  in  the  negative:  Messrs.  Bradley,  Edmunds,  Freliughuy- 
sen,  Gartield,  Hoar,  Miller,  Morton,  and  Strong. 

On  the  9th  of  February  the  following  order  was  adopted  by  a,  vote 
of  8  yeas  to  7  nays  : 

That  the  following  be  adopted  as  tho  final  decision  and  report  of  the  matters  sub 
mitted  to  the  Commission  an  to  the  electoral  vote  of  the  State  of  Florida: 

ELECTORAL  COMMISSION, 
Washington,  D.  O.,  February  'J,  A.  D.  1877. 

To  the  President  of  the  Senate  nf  the  United  States,  presiding  in  the  meeting  of 
the  two  Houses  of  Congress,  under  the  act  of  Congress  entitled  "  An  act  to  pro 
vide  for  and  regulate  the  counting  of  the  votes  for  President  and  Vice-President, 
and  the  decision  of  questions  arising  thereon,  for  the  term  commencing  March  4, 
A.  D.  1877,"  approved  January  29,  A.  D.  1877: 

The  Electoral  Commission  mentioned  in  said  act  having  received  certain  certifi 
cates  and  papers  purporting  to  bo  certificates  and  papers  accompanying  the  same, 
of  the  electoral  votes  from  the  State  of  Florida,  and  tho  objections  thereto  submit 
ted  to  it  under  said  act,  now  report  that  it  has  duly  considered  the  same,  pursuant 
to  said  act.  and  has  decided  and  does  hereby  decide,  that  the  votes  of  Frederick 
C.  Humphreys,  Charles  H.  Pearce,  William  H.  Holduii,  aud  Thomas  W.  Long, 
named  in  the  certificate  of  M.  L.  Stearns,  governor  of  said  State,  which  votes  are 
certified  by  said  persons,  as  appears  by  the  certificate  submitted  to  the  Commis 
sion,  as  aforesaid,  and  marked  "  number  one,"  by  said  Commission,  and  herewith 
returned,  are  the  votes  provided  for  by  the  Constitution  of  the  United  States,  and 
that  the  same  are  lawfully  to  be  counted  as  therein  certified,  namely :  Four  (4)  votes 
for  Rutherford  B.  Hayes,  of  tho  State  of  Ohio,  for  President,  and  four  (4)  votes  for 
William  A.  Wheeler,  of  the  State  of  New  York,  for  Vice-President. 

The  Commission  also  has  decided,  and  hereby  decides  and  reports,  that  the  four 
persons  first  before  named  were  duly  appointed  electors  in  and  by  said  State  of 
Florida. 

The  brief  ground  of  this,  decision  is,  that  it  appears  upon  such  evidence  as  by 
the  Constitution  and  the  law  named  in  said  act  of  Congress  is  competent  and  per 
tinent  to  the  consideration  of  the  subject,  that  the  before-mentioned  electors  ap 
pear  to  have  been  lawfully  elected  such  electors  of  President  and  Vice-President 
of  the  United  States,  for  the  term  beginning  March  4, 1877,  of  the  State  of  Florida, 
and  that  they  voted  as  such  at  the  timo  aud  iu  the  manner  provided  for  by  the  Con 
stitution  of  the  United  States  and  the  law. 

The  Commission  has  also  decided,  and  does  hereby  decide  and  report,  that,  as  a 
consequence  of  the  foregoing  and  upon  the  grounds  before  stated,  neither  of  the 
papers  purporting  to  be  certificates  of  the  electoral  votes  of  said  State  of  Florida 
numbered  two  (2)  and  three  (3)  by  the  Commission,  and  herewith  returned,  are  the 
certificates  or  the  votes  provided'for  by  the  Constitution  of  the  United  States  and 
that  they  ought  not  to  be  counted  as  such. 
Done  at  Washington  the  day  and  year  first  above  written. 

The  question  being  on  the  adoption  of  the  report  of  the  Commission,  it  was  de 
cided  in  the  affirmative : 

YEAS 8 

NAYS 7 

Those  who  voted  in  the  affirmative  were :  Messrs.  Bradley,  Edmunds,  Freling- 
huysen,  Gartield,  Hoar,  Miller,  Morton,  and  Strong— 8. 

Those  who  voted  in  the  negative  were:  Messrs.  Abbott,  Bayard,  Clifford,  Field, 
Hunton,  Payne,  and  Thurman— 7. 

So  the  report  of  the  Commission  was  adopted  ;  and  said  decision  and  report  was 
thereupon  signed  by  the  members  agreeing  therein,  as  follows : 

SAM.  F.  MILLER, 
W.  STRONG, 
JOSEPH  P.  BRADLEY, 
GEO.  F.  EDMUNDS, 
O.  P.  MORTON, 

FRED'K  T.  FRELINGHUYSEN, 
JAMES  A.  GARFIELD, 
GEORGE  F.  HOAR, 

Commissioner!. 


STATE  OF   FLORIDA. 
[On  the  question  of  hearing  evidence.] 

In  the  course  of  the  private  deliberations  of  the  Commission,  Sena 
tor  BAYARD  said : 

Mr.  President  and  gentlemen  of  the  Commission,  I  would  not  con 
ceal  from  you  even  if  I  could  the  deep  anxiety  with  which  I  have  ap 
proached  the  decision  of  this  question,  the  difficulties  surrounding 
which  have  been  apparent  since  the  foundation  of  our  Government, 
and  their  consideration  postponed  from  generation  to  generation 
until  we  find  ourselves  now  compelled  for  the  first  time  to  make  a 
decision  which  includes  in  its  consequences  the  possession  of  the  ex 
ecutive  power  of  the  Government  of  the  United  States  for  the  ensu 
ing  four  years  ;  and  to  the  natural  and  constitutional  difficulties  sur 
rounding  this  much  debated  question  is  superadded  the  fact  that  we 
are  acting  not  in  view  of  an  uncertainty  yet  veiled  by  the  future, 
but  upon  facts  exhibited  in  the  clear  light  of  the  past,  after  an  ex- 
citiug  and  heated  controversy  between  two  great  political  parties, 
the  result  of  which  when  established  must  be  full  of  disappoint 
ment  to  one  or  the  other.  I  can  only  say  that  while  I  feel  a  just  and 
natural  distrust  in  my  powers  to  deal  competently  with  such  is 
sues,  yet  I  am  at  least  conscious  that  I  approach  the  duties  imposed 
upon  me  by  the  oaths  I  have  taken,  both  as  a  Senator  of  the  United 
States  and  a  member  of  this  Commission,  in  a  spirit  deeply  solicitous 
to  act  worthily  in  my  place. 

In  order  properly  to  consider  the  question  of  receiving  evidence 
other  than  that  contained  in  the  papers  submitted  by  the  President 
of  the  Senate  to  the  two  Houses,  and  by  them  sent  to  this  Commis 
sion,  we  must  examine  the  constitution  of  this  tribunal. 

I  hold  that  for  the  purposes  of  this  decision  the  two  Houses  of  Cou- 
gress  are  now  present  in  this  tribunal.  I  am  here  not  only  as  a  mem 
ber  of  this  Commission  but  as  a  Senator,  and  come  here  with  all  the 
knowledge  which  I  have  derived  as  a  member  of  the  Senate  from  the 
testimony  taken  by  committees  appointed  by  both  the  Senate  and  the 
House  for  the  investigation  of  affairs  in  the  State  of  Florida  duriug 
the  past  winter.  I  cannot  divest  myself  of  this  knowledge  ;  to  do  so 
were  impossible  and  in  direct  violation  of  my  duty.  The  knowledge 
so  obtained  by  me  is  incidental  to  the  powers  and  duties  of  a  member 
of  either  House ;  and  this  Commission  and  every  member  of  it  are  by 
the  express  language  of  the  second  section  of  the  law  under  which  it 
is  organized,  invested  "  with  the  same  powers  *  *  *  now  pos 
sessed  *  *  *  by  the  two  Houses  acting  separately  or  together." 
Whatever,  therefore,  is  open  to  the  knowledge  or  inquiry  of  one  Com 
missioner,  whether  Senator,  Representative,  or  judge  of  the  Supreme 
Court,  is  open  to  all.  Their  functions  aud  powers  are  equal  m  all 
respects.  Under  the  language  of  the  law  creating  this  Commission 
"all  the  certificates  and  papers  purporting  to  be  certificates  of  the 
electoral  votes"  shall  be  opened  by  the  President  of  the  Senate  and 
by  him  presented  to  the  two  Houses,  whoso  tellers  shall  read  tho 
same  in  the  presence  and  hearing  of  the  two  Houses. 

Upon  such  reading  of  any  such  certificate  or  paper  when  there  shall  be  only  one 
return  f rom  a  State,  the  President  of  the  Senate  nhM  call  for  objection*,  if  any. 
Every  objection  shall  be  made  iu  writing,  and  shall  state  clearly  and  concisely,  and 
without  argument,  the  ground  thereof,  and  shall  be  signed  by 'at  least  one  Senator 
and  one  member  of  theHouseof  Representatives  before  the  same  shall  bo  rcccivrd. 
When  all  objections  so  made  to  any  vote  or  paper  from  a  State  shall  have  brcn  iv- 
ceivedand  read,  the  Senate  shall  thereupon  withdraw,  and  ancli  objection*  shall  be 
submitted  to  the  Senate  for  its  decision ;  and  the  Speaker  of  the  House  ot  Urprcsent- 
atives  shall,  in  like  manner,  submit  such  objections  to  the  House  of  ficpivsentatioes 
for  its  decision;  and  no  electoral  vote  or  votes  from  any  State  from  whicli  but  one 
return  has  been  received  shall  be  rejected  except  by  the  affirmative  vote  of  I  ho  t  wo 
Houses.  When  tho  two  Houses  havo  voted  they  shall  immediately  again  mcci, 
and  the  presiding  oflicer  shall  then  announce  the  decision  of'  the  question  submitted. 

As  a  member  of  the  Senate  it  will  be  observed  I  am  thus  called 
upon  to  vote  in  cases  of  single  returns  from  a  State  upon  objections 
so  made.  The  jurisdiction  of  the  two  Houses  over  the  question  of 
receiving  or  rejecting  electoral  votes  is  unmistakably  and  clearly  as 
sumed  by  the  language  of  the  law  which  I  have  read.  It  recognizes 
the  power  of  the  Senate  and  the  House,  by  the  action  of  a  single 
member  of  each  body,  to  raise  objections  to  the  reception  of  an  elect 
oral  vote,  and  it  provides  for  the  decision  of  the  two  Houses  upon 
those  objections.  If  there  was  no  jurisdiction  and  power  in  the  two 
Houses  over  the  question  of  reception  or  rejection  of  the  votes  sent 
np,  it  would  have  been  worse  than  an  idle  form  to  have  enacted  this 
law  calling  for  objections  and  providing  for  their  decision.  When, 
therefore,  members  of  the  Senate  or  the  House  are  called  upon  to  vote 
intelligently  and  conscientiously  upon  objections  to  the  reception  of 
electoral  votes, what  are  they  necessarily  "to  take  into  view,"  and 
what  is  to  guide  them  in  the  decision  they  are  to  make  ?  Necessarily 
everything  that  is  known  as  evidence  in  parliamentary  law  aud  usage, 
all  public  facts  of  which  both  Houses  must  have  knowledge,  all  reports 
of  committees  of  either  House,  all  depositions  accompanying  the  same, 
petitions,  and  such  other  papers  as  contain  information  necessary  aud 
proper  for  the  consideration  and  determination  of  the  question.  This 
course  of  proceeding  and  scope  aud  character  of  information  is  essen 
tial  for  the  performance  of  the  duties  assumed  by  the  two  Houses  of 
Congress  and  each  member  thereof  under  the  first  section  of  the  act. 

Let  us  now  consider  the  duty  of  this  Commission  under  the  second 
section  of  the  act,  which  provides — 

That  if  more  than  one  return,  or  paper  purporting  to  be  a  return  from  a  State, 
shall  have  been  received  by  the  President  of  the  Senate,  purporting  to  be  the  cer 
tificates  of  electoral  votes  given  at  the  last  preceding  election  *  *  *  all  such 
returns  and  papers  shall  be  opened  bv  him  in  tne  presence  of  the  two  Houses  when 
met  as  aforesaiu,  and  read  by  the  tellers,  and  all  such  returns  and  papers  shall 


208 


ELECTORAL  COMMISSION. 


thereupon  be  submitted  to  the  judgment  and  decision  as  to  which  is  the  true  and 
lawful  electoral  vote  of  such  State,  of  a  Commission  constituted  as  follows. 

The  composition  and  formation  of  this  Commission  is  then  set  forth. 
The  section  provides  for  the  opening  and  reading  by  the  tellers  of  all 
such  certificate*  and  papers ;  andthePresideutof  the  Senate  is  directed 
to  call  for  objections,  and  the  description  of  the  objections  so  called  for 
is  in  precisely  the  same  language  as  is  provided  in  the  tirst  section  in 
case  of  single  returns.  All  such  objections,  together  with  the  certifi 
cates,  votes,  and  papers  so  objected  to,  and  all  papers  accompanying 
the  same  shall  forthwith  be  submitted  to  this  Commission — 

Which  shall  proceed  to  consider  the  u&wo,  with  the  name  power*  *  *  *  nowpns- 
xtmsedfor  that  purpose  by  I  lie  two  llousex  acting  separately  or  together,  and,  by  a  ma 
jority  of  votes,  decido  whether  any  and  what  votes  from  such  State  are  the  votes 
'provided  for  by  the  Constitution  of  the  United  States,  and  how  many  and  what 
persons  were  duly  appointed  electors  in  -such  State,  and  may  therein  take  into  view 
such  petitions,  depositions,  and  other  papers,  if  any,  as  shall,  by  the  Constitution 
and  now  existing  law,  be  competent  and  pertinent  insuch  consideration. 

The  section  also  provides  that  when  such  decision  by  a  majority  of 
the  Commission  shall  have  been  read  and  entered  in  the  Journal  of 
each  House/  '  the  counting  of  the  votes  shall  proceed  in  conformity 
therewith,  unless,  upon  objection  made  thereto  in  writing  by  at  least 
live  Senators  and  five  members  of  the  House  of  Representatives,  the 
two  Houses  shall  separately  concur  in  ordering  otherwise." 

Thus  it  will  be  observed  that  on  the  part  of  those  who  have  denied 
that  evidence  of  any  character  can  be  considered  by  the  Commission 
which  was  not  contained  in  the  certificates  submitted  to  the  two 
Houses  by  the  President  of  the  Senate,  the  following  result  would  be 
reached  :  that  members  of  this  Commission  being  also  members  of  the 
Senate  and  the  House,  shall  be  at  liberty  to  receive,  and  in  fact  must 
receive  and  consider,  evidence  in  relation  to  objections  to  single  returns 
of  electoral  votes  when  voting  in  their  respective  Houses  which  they 
will  not  receive  or  consider  when  sitting  in  this  Commission  in  cases 
of  double  returns  ;  that  evidence  of  the  truth  shall  be  brought  home 
to  my  mind  and  bind  itself  on  iny  conscience  in  the  case  of  a  single 
return  that  is  to  be  denied  to  me  in  case  of  a  double  return.  It  will 
scarcely  be  denied  that  the  extent  of  inquiry  and  difficulties  of  as 
certainment  as  to  which  is  the  true  return  of  two  returns  involves  an 
equal  or  indeed  much  greater  difficulty  in  the  investigation  than 
where  a  single  return  is  alone  under  consideration ;  and  it  will  also 
be  observed  that  after  the  Commission  shall  have  refused  to  receive 
any  evidence  outside  of  the  papers  submitted  by  the  President  of  the 
Senate  and  have  thus  made  their  decision  in  the  dark  and  without 
information,  ten  of  its  members  withdrawing  to  their  places  in  the 
Senate  and  the  House  and  being  called  upon  to  vote  upon  the  ques 
tion  of  concurring  or  non- concurring  in  the  decision  of  the  Commis 
sion,  shall  have  both  the  power  and  the  duty  to  receive  and  consider 
as  Senators  and  Representatives  evidence  which  as  Commissioners 
they  had  excluded. 

This  statement  of  the  case  would  seem  to  me  to  make  it  apparent 
that  this  Commission  must  necessarily  have  opened  to  them  all  ave 
nues  and  means  of  information  which  were  open  to  either  or  both 
Houses  of  Congress ;  and  that  the  members  cannot,  by  taking  seats 
in  the  Commission,  denude  themselves  of  the  powers  and  duties  and 
the  means  of  information  which  belong  to  them  as  members  of  either 
House  of  Congress. 

It  is,  therefore,  my  judgment  that  when  I  entered  this  chamber  as 
a  member  of  the  Commission  I  brought  with  me  all  the  knowledge 
concerning  the  late  election  in  Florida  of  which  I  had  become  pos 
sessed  as  a  member  of  the  Senate ;  and  whatever  were  iny  powers  or 
duties  as  a  member  of  the  Senate  in  relation  to  this  subject  of  count 
ing  the  electoral  votes  they  are  not  diminished  or  altered  by  my  be 
coming  a  member  of  this  Commission ;  and  as  a  corollary  of  this  pro 
position,  I  hold  the  power  and  jurisdiction  of  each  and  all  members  of 
the  Commission  to  be  necessarily  equal  in  every  respect. 

It  has  been  alleged  as  a  reason  for  not  hearing  evidence  that  injustice 
would  follow  if  every  possible  topic  of  inquiry  were  not  pursued  and 
every  fact  probed  to  its  very  bottom.  So  unqualified  a  proposition 
cannot  be  received  without  the  risk  of  reducing  oar  proposed  duties 
to  impossibility,  if  not  absurdity. 

As  I  have  stated,  the  duty  devolved  upon  the  two  Houses  in  rela 
tion  to  single  returns  in  section  1  of  the  act  is  in  precisely  the  same 
frame  of  words  as  in  section  2  is  provided  for  cases  of  double  re 
turns  when  submitted  to  this  Commission.  In  the  case  of  single  re 
turns  two  hours  are  given  for  debate,  followed  by  a  peremptory  order 
to  vote  at  the  termination  of  that  time ;  and  then  "  immediately  " 
the  two  Houses  are  to  meet  and  announce  the  result.  Certain  it  is 
the  two  Houses  will  not  vote  in  ignorance  of  the  facts  upon  which 
their  action  is  to  be  taken.  They  have  and  will  certainly  "  take  into 
view  such  petitions,  depositions,  and  other  papers"  as  are  on  their 
files.  They  will  consider  the  reports  of  their  committees  and  listen  to 
the  debates  before  reaching  a  decision.  To  this  Commission  is  ex 
pressly  confided  the  same  means  of  information,  of  the  same  knowl 
edge  in  extent  or  character  which  is  possessed  by  the  two  Houses,  with 
this  addition,  that  the  Commission  is  not  limited  as  to  time  for  its 
ascertainment  and  determination  of  facts,  but  more  time  and  infi 
nitely  better  opportunities,  after  listening  to  objectors  and  counsel  on 
both  sides,  is  allowed  to  us  in  coming  to  our  decision. 

For  what  object,  let  it  be  asked,  was  this  enlarged  opportunity  for 
examination,  hearing,  and  determination  given  to  this  Commission  ? 
Plainly  because  the  questions  submitted  to  us  were  of  a  more  com 
plicated  nature  than  cases  of  single  returns.  It  was  because  the  law 
and  the  facts  were  supposed  to  be  more  iu  controversy  in  cases  of 


double  returns  that  this  Commission  was  formed  for  the  purposes  of 
justice  and  convenience  deliberately  and  fully  to  examine  and  justly 
to  decide  the  vexed  questions  of  law  and  fact  raised  by  the  objec 
tions  called  for  by  the  Vice-President  and  made  by  the  members  of 
the  Senate  and  the  House.  If  no  evidence  was  to  be  received,  then 
argument  would  be  useless,  objections  would  be  useless ;  the  two 
hours  given  to  the  two  Houses  for  debate  in  single  returns  would 
have  been  reasonably  sufficient  for  this  Commission,  who  in  the  seclu 
sion  of  this  court-room  could  more  rapidly  reach  a  decision  than  the 
two  Houses  in  general  debate. 

.  What  is  meant  by  "objections"  and  the  provision  that  they  are  to 
be  "called  for"  and  be  "submitted  for  decision"  and  be  "decided?" 
Objections  must  be  to  the  form  or  the  substance  of  the  return.  It  is 
difficult  to  state  a  valid  objection  as  to  the  form  of  a  return,  because 
no  form  is  prescribed  by  the  Constitution,  and  as  to  "tlie  State"  is 
confided  "the  manner"  of  appointment  of  the  electors,  it  is  to  a  fail 
ure  to  obey  her  statutes  prescribing  form  of  certificate  that  consider 
ation  alone  could  be  given,  and  an  inspection  of  the  State  constitu 
tion  and  laws  would  settle  that.  To  be  of  substance  the  objections  must 
arise  under  the  provisions  of  the  Constitution,  and  be  based  upon  a 
violation  of  the  requirements  of  that  instrument,  and  the  limitations 
imposed  by  it  upon  the  State  in  the  selection  of  persons  to  vote  or  to 
be  voted  for. 

The  call  for  objections  is  a  distinct  recognition  in  the  law  under 
which  we  are  now  proceeding  of  the  fact  that  valid  objections  can 
exist,  and  when  presented  must  be  decided,  and  that  electoral  votes 
may  for  just  cause  be  excluded  "  under  the  Constitution  and  existing 
law." 

The  Constitution  requires  in  mandatory  phrase  that — 

First.  "  Each  State  shall  appoint " — 

Second.  "  In  such  manner  as  the  Legislature  ihvreof  may  direct  "— 

Third.  "  A  number  of  electors—  equal  to  the  whole  number  of  Senators 
and  Representatives  to  which  the  State  may  be  entitled  in  the  Con 
gress." 

Fourth.  "But  no  Senator  or  Representative,  or  person  holding  an 
office  of  trust  under  the  United  States,  shall  be  appointed  an  elector." 

Fifth.  The  electors  shall  meet  in  their  respective  Slates. 

Sixth.    They  shall  vote  by  ballot  for  President  and  Vice-Presideut — 

Seventh.  One  of  whom  shall  not  be  an  inhabitant  of  the  same  State 
with  themselves. 

Eighth.  They  shall  make  distinct  lists  of  all  the  persons  voted  for  as 
President  and  Vice-President — 

Ninth.  And  of  the  number  of  votes  for  each — 

Tenth.  Which  lists  they  shall  sign  and  certify,  and  transmit  sealed 
to  the  seat  of  Government  of  the  United  States,  directed  to  the  Presi 
dent  of  the  Senate. 

Eleventh.  The  Congress  may  determine  the  time  of  choosing  the 
electors,  and  the  day  on  which  they  shall  give  their  votes,  which  day 
shall  be  tlw  same  throughout  the  United  States. 

Twelfth.  Prescribes  qualifications  of  the  President  and  Vice-Presi 
dent. 

Is  it  not  manifest  that  in  calling  for  "  objections  "  to  the  count  of 
the  electoral  votes,  that  constitutional  objections  such  as  a  disregard 
of  any  of  the  fosegoing  requirements  were  plainly  contemplated  ? 

What  votes  are  to  be  counted  ?  "  The  votes  provided  for  by  the  Con 
stitution  of  the  United  States."  (See  section  2  of  electoral  bill.)  And 
what  votes  are  to  be  rejected  from  the  count?  Plainly  the  votes  not 
provided  for  by  the  Constitution :  and  "  objections  "  to  such  votes  and 
for  such  reasons  are  the  only  objections  "called  for"  by  the  terms  of 
the  act  and  are  to  be  decided  under  its  provisions. 

It  seems  to  me,  therefore,  that  upon  the  very  face  of  this  act  we 
are  called  upon  to  exercise  a  jurisdiction  involving  first  inquiry,  and 
next  determination  of  facts  and  law,  which  we  cannot  abdicate  or 
avoid  without  rendering  the  law  under  which  we  act  a  sham  and  a 
dead  letter.  Unless  the  two  Houses  have  the  power  to  decide  upon 
objections  it  is  an  idle  waste  of  time  and  a  mockery  of  law  to  call  for 
objections.  Unless  this  Commission  has  the  power  and  the  duty  to 
consider  and  determine  objections  in  cases  of  double  returns  it  was 
an  idle  form  to  refer  those  returns  to  us.  If  limitation  upon  the  time 
allowed  us  for  investigation,  argument,  and  consideration  was  not 
removed  for  the  purpose  of  giving  us  full  and  ample  opportunity  to 
inquire,  to  ascertain  the  truth  both  of  law  and  fact  involved  in  these 
questions  of  double  returns  and  suggested  by  the  objections  filed,  then 
the  formation  of  this  Commission  and  its  sessions  was  worse  than  a  mere 
waste  of  time,  it  was  a  deception  of  honest  and  reasonable  public 
expectation,  and  the  submission  of  our  decision  to  the  two  Houses  of 
Congress  was  an  idle  preliminary  which  might  as  well  or  better  have 
been  dispensed  with. 

Our  duties  upon  this  Commission  are  those  of  substance  or  else  of 
mere  form  only ;  and  holding  them  to  be  of  substance  and  that  sub 
stance  to  consist  in  the  ascertainment  of  which  is  "the  true  and  law 
ful  electoral  vote  of  such  State,"  it  seems  to  me  impossible  that  we 
can  reach  such  a  decision  without  prior  inquiry ;  and  inquiry  involves 
the  reception  and  consideration  of  all  that  is  evidence  "  competent 
and  pertinent  under  the  Constitution  and  existing  law." 

It  is  plain  that  the  object  and  intent  of  this  law  is  to  reach  a  de 
cision,  and  that  this  is  not  to  be  defeated  by  delay  or  prolongation  of 
examination  and  debate  so  as  to  spin  out  the  month  allotted  to  us. 
The  case  is  not  inter  paries,  in  a  legal  sense.  It  is  a  public  res.  The 
two  Houses  have  been  the  known  and  public  tribunal  for  the  consid 
eration  and  decision  of  these  vexed  questions  for  months  past.  They 


ELECTOEAL  COMMISSION. 


209 


have  severally  recognized  and  acted  upon  this  assumption,  and  sent 
forth  their  committees  during  the  past  winter,  who,  after  laborious 
sessions,  have  come  back  with  full  reports  and  testimony  of  the  trans 
actions  in  question  and  have  reported  their  conclusions.  In  the  State 
of  Florida  the  courts  of  that  State  have  themselves  taken  jurisdiction 
of  the  question  now  before  us,  as  under  the  constitution  and  laws  of 
that  State  they  were  empowered ;  and  have  reached  a  decision.  The 
record  of  those  judicial  proceedings  is  before  us,  and  tells  its  own  story. 
It  is  true,  this  fact  appears  in  the  papers  submitted  for  our  consider 
ation  by  the 'two  Houses,  but  it  is  asked  that  no  other  or  further  evi 
dence  be  received.  ._  — 

It  is  plain  to  me  that  from  the  very  nature  of  this  proceeding  all  thejelect 
testimony,  all  the  information  known  to  parliamentary  law  and  usage 
which  was  and  is  in  the  possession  of  either  or  both  Houses  of  Con 
gress,  must  necessarily  be  considered  as  being  to-day  before  this 
Commission  and  subject  to  its  examination;  and  also  that  if  other 
and  further  testimony  is  needed  by  us  in  relation  to  any  fact  to  sat 
isfy  our  minds  prior  to  reaching  a  decision,  it  is  our  duty  and  power 
to  take  it,  having  always  in  view  that  it  shall  be  competent  and  per 
tinent,  and  regulating  our  action  so  that  the  law  under  which  we 
proceed  will  not  be  defeated  by  prolonged  delays. 

I  recognize  expedition  as  a  necessary  feature  in  our  proceedings. 
This  duty  is  marked  all  over  the  law,  curtailing  as  it  does  debate  in 
the  two  Houses,  preventing  adjournments,  limiting  the  hours  of  re 
cess,  and  providing  that  no  separation  of  the  two  Houses  shall  take 
place  during  the  execution  of  the  law  except  as  expressly  provided. 
Expedition  is  inherent  in  the  very  nature  of  the  act  and  its  objects. 
Therefore  the  time  allowed  by  this  Commission  for  taking  testimony, 
hearing  counsel  and  objectors,  all  will  be  measured  by  a  due  sense  of 
proportion  to  the  great  end  in  view,  which  is  a  decision  between  all 
the  contested  returns  by  the  3d  day  of  March  next.  It  is  no  answer 
to  say  thart  because  we  cannot  hear  everything  we  must  therefore 
hear  nothing;  and  the  hearing  in  each  case  will  be  regulated  by 
reason  and  a  sense  of  the  fitness  of  things  which  is  supposed  to  ac 
company  the  intelligent  execution  of  every  duty. 

The  very  statement  of  the  question  submitted  in  section  2  of  the 
act  for  the  decision  of  this  Commission  is,  as  I  have  said,  indicative 
of  the  duty  and  in  great  degree  of  the  power  which  is  vested  in  the 
Commission  for  the  performance  of  that  duty.  We  are  to  decide 
"  how  many  and  what  persons  were  duly  appointed  electors  in  such 
State."  These  are  the  precise  facts  set  forth  in  the  Constitution  of 
the  United  States,  which  provides  that  each  State  shall  appoint  a 
certain  number  ("  bow  many")  of  electors,  but  certain  persons  hold 
ing  office  ("  what  persons  ")  shall  not  be  appointed. 

By  the  Constitution  so  many  persons  only  and  such  persons  only 
shall  be  appointed  electors,  and  no  more.  No  other  persons  than 
those  authorized  by  the  Constitution  can  be  appointed.  If  a  greater 
number  be  appointed  the  appointment  is  absolutely  void  quoad  the 
excess  beyond  the  number  prescribed.  If  persons  prohibited  be  ap 
pointed  such  appointment  is  absolutely  void.  The  regulation  by  the 
Constitution  as  to  numbers  and  qualifications  of  the  electors  is  con 
tained  in  the  same  sentence,  and  by  no  warrant  can  its  grammatical 
construction  be  destroyed  or  the  natural  alliance  of  the  words  used 
be  severed  so  as  to  alter  its  effect  or  meaning.  Its  obligation  is  equal 
throughout,  and  no  more  force  can  be  ascribed  to  one  of  its  mandates 
than  to  the  other.  The  duty  of  obedience  by  the  States  to  these  two 
limitations  upon  the  number  and  qualification  of  electors  is  equally 
plain  and  distinct.  There  is  no  more  power  in  a  State  to  disregard 
one  limitation  than  the  other.  The  breach  of  the  Constitution  by  a 
State  in  appointing  a  person  forbidden  is  equally  unwarranted  and 
dangerous  as  to  appoint  more  persons  than  the  Constitution  permits. 
The  action  of  any  State  in  the  appointment  of  electors  is  directly  of 
importance  to  all  her  sisters  of  the  Union.  The  offices  in  view  are 
the  chief  executive  offices  of  the  entire  Union.  The  safety,  rights,  and 
welfare  of  each  State  are  directly  affected  by  the  action  of  every  other 
State.  It  is  the  right  and  it  is  the  duty  of  all  the  other  States  to  see 
that  no  State  shall  have  a  more  numerous  or  different  college  of  elect 
ors  than  the  Constitution  provides. 

It  will  scarcely  be  urged  that  any  State  can  at  its  will  send  up  to 
be  counted  a  greater  number  of  electoral  votes  than  the  Constitution 
allows,  and  that  there  is  no  "  counting  power  "  in  the  Senate  or  House 
of  Representatives  to  arrest  and  defeat  such  an  attempt.  To  admit 
the  power  of  any  State  to  increase  at  its  will  the  number  of  its  elect 
oral  votes  is  surely  to  reduce  the  Constitution  a.nd  our  system  of 
government  to  an  absurdity.  "  No  Senator  or  Representative  shall 
be  appointed  an  elector."  Can  it  be  that  such  votes  would  be  counted 
in  the  presence  and  with  the  aid  of  the  very  persons  who  in  defiance 
of  the  Constitution  have  assumed  to  act  as  electors  ?  The  exclu 
sion  of  such  persons  is  contained  in  the  very  sentence  which  limits 
the  number  of  electors ;  yet  if  a  State  can  violate  the  mandates  of 
the  Constitution  as  to  the  qualifications  of  electors  and  appoint  per 
sons  electors  who,  holding  offices  of  trust  and  profit  under  the  United 
States,  have  used  their  official  powers  as  stepping-stones  to  exalt  them 
selves  and  the  President,  who  is  the  fountain  of  all  executive  power 
of  the  Government,  to  a  renewed  lease  of  authority,  it  is  evident  the 
wound  inflicted  upon  the  Constitution  and  upon  free  government  is 
equally  deep  and  dangerous. 

There  can  be  no  safety  unless  all  the  avenues  to  places  of  power 
under  the  Constitution  shall  be  equally  well  guarded,  and  the  same 
measure  of  duty  and  with  it  the  same  measure  of  power  be  given  to  the 


two  Houses  over  tho  count  of  electoral  votes  to  "  decide  whether  any 
and  what  votes  from  such  State  are  the  votes  provided  for  by  the  Con 
stitution  of  tJie  United  States,  and  how  many  and  what  persons  were 
duly  appointed  electors  in  such  State." 

Nothing  in  this  proposition  detracts  from  the  just  powers  of  the 
State,  whose  voice  alone  is  to  be  heard  and  obeyed  in  the  choice  of 
her  electors.  All  interference  by  the  citizens  of  one  State  with  the 
elections  in  another,  or  by  the  Government  of  the  United  States  with 
the  election  or  manner  of  election  by  a  State,  is  clearly  in  violation 
of  the  letter  and  spirit  of  the  Federal  Constitution.  The  confusion 
and  dangers  which  now  surround  us  in  connection  with  the  late 
ion  have  their  real  origin  in  the  mischievous  and  utterly  unwar 
ranted  interference  by  the  President  of  the  United  States  and  his 
subordinates  in  office  with  the  process  of  election  in  Florida  and  other 
southern  States.  The  official  powers  and  emoluments  of  the  Govern 
ment  have  been  openly  used  as  an  engine  of  party  influence  in  the 
late  canvass ;  and  finally  the  military  arm  of  the  Government  has  been 
sent  down  upon  partisan  application  to  overawe  the  political  op 
ponents  of  the  present  Administration  and  abet  and  encourage  its 
party  friends  and  agents  in  the  commission  of  violations  of  the  laws 
of  the  State.  It  never  was  intended  that  the  Federal  power  should  bo 
felt  in  the  State  elections,  whether  for  presidential  electors  or  State 
officers.  There  never  will  be  peace  and  safety  to  the  people  individ 
ually  or  in  their  communities  as  States  until  the  pretensions  to  tho 
exercise  of  such  power  on  the  part  of  the  Federal  administration  shall 
have  been  abandoned. 

I  have  always  voted  against  inquisition  by  the  Federal  Govern 
ment  into  the  management  of  their  affairs  by  the  States ,  and  would 
no  more  do  it  in  case  of  presidential  electors  than  in  State  officers. 
No  one  can  be  more  averse  than  I  to  the  invasion  of  the  powers  of 
the  State  to  elect  and  then  to  authenticate  according  to  its  own  laws 
the  result  of  its  free  choice  as  provided  by  the  Constitution  o£  the 
United  States.  But  the  very  question  in  the  case  of  Florida  is,  did 
the  State  appoint  any  and  what  persons  electors  ?  Two  sets  of  votes 
are  before  us  and  only  one  can  be  the  lawful  return.  Which  shall  wo 
accept  ?  Certainly  that  which  the  State  has  declared  to  be  true. 
Both  sets  certainly  cannot  be  counted,  and  the  State  has  a  right  to 
have  one  set  counted. 

Florida  has  by  the  Constitution  the  power  and  duty  of  appointing 
four  electors,  no  more.  Two  certificates  are  before  us,  one  of  Hum 
phreys  and  his  three  associates  certifying  that  as  electors  they  had 
voted  on  December  6, 1876,  for  Hayes  and  Wheeler,  which  is  accom 
panied  by  the  certificate  of  Stearns,  the  late  governor,  pursuant  to 
the  laws  of  the  United  States,  that  Humphreys  and  his  associates 
were  chosen  electors.  Certificate  No.  2  is  by  Wilkinson  Call  and  his 
three  associates,  that  they  on  the  6th  of  December,  1876,  had  voted 
for  Tilden  and  Hendricks.  This  is  accompanied  by  the  certificate  of 
William  Archer  Cocke,  attorney -general  of  Florida  and  one  of  tho 
board  of  State  canvassers,  that  by  the  returns  of  the  votes  cast  in 
the  State  of  Florida  at  the  general  election  held  on  November  7, 
1876,  Call  and  his  associates  were  chosen  electors  for  President  and 
Vice-President.  Accompanying  the  certificates  of  Call  is  a  duly  au 
thenticated  copy  of  the  act  of  the  Legislature  of  Florida,  reciting  tho 
judicial  proceedings  in  the  courts  of  that  State  whereby  it  appears 
that  upon  a  canvass  of  the  true  votes  of  the  State  made  under  order 
of  the  court,  Call  and  his  associates  had  been  duly  chosen  electors  on 
the  7th  day  of  November,  1876;  and  these  proceedings  are  accom 
panied  by  the  certificate  of  Drew,  the  present  governor  of  Florida, 
verifying  the  same. 

This  double  return  is  an  abnormal  fact,  and  one  that  has  been 
caused  not  by  the  State  of  Florida  or  her  people,  but  by  the  mischiev 
ous  and  unlawful  intervention  of  the  exterior  power  to  which  I  have 
before  alluded.  The  power  of  self-government  is  awarded  to  the  State 
to  hold  her  elections  free  from  exterior  influences.  If  her  citizens  and 
officials  shall  send  up  two  returns  then  they  have  necessarily  sought  a 
decision  at  the  hands  of  a  third  party  and  made  it  necessary  by  their 
own  act.  The  Constitution  provides  that  the  electoral  votes  shall  bo 
counted  in  the  presence  of  the  two  Houses  of  Congress,  and  not  other 
wise.  When  this  count  shall  have  been  completed  the  result  is  to  bo 
ascertained,  and  by  whom  ?  Necessarily  by  the  two  Houses  of  Con 
gress  because  it  is  made  their  duty  to  recognize  and  declare  tho  per 
sons  found  by  the  count  of  the  electoral  votes  to  have  been  duly 
elected ;  and  if  no  such  election  shall  be  by  them  found  to  have  been 
accomplished,  then  in  the  event  of  a  majority  of  the  persons  ap 
pointed  electors  not  having  been  found  to  have  voted  for  any  candi 
date,  "  immediately "  upon  the  House  of  Representatives  is  devolved 
the  high  duty  of  doing  what  the  electoral  colleges  have  failed  to  do, 
L  e.,  elect  a  President,  and  simultaneously  a  like  duty  is  devolved 
upon  the  Senate,  to  elect  a  Vice-President,  as  provided  by  the  twelfth 
article  of  amendment  of  the  Constitution.  The  two  Houses  of  Con 
gress  have  thus  in  a  certain  contingency,  of  the  arrival  of  which 
they  must  inform  themselves,  the  duty  of  filling  the  chief  executive 
offices  of  the  Republic.  If  this  shall  become  their  great  and  high 
duty,  must  they  not  necessarily  inquire  and  ascertain  whether  events 
have  justified  their  proceeding  ?  To  this  end  the  Constitution  pro 
vides  that— 

The  President  of  the  Senate  shall,  in  the  presence  of  the  Senate  and  House  of 
Representatives,  open  all  the  certificates  and  the  votes  shall  then  be  counted. 

It  must  be  in  the  presence  of  the  two  Houses,  who,  in  order  to  per 
form  their  duty  and  protect  the  avenues  to  the  great  offices  in  ques- 


210 


ELECTORAL  COMMISSION. 


tion,  must  carefully  scrutinize  and  supervise  this  "  count."  To  tliis 
end  the  two  Houses  must  see  that  the  count  is  true  ;  true  in  all  that 
the  word  implies ;  accurate  in  number  and  lawful  in  itself  ;  not  more 
votes  than  should  be  counted ;  not  other  votes  than  should  be  counted ; 
no  votes  to  be  counted  for  a  prohibited  person,  no  votes  to  be  counted 
when  cast  by  persons  forbidden  by  law  to  cast  such  votes. 

The  choice  of  electors  is  by  the  Constitution  confided  to  the  State. 
The  language  is  plain  : 

Each  State  shall  appoint,  in  such  manner  as  the  Legislature  thereof  may  direct, 
a  number  of  electors,  equal  to  the  whole  number  of  Senators  and  Representatives 
to  which  the  State  may  be  entitled  in  the  Congress. 

The  two  Houses  of  Congress  have  no  right  or  power  to  question 
the  choice  of  the  State,  but  they  have  a  right  and  a  duty  to  insist  that 
the  Constitution  shall  be  obeyed  by  the  State  in  the  performance  o'f 
the  act  of  appointment. 

I  have  been  unable  to  discover  any  better  chart  of  the  power  which 
may  be  and  which  must  be  exercised  by  the  two  Houses  of  Congress 
in  scrutinizing  the  votes  which  are  brought  before  them  to  be  counted 
under  their  supervision  than  to  hold  that  the  States  whose  elect 
oral  votes  are  sent  up  to  be  counted  shall  be  controlled  by  the  same 
limitations  of  the  Constitution  as  control  the  two  Houses  themselves 
when  called  upon  to  elect  a  President  and  Vice-President  in  the  ab 
sence  of  a  majority  of  the  electoral  votes  having  been  found  to  be 
cast  for  any  candidate.  Thus,  if  the  Constitution  of  the  United 
States  forbids  Congress  to  elect  anyone  President  except  a  natural- 
born  citizen  or  a  citizen  of  the  United  States  at  the  time  of  the 
adoption  of  the  Constitution,  nor  any  person  "  who  shall  not  have 
attained  to  the  age  of  thirty -five  years,  and  been  fourteen  years  a 
resident  within  the  United  States,"  they  surely  will  not  be  at  liberty 
to  count  votes  for  candidates  so  rendered  ineligible  and  for  whom 
they  would  themselves  have. been  debarred  from  voting;  and  their 
duty  in  this  regard  is  based  upon  the  inhibitioms  of  the  Constitution. 

The  obligation  to  support  the  Constitution  is  equal  as  respects  all 
its  provisions.  No  one  provision  can  be  selected  from  its  context  and 
supported  and  held  sacred  and  those  which  surround  it  be  treated 
with  contempt  and  disregard.  If  the  qualifications  of  the  persons  to 
be  voted  for  as  President  and  Vice-President  are  to  be  respected  by  the 
two  Houses  of  Congress  when  they  are  called  upon  to  elect  them,  it 
is  their  right  and  duty  to  insist  that  they  shall  be  respected  by  the 
electoral  colleges.  The  obligation  is  not  greater  to  support  the  pro 
visions  of  the  Constitution  which  prescribe  qualifications  for  the  can 
didate  than  to  support  those  equally  express  qualifications  of  the  offi 
cials  who  can  vote  to  elect  a  candidate.  If  the  two  Houses  cannot 
vote  for  a  person  of  foreign  birth  for  President,  they  have  no  power 
to  count  electoral  votes  for  such  a  person.  Whether  the  provisions  of 
the  Constitution  define  the  qualifications  of  the  person  who  shall 
vote  or  the  person  who  shall  be  voted  for,  they  are  equally  obligatory 
upon  those  who  have  the  supervision  of  the  ultimate  fact  of  ascer 
taining  and  declaring  the  lawful  President  and  Vice-President  of  the 
United  States. 

In  the  case  before  us  two  voices  pretend  to  speak  for  the  State  of 
Florida.  To  us  is  confided  the  duty  of  discovering  which  is  the  true 
and  which  is  the  false.  We  cannot  avoid  this  duty,  and  all  that  is 
implied  in  its  performance.  The  organic  act  of  this  Commission  ex 
pressly  provides  for  a  count  of  the  votes  by  the  two  Houses,  and  by 
no  one  else.  To  count  means  to  count  truly,  and  to  count  truly  we 
must  have  knowledge  of  what  is  the  truth. 

The  question  before  us  is  whether  we  will  hear  proof  tending  to 
show  that  one  and  not  the  other  of  these  returns  is  the  true  return. 
How  can  we  execute  this  duty  without  hearing  the  facts  ?  The  Con 
stitution  has  directed  the  State  to  "  appoint,  in  such  manner  as  the 
Legislature  thereof  may  direct,  a  number  of  electors."  If  this  essen 
tial  fact  be  brought  in  question,  then  the  constitution  and  the  laws  of 
the  State  must  be  consulted  in  order  to  ascertain  what  is  the  "  man 
ner  directed."  This  Commission  is  invested  with  all  the  powers  of  the 
two  Houses  of  Congress  acting  separately  or  together.  It  is  in  its  es 
sence,  therefore,  and  in  the  purview  of  'its  power  and  contemplated 
action,  a  parliamentary  body,  with  parliamentary  powers  and  meth 
ods.  We  are  not  sitting  as  a  judicial  court  of  general  or  statutory 
jurisdiction,  but  to  exercise  judgment  undoubtedly,  and  to  that  end 
to  prosecute  inquiry  into  the  subject-matter,  not  by  technical  meth 
ods,  but  by  the  general  methods  and  usages  well  known  to  the  his 
tory  of  parliamentary  proceeding,  to  take  such  views  as  are  a  fit  basis 
for  legislation,  and  to  be  governed  in  our  judgments  here  by  the 
same  kind  of  proofs  as  would  enlighten  legislative  discretion  and 
judgment.  The  very  language  of  the  section  of  the  act  creating 
this  Commission  commands  that  we  shall  proceed  to  consider  and  de 
cide  "  what  votes  from  such  State  are  the  votes  provided  for  by  the 
Constitution  of  the  United  States,  and  how  many  and  what  persons 
were  duly  appointed  electors  in  such  State,  and  may  therein  take  into 
view  such  petitions,  depositions,  and  other  papers  *  *  *  as  shall, 
by  the  Constitution  and  now-existing  law,  be  competent  and  perti 
nent  in  such  consideration."  Where  except  in  legislative  bodies  are 
"  petitions "  used  as  evidence  ?  Where  are  "other  papers"  received 
as  means  of  information  ?  The  technical  rules  of  evidence  would  ex 
clude  all  such,  and  yet  this  law  clearly  contemplates  their  reception 
and  use.  The  very  word  "law"  is  advisedly  in  the  singular,  because 
it  is  used  in  its  broadest  and  most  embracing  sense,  which  would  not 
be  extended  if  the  additional  words  "  parliamentary,"  "  common," 
or  "  statutory  "  had  been  annexed. 


It  will  be  observed  that  I  have  omitted  in  my  citations  the  words 
"  if  any,"  which  are  to  be  found  in  many  places  throughout  the  act. 
I  have  done  so  because  in  proceedings  such  as  this  no  one  will  gravely 
contend  that  such  words  are  to  have  the  slightest  force  in  giving  o'r 
excluding  jurisdiction.  No  one  has  said  here  or  elsewhere  that  such 
words  would  impair  or  assist  the  opera.tion  of  law.  If  in  the  juris 
diction  of  a  justice  of  the  peace  over  the  property  in  a  shilling  such 
words  would  be  without  force  to  control  jurisdiction,  surely  their 
furtive  and  petty  presence  will  hardly  be  recognized  in  the  consider 
ation  of  such  issues  as  confront  us  now  and  upon  which  the  execu 
tive  power  over  a  nation  of  forty  millions  of  people  may  be  said  to 
depend.  This  Commission  stands  admittedly  in  the  place  and  armed 
with  all  the  powers  and  discretion  over  this  subject  which  are  vested 
in  the  Senate  of  the  United  States  representing  the  people  in  their 
organized  polities  called  States,  and  every  individual  person  in  the 
United  States  by  their  Representatives  in  Congress. 

I  say  nothing  here  of  the  new-fangled  claim  for  power  in  the  Presi 
dent  of  the  Senate  to  count  the  electoral  votes.  Such  a  pretension 
had  late  birth  and  a  speedy  death.  It  was  advanced  in  opposition  to 
the  unbroken  line  of  precedent  of  the  history  of  the  Government  from 
its  foundation.  It  had  no  warrant  in  the  express  or  implied  meanings 
of  the  Constitution.  It  was  in  opposition  to  the  nature  and  the  spirit 
of  our  popular  government.  Discussion  and  public  opinion  soon  set 
tled  its  fate.  It  no  longer  exists  as  a  subject  for  consideration. 

An  examination  of  the  history  of  congressional  precedent  overthis 
subject  of  the  count  of  the  votes  has  given  me  more  knowledge  than 
I  had  when  the  discussions  took  place  in  the  Senate  two  years  ago. 
Since  that  time  the  proceedings  of  the  two  Houses  in  the  year  1800  in 
relation  to  "  a  bill  prescribing  the  mode  of  deciding  disputed  elec 
tions  of  President  and  Vice-President  of  the  United  States"  have 
been  disinterred  from  the  archives  of  the  Senate.  The  bill  in  ques 
tion  originated  in  the  Senate,  and  proposed  that  either  House  of  Con 
gress  should  have  power  to  reject  an  electoral  vote.  It  provided  for 
the  creation  of  an  electoral  commission  of  which  the  elements  were 
the  same  as  the  present,  consisting  of  members  of  the  House  and  Sen 
ate  and  presided  over  by  the  Chief-Justice  of  the  Supreme  Court. 
This  "grand  committee,"  as  it  was  then  called,  in  the  eighth  section 
of  the  bill  was  invested  with  "  power  to  inquire,  examine,  decide,  and 
report  upon  the  constitutional  qualifications  of  the  persons  voted  for 
as  President  and  Vice-President  of  the  United  States,  or  made  accord 
ing  to  the  mode  prescribed  by  the  Legislature  upon  all  petitions  and 
exceptions  against  corrupt,  illegal  conduct  of  the  electors,  or  force, 
menaces,  or  improper  means  used  to  influence  their  votes;  or  against 
the  truth  of  their  returns,  or  the  time,  place,  or  manner  of  giving 
their  votes;  provided,  always,  that  no  petition  or  exception  shall 
be  granted  or  allowed  by  the  grand  committee  which  shall  have  for 
its  object  to  draw  into  question  the  number  of  votes  on  which  any 
elector  in  any  of  the  States  shall  have  been  declared  appointed." 

And  the  preceding  section,  6,  was  as  follows : 

That  the  grand  committee  shall  have  power  to  send  for  persons,  papers,  and  rec 
ords,  to  compel  the  attendance  of  witnesses,  to  administer  oaths  or  affirmation*  to 
all  persons  examined  before  them,  and  to  punish  contempts  of  witnesses  refusing 
to  answer  as  fully  and  absolutely  as  the  Supreme  Court  of  the  United  States  may 
or  can  do  in  causes  depending  therein ;  and  the  testimony  of  all  witnesses  exam 
ined  before  the  committee  shall  be  reduced  to  writing  by  the  secretary  of  the  com 
mittee,  and  shall  bo  signed  by  the  witness  after  his  examination  is  closed.  And  if 
any  person,  sworn  and  examined  before  this  committee,  shall  swear  or  affirm 
falsely,  such  person  thereof  convicted  shall  incur  the  pains,  penalties,  and  disabil 
ities  inflicted  by  the  laws  of  the  United  States  upon  willful  and  corrupt  perjury. 

At  the  close  of  the  seventh  section  is  a  proviso  that  the  number  of 
votes  on  which  any  elector  in  any  of  the  States  shall  have  been 
declared  appointed  should  not  be  inquired  into.  By  the  ordinary 
rules  of  construction,  it  would  appear  that  the  power  of  inquiry  would 
have  embraced  this  subject  but  for  the  express  exception. 

The  bill  passed  the  Senate  and  was  reported  back  to  the  House  of 
Representatives,  by  which  body  it  was  also  passed  with  an  amend 
ment  requiring  the  concurrence  of  the  two  Houses  to  reject  a  vote. 
It  was  upon  this  point  of  difference,  to  wit,  whether  the  Houses  act 
ing  separately  should  have  power  to  reject  a  vote  or  whether  it  re 
quired  their  concurrent  action  to  reject  a  vote,  that  the  disagreement 
took  place  and  became  final.  But  the  claim  of  power  over  the  count 
ing  of  the  votes  and  of  instituting  inquiry  as  to  the  lawfulness  of  the 
electoral  votes  was  upheld  in  both  Houses  of  Congress  by  large  ma 
jorities.  Among  those  so  voting  to  exercise  the  jurisdiction  by  Con 
gress  over  this  question  were  found  many  persons  who  had  sat  in  the 
convention  which  framed  the  Constitution  of  the  United  States. 
Among  the  chief  actors  was  Mr.  John  Marshall,  soon  after  the  Chief- 
Justice  of  the  United  States ;  and  the  record  of  the  vote  discloses  the 
names  of  well-known  characters  in  American  history  who  as  constitu 
tional  lawyers  are  entitled  to  great  weight.  It  is  proper  to  say  that 
the  argument  of  Mr.  Charles  Cotesworth  Pinkney  was  strongly  in  op 
position  to  the  exercise  of  such  power  by  Congress,  and  his  speech  is 
more  fully  reported  than  any  other,  to  which  may  be  added  that  it  is 
the  only  speech  in  the  same  direction.  The  concession  of  power  in 
Congress  to  control  the  count  of  the  electoral  votes  according  to  the 
Constitution,  and  to  institute  such  inquiries  and  take  such  evidence 
as  would  be  necessary  to  secure  the  end  in  view,  was  apparently 
affirmed  by  a  great  majority  of  both  Houses. 

In  1824  a  bill  was  introduced  in  the  Senate  by  Mr.  Van  Buren,  of 
New  York,  to  regulate  the  count  of  the  votes,  and  providing  that  the 
concurrence  of  both  Houses  should  be  necessary  for  the  rejection  of 


ELECTORAL  COMMISSION. 


211 


a  vote.  No  provision  dealing  with  double  returns  is  made  in  the  bill. 
The  bill  introduced  by  Mr.  Van  Buren  passed  the  Senate  without 
amendment,  was  referred  to  the  Committee  on  the  Judiciary  of  the 
House,  and  reported  back  without  amendment  by  Mr.  Webster,  but  no 
further  action  was  ever  taken  on  it,  and  it  never  became  a  law. 

February  8,  1865,  President  Lincoln  sent  the  following  message  to 
Congress,  which  is  to  be  found  on  page  229  of  the  compilation,  of 
the  action  of  Congress  on  this  subect: 
To  the  honorable  the  Senate  and  House  of  Representatives : 

The  joint  resolution  entitled  "Joint  resolution  declaring  certain  States  not  enti 
tled  to  representation  in  the  electoral  college  "  has  been  signed  by  the  Executive 
in  deference  to  the  view  of  Congress  implied  in  its  passage  and  presentation  to  him. 
In  his  own  view,  however,  the  two  Houses  of  Congress,  convened  under  the  twelfth 
article  of  the  Constitution,  have  complete  power  to  exclude  from  counting  all  elect 
oral  votes  deemed  by  them  to  be  illegal :  and  it  is  not  competent  for  the  Executive 
to  defeat  or  obstruct  that  power  by  a  veto,  as  would  bo  the  case  if  his  action  were 
at  all  essential  in  the  matter.  He  disclaims  all  right  of  the  Executive  to  interfere 
in  anyway  in  the  matter  of  canvassing  or  counting  electoral  votes,  and  ho  also  dis 
claims  that,  by  signing  said  resolution,  he  has  expressed  any  opinion  on  the  recitals 
of  the  preamble  or  any  judgment  of  his  own  upon  the  subject  of  the  resolution. 

ABRAHAM  LINCOLN. 

EXECUTIVE  MANSION,  February  8,  1865. 

The  joint  twenty-second  rule,  adopted  on  the  6th  of  February,  1865, 
by  the  two  Houses  without  division,  assumed  in  either  House  the 
existence  of  the  power  to  reject  at  will  and  without  debate  any 
electoral  vote;  in  other  words,  the  concurrent  vote  of  the  two  Houses 
was  necessary  for  the  counting  of  any  electoral  vote.  This  rule  con 
tinued  in  force  until  February,  1875,  and  was  then  rescinded  by  the 
action  of  the  Senate.  Under  it  the  count  of  electoral  votes  had  been 
thrice  made,  in  1865,  in  1869.  and  in  1873;  and  the  power  of  exclud 
ing  electoral  votes  was  claimed  and  exercised  by  each  House  acting 
separately  on  these  three  occasions. 

On  the  6th  of  January,  1873,  on  the  motion  of  Mr.  Sherman,  of 
Ohio,  the  following  resolution  was  adopted : 

Resolved,  That  the  Committee  on  Privileges  and  Elections  is  directed  to  inquire 
and  report  to  the  Senate  whether  the  recent  election  of  electors  for  President  and 
Vice-President  has  been  conducted  in  the  States  of  Louisiana  and  Arkansas  in  ac 
cordance  with  the  Constitution  and  laws  of  the  United  States  and  with  the  laws  of 
said  States,  and  what  contests,  if  any,  have  arisen  as  to  who  were  elected  as  electors 
in  either  of  said  States,  and  what  measures  are  necessary  to  provide  for  the  deter 
mination  of  such  contests  and  to  guard  against  and  determine  like  contests  in  the  fu 
ture  election  of  electors  for  President  and  Vice- President.  That  for  the  purpose  of 
speedily  executing  this  resolution  the  said  committee  shall  have  power  to  send  for 
persons  and  papers,  to  take  testimony,  and  at  their  discretion  to  send  a  subcom 
mittee  of  their  own  number  to  either  of  said  States  with  authority  to  take  testi 
mony  ;  and,  if  the  exigency  of  this  service  demands,  the  said  committee  may  ap 
point  and  employ  suitable  disinterested  and  unprejudiced  persons  not  resident  in 
either  of  such  States,  with  authority  to  take  such  testimony  as  may  be  material  in 
determining  any  pending  contest  growing  out  of  the  election  of  electors  in  either 
of  said  States. 

Under  this  resolution  the  committee,  presided  over  by  Mr.  MOK- 
TON,  of  Indiana,  one  of  the  present  Commission,  made  investigation, 
and  on  the  10th  of  February  following  made  a  report  accompanied  by 
voluminous  testimony  on  the  subjects  embraced  in  the  resolution,  in 
the  course  of  which  report  it  is  said  : 

The  certificate  of  the  secretary  of  state  is  not  required,  and  the  certificate  of  the 
governor,  as  provided  for  in  this  section,  seems  to  be  the  only  evidence  contem 
plated  by  the  law  of  the  election  of  electors  and  their  right  to  cast  the  electoral 
vote  of  the  State.  If  Congress  chooses  to  go  behind  the  governor's  certificate,  and 
inquire  who  has  been  chosen  as  electors,  it  is  not  violating  any  principle  of  the 
right  of  the  States  to  prescribe  what  shall  be  the  evidence  of  the  election  of 
electors,  but  it  is  simply  going  behind  the  evidence  as  prescribed  by  an  act  of  Con 
gress  ;  and,  thus  going  behind  the  certificate  of  the  governor,  we  find  that  the 
official  returns  of  the  election  of  electors,  from  the  various  parishes  of  Louisiana, 
had  never  been  counted  by  anybody  having  authority  to  count  them. 

Under  the  twenty-second  joint  rule  and  this  report  the  electoral 
vote  of  the  State  of  Louisiana  was  not  counted,  there  being  two  re 
turns  from  said  State. 

On  December  6,  1876,  the  following  resolutions,  introduced  by  Mr. 
EDMUNDS,  of  Vermont,  a  member  of  this  Commission,  passed  the 
Senate : 

Resolved,  That  the  Committee  on  Privileges  and  Elections,  when  appointed,  be 
and  it  hereby  is  instructed  to  inquire  and  report  as  soon  as  may  be — 

1.  Whether  in  any  of  the  elections  named  in  said  amendment,  in  said  States,  in 
the  years  1875  or  187C,  the  right  of  any  portion  of  such  inhabitants  and  citizens  to 
vote  as  aforesaid  has  been  in  any  wise  denied  or  abridged. 

2.  To  what  extent  such  denial  or  abridgment  has  been  carried. 

3.  By  what  means  such  denial  or  abridgment  has  been  accomplished. 

4.  By  whom  has  such  denial  or  abridgment  been  effected. 

5.  With  what  motives  and  for  what  purposes  has  such  denial  or  abridgment 
been  carried  on. 

6.  By  what  authority  or  pretended  authority  has  such  denial  or  abridgment 
been  exercised. 

Resolved  further,  That  the  said  committee  have  power  to  employ  such  number  of 
stenographers  as  shall  be  needful,  and  to  send  for  persons  and  'papers,  and  have 
leave  to  sit  during  the  sessions  of  the  Senate,  and  to  appoint  subcommittees  with 
full  power  to  make  the  inquires  aforesaid,  and  report  the  same  to  the  committee. 

Resolved  further,  That  said  committee,  in  order  to  the  more  speedy  performance 
of  its  duties,  have  power  to  provide  for  the  taking  of  affidavits  on  the  subjects  afore 
said  before  any  ofnceranthorized  by  the  laws  of  the  United  States  to  takcaffidavits ; 
and  to  receive  and  consider  the  same. 

Resolved  further,  That  the  said  committee  be,  and  is  hereby,  instructed  to 
inquire  into  the  eligibility  to  offiice  under  the  Constitution  of  the  United  States  of 
any  persons  alleged  to  have  been  ineligible  on  the  1th  day  of  November  last,  or  to 
be  ineligible  as  electors  of  President  and  Vice- President  of  the  United  States,  to 
whom  certificates  of  election  have  been  or  shall  be  issued  by  the  executive  author 
ity  of  any  State  as  such  electors,  and  whether  the  appointment  of  electors,  or  those 
claiming  to  be  such  in  any  of  the  States,  has  been  made  either  by  force,  fraud,  or 


lawfully  interfered  with. ;  and  to  inquire  and  report  whether  Congress  lias  any 


constitutional  power,  and,  if  so,  what,  and  the  extent  thereof,  in  respect  of.  the 
appointment  of,  or  action  of,  electors  of  President  and  Vice-Prejsident  of  the  United 
States,  or  over  returns  or  certificates  of  votes  of  such  electors ;  and  that  said  com 
mittee  have  power  to  send  for  persons  and  papers,  and  to  employ  a  stenographer, 
and  have  leave  to  sit  during  the  session  of  the  Senate. 

These  resolutions  are  embodied  in  report  No.  611  of  the  Forty-fourth 
Congress,  second  session,  made  by  Mr.  Sargent,  of  California,  from 
the  Committee  on  Privileges  and  Elections,  and  which  (a  significant 
commentary  upon  the  argument  of  those  who  have  denied  the  right 
or  power  of  this  Commission  to  hear  any  evidence  not  contained  in 
the  papers  presented  by  the  President  of  the  Senate  to  the  two 
Houses)  has  been  used  as  a  paper-book  in  the  course  of  the  debates 
before  this  Commission,  and  copies  of  which  are  now  and  have  been 
throughout  the  consideration  of  this  case  in  the  hands  of  every  mem 
ber  of  the  Commission.  Mr.  Sargent's  report,  made  to  the  Senate 
on  the  29th  of  January,  1877,  contains  thirty  printed  pages,  which 
contain  abundant  extracts  from  the  testimony  in  relation  to  the  elec 
tion  of  electors  in  the  State  of  Florida  in  November  last.  Mr.  Sargent 
reports,  on  page  2,  that  in  pursuance  of  these  resolutions  introduced 
by  Mr.  EDMUNDS,  the  committee  had  "  thoroughly  examined  all  re 
turns  of  the  election,  the  evidence  received  and  considered  by  the  State  can- 
vassing-board,  having  especially  investigated  the  contested  cases  be 
fore  the  board,  and  having  taken  the  testimony  of  four  hundred  and 
forty-two  witnesses  concerning  the  election,  the  canvassing  of  the 
votes  thereof,  the  denial  or  abridgment  of  the  right  of  any  portion  of 
the  inhabitants  of  Florida  to  vote,  by  force  or  by  fraud,  and  the  other 
objects  named  in  the  resolution  of  the  Senate." 

No  action  was  ever  taken  by  the  Senate  upon  this  report,  but  the 
report  of  the  committee  of  the  House  of  Representatives  was  accom 
panied  by  a  resolution  declaring  that  the  actual  returns  substantiated 
by  evidence  showed  that  Wilkinson  Call  and  his  three  associates  had 
been  duly  chosen  electors,  and  had  duly  cast  their  votes  for  Tildeu 
and  Hendricks  on  December  6,  1876,  which  resolution  was  adopted  by 
the  House  by  a  vote  of  142  yeas  to  82  nays. 

The  resolution  of  December  6, 1876,  from  the  hands  of  Mr.  EDMUNDS, 
of  Vermont,  co'ntained  these  words  : 

That  the  said  committee  be,  and  is  hereby,  instructed  to  inquire  into  the  eligibility 
to  office  under  the  Constitution  of  the  United  States  of  any  persons  alleged  to  have 
been  ineligible  on  the  1th  day  of  November  last,  or  to  be  ineligible  as  electors  of 
President  and  Vice-President  of  the  United  States,  to  whom  certificates  of  election 
have  been  or  shall  be  issued  by  the  executive  authority  of  any  State,  and  whether 
the  appointment  of  electors  has  been  made  otherwise  than  in  conformity  with  the 
Constitution  and  laws  of  the  United  States  and  the.  laws  of  the  respective  States. 

Compare  these  last  words  with  the  language  of  the  present  act : 

SEC.  2.  *  *  *  decide  whether  any  and  what  votes  from  such  State  are  the  votes 
provided  for  by  the  Constitution  of  the  United  States,  and  how  many  and  what  persons 
were  duly  appointed  electors  in  such  State. 

The  inquiry  under  the  Senate  resolution  and  under  the  present  law 
is  precisely  the  same,  and  the  exercise  of  the  same  measure  of  power 
is  required  for  a  decision  under  either. 

In  the  face  of  this  history  of  congressional  precedent,  disapproving 
of  much  of  it  as  I  do,  especially  as  to  the  claim  of  power  in  the  two 
Houses  under  the  late  twenty-second  joint  rale,  I  cannot  but  be  amazed 
at  the  present  attitude  of  members  of  the  Commission  and  others  in 
denying  all  power,  in  the  name  of  State  rights,  to  investigate  the 
facts  of  an  election  sufficiently  to  ascertain  what  were  its  true  results, 
to  enable  this  Commission  to  come  to  a  decision  as  to  which  of  these 
two  returns  before  us  now  was  the  true  and  lawful  electoral  vote  of 
the  State  of  Florida,  as  settled  by  the  election  on  the  7th  of  Novem 
ber  last,  according  to  the  Constitution  and  laws  of  the  United  States 
and  of  the  State  of  Florida. 

The  introduction  of  the  Senate  document  to  which  I  have  re 
ferred,  being  the  report  of  one  of  its  committees  and  containing 
part  of  the  testimony  taken  before  it,  and  its  natural  and  appar 
ently  unconscious  use  by  counsel,  by  objectors,  and  members  of  tho 
Commission,  all  confirm  to  me  the  correctness  of  my  opinion  that  all 
the  evidence  of  every  nature  which  was  in  the  possession  of  tho 
two  Houses  of  Congress,  or  either  of  them,  was,  ipso  facto,  in  tho 
possession  of  this  Commission,  who  are  bound  to  give  due  weight 
and  consideration  to  the  same.  Some  of  the  facts  testified  to  before, 
these  committees,  both  of  the  Senate  and  the  House,  in  relation  to 
the  Florida  election,  came  to  my  knowledge  before  I  was  appointed 
a  member  of  this  Commission.  It  dwells  still  in  my  memory  and 
cannot  be  dismissed.  At  my  table  in  the  Senate  I  have  several  vol 
umes  of  this  printed  testimony.  It  was  furnished  to  me  by  order  of 
the  Senate,  that  I  might  intelligently  and  conscientiously  vote  upon 
the  subjects  to  which  it  related.  When  I  shall  return  to  tho  Senate 
and  vote  upon  any  objection  which  may  be  offered  in  cases  of  single 
returns  from  any  State,  I  must  cast  that  vote  in  the  full  light  of  all 
the  knowledge  and  information  within  my  power.  When  I  leave  this 
Commission,  after  its  decision  shall  have  been  made,  and  vote  upon  tho 
question  of  concurrence  or  non-concurrence  in  that  decision,  I  shall  cast 
my  vote  in  the  full  light  of  all  the  information  of  every  nature  which 
as  a  Senator  I  have  derived  from  every  paper  and  from  every  source 
competent  and  pertinent  for  the  decision  of  the  case.  If  everything 
thus  properly  laid  open  to  me  as  a  member  of  the  Senate,  and  which 
binds  me  as  a  Senator,  is  to  be  shut  out  from  my  mind  as  a  Commis 
sioner,  how  anomalous  and  absurd,  how  illogical  must  be  my  position 
in  one  capacity  or  the  other :  as  a  member  of  the  Senate  bound  to 
receive  evidence  and  information  ;  as  a  member  of  the  Commission 
to  shut  my  eyes  to  all  evidence  except  that  which  the  papers  pre 
sented  by  the  President  of  the  Senate  shall  contain  ! 


212 


ELECTORAL  COMMISSION. 


Mr.  President  and  gentlemen  of  tlie  Commission,  I  cannot  so  com 
prehend  my  duty  nor  yours.  The  law  under  which  we  act  plainly 
throws  upon  us  the  duty  of  decision.  Inquiry  and  ascertainment 
necessarily  must  precede  that  decision.  Wo  cannot  justly  decide 
without  evidence  and  we  cannot  lawfully  refuse  to  hear  evidence. 

I  not  only  consider  the  weight  and  influence  of  this  decision  as  im 
portant  in  defining  the  jurisdiction  of  the  two  Houses  of  Congress 
and  the  rights  of  the  candidates  to  exercise  the  functions  for  which 
they  have  been  lawfully  chosen,  but  I  feel  there  is  a  moral  weight  at 
tending  the  decisions  of  this  Commission  which  is  to  sink  deeper  into 
the  hearts  and  consciences  of  the  American  people.  The  question  is 
one  of  law,  but  it  is  a  question  of  law  sustained  by  sound  morals.  It 
is  justice  and  truth  under  the  law  which  is  the  object  for  which  this 
tribunal  was  created ;  and  therefore  I  wou'd  open  wide  every  door  and 
window  of  this  case  through  which  light  and  truth  may  enter,  in  or 
der  that  iustice  and  law  maybe  recognized  as  the  same  thing  in  the 
minds  of' the  people  of  this  country,  who  will  respect  and  love  their 
Government  only  when  they  are  satisfied  that  it  is  just. 

I  can  scarcely  suppose  that  this  Commission  would  refuse  to  hear 
evidence  that  the  certificates  of  a  governor  and  of  a  college  of  elect 
ors  were  in  fact  forgeries,  or  that  the  governor  and  electors  had  been 
compelled  under  duress  and  coercion  to  sign  their  names  to  these  cer 
tificates.  Why  would  we  receive  such  evidence  ?  Because  the  proof 
would  be  that  the  papers  presented  were  not  in  truth  those  which 
upon  their  face  they  professed  to  be.  Go  a  little  further.  Suppose 
the  governor  had  signed  willingly  and  in  good  faith  and  without 
force,  but  was  himself  the  victim  of  fraud  and  deception  under  which 
only  his  signature  had  been  obtained,  or  if  the  board  of  canvassers 
whose  action  he  certified  had  also  been  induced  by  the  fraud  and  for 
gery  of  others  to  make  a  certificate  of  facts  which  were  afterward 
discovered  to  be  false,  is  it  to  be  said  that  either  or  both  of  these 
tilings  cannot  be  corrected  and  that  we  have  no  power  to  do  so ;  that 
there  is  no  power  in  the  State  to  do  so  ?  Now,  if  the  fraud  shall  be 
the  fraud  of  the  governor  and  the  board  of  canvassers  combined, 
does  that  make  it  any  more  binding  on  us  than  if  they  had  been  the 
innocent  victims  themselves  of  the  fraud  or  force  of  others  ? 

I  understand  that  proof  is  offered  to  this  Commission  to  show  that 
the  certificate  of  Humphreys  and  his  three  associates,  the  Hayes  elect 
ors,  is  not  the  true  and  lawful  vote  of  the  State  of  Florida ;  that  it  is 
the  result  of  the  action  of  a  State  board  of  canvass,  ministerial  only  in 
its  powers,  acting  beyond  its  jurisdiction,  in  fraud  and  in  error  certify 
ing  an  untruth ;  and,  on  the  other  hand,  that  evidence  is  offered  to  show 
that  the  State  of  Florida  at  the  election  held  November  7,  1876,  did 
elect  Wilkinson  Call  and  his  three  associates,  all  duly  qualified  under 
the  Constitution  of  the  United  States,  and  elected  in  accordance  with 
the  constitution  and  laws  of  the  State  of  Florida;  and  that  being  so 
elected  they  did,  on  the  day  appointed  by  act  of  Congress,  in  pursu 
ance  of  the  Constitution,  meet  as  an  electoral  college  and  cast  the 
votes  of  that  State  for  Tildon  and  Hendricks.  This,  it  seems  io  me,  is 
the  question  which  this  tribunal  was  created  to  decide,  and  that  in 
the  power  and  duty  of  the  decision  are  necessarily  embraced  the  power 
and  duty  of  inquiring  and  hearing  before  determination. 

The  order  of  this  Commission  has  been  made  to  hear  testimony  in 
the  case  of  Mr.  Humphreys,  who  was  alleged  to  be  ineligible  to  be 
appointed  an  elector  because  on  the  day  of  election  he  held  an  office 
of  trust  and  profit  under  the  United  States.  I  do  not  comprehend, 
as  I  have  said  before,  why  one  provision  of  the  Constitution  relating 
to  this  subject  should  be  more  obligatory  upon  us  than  another.  I 
concur  that  it  is  our  right  and  duty  to  hear  testimony  on  this  subject, 
and  equally  so  in  all  other  questions  where  the  true  performance  of 
the  requirements  of  the  Constitution  are  brought  in  question. 


FLORIDA. 

The  Commission  having  resolved  on  the  7th  of  February  "that  no 
evidence  will  be  received  or  considered  by  the  Commission  which  was 
not  submitted  to  the  joint  convention  of  the  two  Houses  by  the  Pres 
ident  of  the  Senate,  with  the  different  certificates,  except  such  as 
relates  to  the  eligibility  of  F.  C.  Humphreys,  one  of  the  electors," 
the  case  was  argued  by  counsel,  and  the  order  heretofore  stated  was 
adopted  on  the  9th  of  February.  Before  the  vote  was  taken  on  the 
adoption  of  this  order  Senator  BAYARD  said : 

After  hearing  the  testimony  of  witnesses  admitted  by  the  Commis 
sion  and  readiugthe  documents  produced  by  them,  I  am  satisfied  that 
Mr.  Humphreys  was  not  ineligible  to  the  office  of  elector  on  the  7th 
of  November,  1876.  The  office  of  shipping  commissioner  formerly 
held  by  him  had,  in  my  judgment,  been  resigned  early  in  the  month 
of  October  preceding.  This  resignation  was  not  required  by  law  to 
be  in  any  particular  form,  but  I  believe  that  he  did  in  fact  divest  him 
self  of  all  official  power  and  emolument  in  connection  with  the  said 
office,  and  that  under  the  laws  of  the  United  States  the  duties  of  the 
said  office  were  assumed  on  the  5th  of  October,  1876,  by  the  collector 
of  customs  at  the  port  of  Pensacola,  in  Florida,  after  which  time  the 
said  Humphreys  did  not  perform  or  attempt  to  perform  any  of  its 
duties.  The  technicality  suggested  of  want  of  form  in  his  resigna 
tion  or  that  it  was  not  made  to  the  court  by  whom  he  was  appointed, 
but  only  to  the  presiding  judge  of  that  court,  does  not  seem  to  me 
sufficient  to  disqualify  him  from  being  appointed  an  elector  for  Presi 
dent  and  Vice-President,  as  I  do  not  consider  that  he  held  the  office 
of  shipping  commissioner  after  the  5th  of  October,  1876. 

The  Commission  having  refused  to  admit  any  evidence  alinnde 


the  certificates,  I  proceed  to  consider  the  law  and  the  facts  of  the 
case  as  so  presented.  The  power  of  choosing  electors  is  vested  in  the 
State,  who,  "  in  such  manner  as  her  Legislature  may  direct,"  is  to  ap 
point  them.  The/ac<  of  the  election  is  not  required  to  be  established 
by  any  form  of  proof.  The  electors  themselves  are  required  to  "  make 
distinct  lists  of  all  persons  voted  for  as  President,  and  of  all  persons 
voted  for  as  Vice-President,  and  of  the  number  of  votes  for  eacli ; 
which  lists  they  shall  sign  and  certify,  and  transmit  sealed  to  the  seat 
of  the  Government  of  the  United  States,  directed  to  the  President  of 
the  Senate." 

On  the  7th  of  November  an  election  was  held  in  the  State  of  Florida 
for  four  persons  as  electors  for  President  and  Vice-President.  Two 
sets  of  candidates  were  voted  for,  one  headed  by  Humphreys  and  one 
headed  by  Call.  The  fact  which  was  elected  will  determine  which 
was  entitled  to  cast  the  vote  of  that  State  for  President  and  Vice- 
President  on  December  6,  1876. 

We  have  heard  the  argument  that  because  the  board  of  State  can 
vassers,  whether  in  disregard  and  defiance  of  duty  or  no,  saw  fit  to 
certify  to  Governor  Stearns  that  Humphreys  and  his  associates  had 
been  chosen  electors,  these  last-named  persons  were  thereby  invested 
"  with  the  insignia  of  office,"  and  that  they  became  officers  defacio, 
if  not  de  jure,  and  that  their  acts  as  such  officers  de  facto  are  valid 
as  to  all  third  parties  under  the  common  rule.  An  important  quali 
fication  of  this  rule,  however,  is  that  it  stops  with  preventing  mis 
chief  to  such  as  confided  in  their  power,  and  it  is  simply  adopted  to 
that  extent  as  a  matter  of  public  policy,  for  the  protection  of  innocent 
third  persons ;  but  the  reasoning  applicable  to  officers  de  facto  is  en 
titled  to  no  place  in  the  present  consideration,  no  such  facts  existing 
here. 

The  office  of  elector  is  confined  to  a  single  function,  that  of  casting 
a  vote  on  a  certain  day.  In  Florida  there  was  no  such  thing  as  an 
elector  de  facto  as  distinguished  from  an  elector  dejure.  Two  separate 
bodies  of  men  assumed  the  office  and  executed  the  function  of  voting 
for  President  and  Vice-Presideiit  on  the  same  day  under  alleged  color 
of  law.  One  body  only  were  the  rightful  electors  de  jure  and  de  facto; 
the  other  were  neither  de  facto  nor  de  jure  electors.  If  the  certificate 
and  the  possession  of  a  certificate  can  be  substituted  for  the  fact  of 
election,  then  we  may  hear  something  of  the  "  insignia  of  office."  It 
is  the  election  that  determines  the  right  to  the  office  and  not  the  certifi 
cate,  which  is  merely  one  form  of  evidence  of  the  election.  The  prin 
ciple  of  de  facto  action  and  the  necessity  of  protecting  the  public  who 
have  confided  in  the  acts  of  the  de  facto  officer  has  no  place  whatever 
in  a  proper  consideration  of  the  case  of  the  State  of  Florida  and  the 
two  sets  of  rival  electors,  both  of  whom  assumed  equally  to  execute 
the  office  at  the  same  time ;  and  the  only  question  now  is  which  set 
was  elected. 

It  is  manifestly  the  duty  of  the  two  Houses  to  secure  to  the  State 
of  Florida  her  right  of  choice,  as  established  by  the  Constitution.  It 
is  a  case  of  State  action  in  relation  to  a  Federal  or  national  object. 
The  State  of  Florida  is  not  alone  concerned,  but  all  the  other  States 
are  concerned,  and  the  two  Houses  of  Congress  have  been  made  the 
verifying  witnesses  of  the  truth  of  this  national  transaction.  The 
meaning  and  the  nature  of  our  Government  must  not  be  forgotten, 
and  we  must  adopt  no  construction  inconsistent  with  either.  If  we 
propose  to  secure  to  each  State  the  right  to  appoint  its  electors,  do 
we  do  it  by  accepting  the  action  of  a  set  of  conspiring  and  faithless 
officials  who,  on  the  eve  of  losing  office,  falsify  their  duty  and  deliver 
over  the  insignia  of  the  office  of  electors  to  persons  not  entitled  to 
receive  them,  and  who,  being  thus  fraudulently  clothed  with  the 
robes  of  office,  proceed  to  defeat  the  real  will  of  the  people  ?  It  seems 
to  me  that  with  as  much  justice  could  it  be  said  that  if  Colonel  Blood 
had  gotten  safely  away  with  the  scepter,  crown,  and  jewels  of  En 
gland  and  the  coronation  robes,  he  was  therefore  the  king  of  England, 
he  who  was  merely  a  robber  of  her  regalia,  as  to  say  that  McLin, 
the  secretary  of  state,  and  Cowgill,  the  comptroller,  conspiring  with 
Stearns,  the  governor,  could,  by  falsifying  the  returns  of  the  election, 
and  breaking  the  law  under  which  they  made  the  canvass,  thereby  say 
that  they  spoke  the  voice  of  Florida  in  such  manner  as  her  Legislature 
had  directed.  It  is  observed  in  the  certificate  No.  2  of  Call  and  his 
associates  that  they  did  notify  Governor  Stearns,  the  executive  of  the 
State,  of  their  appointment  as  electors,  and  did  apply  and  demand  of 
him  to  cause  to  be  delivered  to  them  three  lists  of  the  names  of  the 
electors  of  said  State  according  to  law,  and  the  said  governor  did  re 
fuse  to  deliver  the  same  to  them. 

There  is  no  doubt  that  by  the  conspiracy  of  McLin,  Cowgill,  and 
Stearns  the  customary  certificate  of  the  election  of  Call  and  his  threa 
associates  was  withheld  from  them,  but  did  the  withholding  of  the  cer 
tificate  destroy  the  fact  of  the  election  f  Suppose  no  board  of  canvass 
had  met  and  no  certificates  had  been  issued,  but,  nevertheless,  the 
two  sets  of  electors  had  met  on  December  6,  1876,  and  each  set  as 
sumed  to  discharge  the  functions  of  the  office  by  balloting  for  Pres 
ident  and  Vice-President,  and  each  had  sealed  and  certified  and  sent 
on  to  Washington  the  results  of  their  action.  If  it  was  made  subse 
quently  to  appear  to  the  satisfaction  of  the  two  Houses  of  Congress, 
or  to  the  satisfaction  of  a  court  of  competent  jurisdiction  in  the  State 
of  Florida,  that  one  of  these  sets  of  electors  had  in  fact  been  lawfully 
elected,  and  was  entitled  to  vote  on  the  day  they  did  vote,  would  not 
such  vote  and  such  vote  alone  be  valid,  whether  accompanied  by  cer 
tificates  or  not  ? 

The  fact  of  election  and  who  were  really  chosen  by  the  citizens  of 
Florida  as  electors  for  President  and  Vice-President  on  the  7th  of 


ELECTOEAI/  COMMISSION. 


213 


November,  1876,  is  certified  to  this  Commission  in  a  manner  conclu 
sive  under  the  Constitution  and  laws  of  the  United  States  and  of  the 
State  of  Florida.  The  power  of  appointment  given  to  the  State  in 
volves  necessarily  the  power  to  determine  the  manner  in  which  the 
act  is  to  be  done  and  also  the  power  to  verify  its  own  act  and  show 
ing  that  it  was  done  in  a  proper  manner.  The  State  is  its  own  best 
authority.  To  adopt  the  language  used  in  argument  before  the  Com 
mission,  the  State  is  a  political  community  organized  and  existing 
under  a  system  of  law  by  which  the  declaration  of  the  courts  in  mat 
ters  submitted  to  their  jurisdiction  becomes  the  declaration  of  the  State 
itself.  The  law  of  a  State  is  the  statute  of  a  State  as  construed  and 
applied  by  its  courts.  The  public  laws  of  a  State  promulgated  by  its 
authority  bind  with  absolute  notice  all  persons  within  the  State 
and  form  the  very  highest  means  of  proof  of  the  action  of  the  State. 
By  the  constitution  of  the  State  of  Florida  the  circuit  court  and  the 
judges  thereof  shall  have  power  to  issue  writs  of  quo  warranto.  The 
election  in  Florida  was  held  under  the  laws  of  the  State,  controlled 
and  managed  by  officers  of  the  State ;  the  canvass  of  the  votes  of  the 
State  was  under  the  laws  of  the  State  performed  by  officers  of  the 
State.  Over  those  officers  and  under  those  laws  the  courts  of  the 
State  had  by  its  constitution  jurisdiction  to  examine  and  determine 
whether  those  laws  had  been  construed  and  executed  properly  by  its 
executive  and  ministerial  officers. 

To  use  the  definition  of  these  powers  of  the  State  board  of  canvass 
as  given  by  the  supreme  court  of  Florida  in  the  case  of  The  State  ex 
rel  Drew,  in  December,  1876 : 

They  are  authorized  to  enter  no  judgment,  and  their  power  is  limited,  by  the  ex 
press  words  of  the  statute  which  gives  them  being,  to  the  signing  of  a  certificate 
containing  the  whole  number  of  votes  given  for  each  person  for  each  office,  and 
therein  declaring  the  result  as  shown  by  the  returns. 

The  action  of  the  board  of  canvassers  in  certifying  that  Humphreys 
and  his  associates  had  been  chosen  electors  was  brought  under  review 
in  the  circuit  court  for  the  second  judicial  district  of  the  State  of  Flor 
ida  by  information  in  the  nature  of  a  writ  of  quo  warranto,  wherein 
Wilkinson  Call  and  his  three  associates  were  relators,  and  Humphreys 
and  his  three  associates  were  respondents,  and  the  circuit  ^u^^tflr 
full  consideration  aM_pj-op|a0Ty^¥i<va:ss"  of  *  all  the  votes  cast,  deter- 
mme3T;hat  the  said  relators  were  in  fact  and  in  law  elected  said  elect 
ors  as  against  the  said  respondents  and  all  other  persons. 

By  the  record  of  the  judicial  proceedings  in  the  courts  of  Flor 
ida  having  jurisdiction  of  the  subject-matter,  and  having  all  these 
parties  claiming  to  have  been  chosen  electors  for  President  and 
Vice-Prosident  before  them,  it  is  made  known  to  this  Commission  that 
the  certificate  of  a  majority  of  the  State  board  of  canvass  of  Florida 
that  Humphreys  and  his  three  associates  had  been  chosen  electors 
was  not  true ;  but  by  the  circuit  court  of  said  State  it  was — 

Therefore  considered  and  adjudged  that  said  respondents,  Frederick  C.  Hum 
phreys,  Charles  H.  Pearce,  William  H.  Holden,  and  Thomas  "W.  Long,  were  not,  nor 
was  any  one  of  them,  elected,  chosen,  or  appointed,  or  entitled  to  be  declared  elected, 
chosen,  or  appointed,  as  such  electors  or  elector,  or  to  receive  certificates  or  certificate 
of  election  or  appointment  as  such  electors  or  elector,' and  that  the  said  respondents 
were  not,  upon  the  said  6th  day  of  December,  or  at  any  other  time,  entitled  to  as 
sume  or  exorcise  any  of  the  powers  and  functions  of  such  electors  or  elector ;  but 
that  they  were,  upon  the  said  day  and  date  mere  usurpers,  and  that  all  and  singular 
their  acts  and  doings  as  such  were  and  are  illegal,  null,  and  void. 

And  it  is  further' considered  and  adjudged  that  the  said  relators,  Robert  Bullock, 
Robert  B.  Hilton,  Wilkinson  Call,  and  James  E.  Yonge,  all  and  singular,  were  at 
said  election  duly  elected,  chosen,  and  appointed  electors  of  President  and  Vice- 
Presidentof  the  United  States,  and  were,  on  the  said  6th  day  of  December,  1876,  enti 
tled  to  be  declared  elected,  chosen,  and  appointed  as  such  electors,  and  to  have  and 
receive  certificates  thereof,  and  upon  the  said  day  and  date,  and  at  all  times  since, 
to  exercise  and  perform  all  and  singular  the  powers  and  duties  of  such  electors, 
and  to  have  and  enjoy  the  pay  and  emoluments  thereof. 

It  is  further  adjudged  that  said  respondents  do  pay  to  the  relators  their  costs  by 
them  in  this  behalf  expended. 

By  the  Constitution  of  the  United  States,  article  4,  section  1,  it  is 
provided  that : 

Full  faith  and  credit  shall  be  given  in  each  State  to  the  public  acts,  records,  and 
judicial  proceedings  of  every  other  State.  And  the  Congress  may  by  general  laws 
prescribe  the  manner  in  which  such  acts,  records  and  proceedings  shall  be  proved, 
and  the  effect  thereof. 

In  section  905  of  the  Eevised  Statutes  of  the  United  States  it  is 
provided  that : 

The  said  records  and  judicial  proceedings,  so  authenticated  shall  have  such  faith 
and  credit  given  to  them  in  every  court  within  the  United  States  as  they  have  by 
law  or  usage  in  the  courts  of  the  State  from  which  they  are  taken. 

The  courts  of  the  United  States  have  from  the  origin  of  the  Gov 
ernment  regarded  as  final  all  judgments  of  the  highest  State  courts 
over  matters  and  persons  within  their  jurisdiction.  It  is  not  neces 
sary  for  me  in  this  presence  to  review  the  authorities  in  the  Supreme 
Court  decisions  from  Mills  vs.  Duryee,  7  Cranch,  481,  to  Township  of 
Elmwood  vs.  Marcy,  2  Otto,  289,  in  their  unbroken  effect. 

The  opinion  of  the  court  in  the  last-named  case  was  delivered  by 
Mr.  Justice  Davis,  who  said : 

"We  are  not  called  upon  to  vindicate  the  decisions  of  the  supreme  court  of  Illi 
nois  in  these  cases  or  approve  the  reasoning  by  which  it  reached  its  conclusions. 
If  the  questions  before  us  had  never  been  passed  upon  by  it,  some  of  my  brethren 
who  agree  to  this  opinion  might  take  a  different  view  of  them.  But  are  not  these 
decisions  binding  upon  us  in  the  present  controversy  ?  *  *  *  We  have  always 
followed  the  highest  court  of  the  State  hi  its  construction  of  its  own  constitution 
and  laws. 

Striking  out  the  name  of  "Illinois"  and  inserting  the  name  of 
"Florida"  in  this  last  citation,  what  effect  must  be  given  by  this 
Commission  to  the  judgments  of  the  courts  of  that  State  to  which  I 


have  referred,  and  the  record  of  which  attached  to  the  certificate  is 
now  before  us  t  How  can  the  laws  of  a  State  be  expounded  with 
more  authority  than  by  its  courts  of  law  ?  The  judiciary  of  the  State 
is  one  of  the  co-ordinate  branches  of  rts  government.  The  interpre 
tation  of  the  statutes  of  a  State  by  its  superior  court  is  binding  every 
where,  if  the  judgment  is  conclusive  in  the  State  where  it  was  pro 
nounced. 

Did  the  jurisdiction  attach  in  Florida  in  the  proceeding  against 
Humphreys  and  others  ?  There  can  be  no  doubt  that  under  the  con 
stitution  and  laws  of  Florida  the  court  had  jurisdiction,  had  the  par 
ties  before  it,  and  entered  judgment  in  accordance  with  the  law  and 
the  facts.  This  proceeding  was  commenced  on  the  day  ou  which  both 
sets  of  electors  assumed  to  act,  on  which  day  the  board  of  canvass 
rendered  a  decision  which  was  declared  by  the  courts  to  be  errone 
ous  and  fraudulent,  but  which  did  not  prevent  the  true  electors  from 
acting  upon  the  fact  of  their  election  and  casting  the  votes  according 
to  the  Constitution  and  laws  of  the  United  States.  There  was  in 
this  case  no  retroactive  force  of  law.  The  fact  had  been  determined 
on  the  7th  of  November,  1876,  by  the  citizens  of  Florida  at  the  polls, 
who  were  the  electors ;  the  function  of  elector  was  discharged  by 
those  whom  that  election  has  proven  to  have  been  elected,  on  the6th 
of  December.  It  is  no  case,  as  has  been  suggested,  of  reconsideration 
by  the  tribunals  and  Legislature  of  a  State  changing  the  result  of  an 
election ;  it  is  no  question  of  violation  of  the  requirement  of  the  Con 
stitution  that  the  votes  should  all  be  cast  upon  the  same  day  through 
out  the  United  States.  The  votes  were  cast  on  the  day  named  by  act 
of  Congress,  and  shall  it  be  because  some  false  votes  wore  cast  by  pre 
tended  electors  on  the  same  day  that  the  true  votes  were  cast  by  the 
real  electors,  that,  therefore,  the  action  of  the  latter  is  to  be  nugatory  ? 
There  is  no  want  of  performance  of  every  constitutional  and  legal 
requirement  by  Call  and  his  three  associates.  By  the  judgment  of  tho 
courts  of  Florida  the  fact  is  conclusively  fastened  upon  the  knowledge 
of  this  tribunal  and  its  effect  is  binding  upon  them  that  on  the  7th  of 
November,  1676,  Wilkinson  Call  and  his  three  associates  were  dulv 
and  truly  chosen,  in  the  rnj^ner^rfiMffl^li  Vice~-PresTdenramUW 
§n"LTecember  6,  1876,  they  lawfully  performed  the  functions  of  the'ir 
said  office,  which  they  certified  duly  to  the  two  lluuo»-s  uj.  crmgrcSin 

The  subsequent  action  of  the  Legislature  of  Florida  in  ordering 
a  recanvass  of  the  votes  and  confirming  the  action  of  the  board 
of  canvass  under  the  decree  of  the  court  does  not  change  in  any 
degree  the  result  of  the  election  held  on  the  7th  of  November,  nor  is 
it  claimed  that  the  result  of  that  election  could  be  in  any  respect 
changed  by  the  subsequent  action  of  the  judiciary  or  the  Legislature; 
but  it  is  plain  that  by  the  certificates  and  records  before  this  Com 
mission  the  State  of  Florida  has  done  all  in  her  power  to  rid  herself 
of  the  fraud  perpetrated  by  a  board  of  ministerial  officers  in  falsely 
canvassing  and  certifying  the  votes  cast  at  the  election  held  on  No 
vember  the  7th,  1876.  *  By  proceedings  in  her  courts  the  same  board  of 
canvass  in  Florida,  under  the  order  of  the  supreme  court  in  the  case  of 
the  State  of  Florida  ex  rel.  George  F.  Drew,  were  compelled  to  return 
the  true  vote  showing  the  election  of  George  F.  Drew  as  governor  and 
the  other  State  officers.  Prior  to  the  action  of  the  supreme  court  this 
canvassing  board  had  erroneously  and  fraudulently  returned  Stearns 
as  governor,  two  republican  members  of  Congress,  and  a  republican 
Legislature.  The  recanvass  being  ordered  by  the  supreme  court  has 
resulted  in  seating  Drew,  the  governor,  a  majority  of  the  Legisla 
ture,  and  the  entire  board  of  State  officers,  who  are  now  regularly 
and  peaceably  in  the  control  of  that  State.  The  construction  given  by 
the  supreme  court  of  the  State  to  the  statute  under  which  the  State 
board  of  canvass  has  assumed  to  act  has  denned  their  duties  and 
their  powers,  and  declared  in  substance  that  they  were  ministerial 
and  not  judicial,  and  that  in  the  rejection  of  the  "true"  votes  re 
turned  to  them  they  had  exceeded  their  authority,  and  their  action 
was  consequently  void.  It  is  not  necessary  here  to  recite  the  decision 
of  the  court  in  respect  to  all  the  powers  of  this  board,  except  to  say 
that  they  had  assumed  powers  not  given  to  them  by  the  statute  under 
which  they  acted,  and  in  regard  to  which  their  action  was  absolutely 
void;  and  upon  review  of  their  action, under  the  statute  as  construed 
and  interpreted  by  the  court,  the  certificate  made  by  them  of  tho 
election  of  Humphreys  and  his  associates  (the  Hayes  electors)  was 
found  to  be  unwarranted  in  law  and  false  in  fact. 

If  the  State  of  Florida  is  to  be  held  to  have  the  power  to  choose 
these  electors,  how  shall  the  voice  of  that  State  be  expressed  ?  It 
was  expressed  by  the  el  ction  on  the  7th  of  November  and  the  votes 
of  her  citizens  cast  thereat.  What  that  vote  was  aud  who  were 
elected  are  proven  to  this  Commission  by  the  judgment  of  the  judicial 
branch  of  the  government  of  Florida.  They  have  reached  conclu 
sions  of  law  and  of  fact  in  relation  to  that  election  which  bind  this 
tribunal  as  much  as  they  bind  every  citizen  of  the  State  of  Florida. 
In  confirmation  of  the  truths  disclosed  by  an  honest  examination  of 
the  votes  actually  cast  at  the  late  election  for  presidential  electors  in 
the  State  of  Florida  comes  the  public  law  of  the  Legislature  of 
Florida,  not  assuming  to  change  the  result  of  that  election,  but  to  de 
clare,  after  careful  canvass  made,  what  the  result  was  when  the  polls 
closed  on  the  7th  of  November,  1876. 

Thus  this  State  has  struggled  to  have  its  own  voice  heard.  Her 
people  have  spoken  through  tho  ballot-box ;  the  State  has  spoken 
through  her  courts  ;  the  State  has  spoken  through  the  Legislature, 
and  the  present  governor  lias  joined  his  certificate  of  regularity  as  to 
all  these  proceedings.  The  electors,  declared  by  the  courts  to  have 


214 


ELECTORAL  COMMISSION. 


been  the  true  electors  on  the  Gth  day  of  December,  1876,Wilkinson  Call 
:i  i  ii  I  his  three  associates,  have  certified  to  you  the  result  of  their  votes 
i'or  President  and  Vice-President.  I  know  not  how  a  State  can  speak 
save  as  Florida  has  spoken.  Her  laws  have  been  construed  by  her 
courts.  The  facts  of  the  election  of  November  7, 1876,  have  been  ad 
judicated  according  to  that  interpretation  of  her  laws.  The  record 
of  those  judicial  proceedings  in  due  form  is  now  before  this  Com 
mission  and  appended  to  the  certificates  of  the  Tilden  electors.  Shall 
they  bo  received  or  shall  they  be  rejected  ?  Will  this  Commission 
take  heed  of  the  true  fact  of  election  or  will  they  hold  themselves 
bound  by  a  certificate  of  ministerial  officers,  which  has  been  proved 
in  the  judicial  courts  of  the  State  to  be  erroneous,  if  not  fraudulent, 
and  which  by  the  laws  of  the  State  is  declared  to  be  prima  facie  evi 
dence  only.  Whatever  of  force  that  certificate  would  have  had  prima 
facie  has  disappeared  forever  under  the  judgment  of  a  court  of  com 
petent  jurisdiction,  in  which  the  facts  set  forth  in  that  certificate  were 
brought  into  controversy  and  have  been  determined  according  to  the 
laws  of  the  State  of  Florida. 

It  seems  to  me  that  in  deciding  which  of  these  two  returns  is  the 
true  and  lawful  return  there  cannot  be  in  the  mind  of  lawyer  or  lay 
man  any  reasonable  doubt.  If  a  State  cannot  succeed  by  the  united 
voices  ofits  three  branches,  executive,  legislative,  and  judicial,  in  es 
tablishing  a  fact  transacted  under  its  own  laws  and  within  its  own 
limits,  it  is  idle  to  talk  of  State  existence  or  State  rights.  By  the 
three  departments  of  her  government  Florida  has  essayed  to  make  her 
will  known.  Those  mute  witnesses  of  the  truth  of  the  late  election 
in  Florida,  those  silent  pieces  of  paper  upon  which  were  written  or 
printed  the  names  of  the  persons  voted  for,  are  inexistence.  They 
have  been  canvassed  and  compiled,  and  the  result  is  before  this  tri 
bunal,  and  that  result  proclaims  that  in  fact  and  in  law  Call  and  his 
three  associates  did  receive  a  majority  of  the  true  votes  cast  on  Novem 
ber  7,  1876,  for  the  office  of  electors  of  President  and  Vice-President. 
The  question  is  whether  the  State  of  Florida  shall  have  her  vote  re 
ceived  or  not.  At  any  rate  I  would  ask  if  this  Commission  will  not 
mentoY  hci^ovcrnmcnt  she  has  bx^tiTiwTltrySBWbbYAWlv.AQpart- 
iiot  at  least  spare  hor  the  additional  wrong  of  Misrepresentation  ?  If 
a —  t-..~  .ifiuu  io  to  be  smothered,  do  not,  I  beg  of  you,  permit  the 
false  voice  to  be  heard. 


STATE  OF  LOUISIANA. 

On  Tuesday,  February  13,  the  Commission  met  at  eleven  o'clock  to 
consider  the  case  of  the  electoral  votes  of  the  State  of  Louisiana, 
two  certificates  purporting  to  be  the  certificates  of  electoral  votes 
having  been  opened  by  the  President  of  the  Senate  in  the  presence  of 
the  two  Houses,  Certificate  No.  1  of  William  Pitt  Kellogg  and  his 
seven  associates  claiming  to  have  been  duly  chosen  electors  for  Presi 
dent  and  Vice-Presideut  for  that  State,  certified  by  the  said  Kellogg  as 
governor  of  the  State,  and  Certificate  No.  2  of  Robert  C.  Wickliffe  and 
his  seven  associates,  certified  by  John  McEnery  as  governor  of  the 
State  of  Louisiana.  Objections  to  the  Kellogg  certificate  were  duly 
made  by  members  of  the  Senate  and  House  of  Representatives,  stat 
ing  in  substance  that  there  was  on  the  7th  day  of  November,  1876,  no 
law  or  joint  resolution  of  the  Legislature  of  Louisiana  in  force  direct 
ing  the  manner  in  which  the  electors  for  said  State  should  be  ap 
pointed,  because  if  any  law  was  in  existence  directing  the  appoint 
ment  of  electors  it  was  an  act  of  the  Legislature  which  directed  that 
the  electors  should  be  appointed  by  the  people  of  the  State  in  their 
primary  capicity  at  an  election  held  on  a  day  certain  at  particular 
places  and  in  a  certain  way;  that  the  people  of  the  State,  in  accord 
ance  with  the  legislative  direction,  had  elected  Robert  C.  Wickliffe 
and  his  seven  associates  by  a  very  large  majority  of  the  votes ;  that 
the  said  William  Pitt  Kellogg  and  his  seven  associates  were  not  in 
fact  and  in  law  chosen  electors,  but  that  the  said  certificate  of  their 
election  by  the  said  Kellogg  was  false  in  fact  and  fraudulently  made 
by  him  with  the  full  knowledge  of  his  seven  associates  claiming  to 
be  electors ;  that  the  pretended  canvass  of  the  votes  of  the  people  of 
the  State  of  Louisiana,  made  by  Madison  Wells,  Anderson,  Casanave, 
and  Kenner,  as  returning  officers  of  said  election,  was  without  juris 
diction  and  void;  that  the  statutes  under  which  the  said  returning 
officers  claimed  to  have  derived  their  authority  gave  them  no  juris 
diction  whatever  to  make  the  returns  or  canvass  and  compile  the 
statements  of  votes  cast  for  electors  for  President  and  Vice-Presi 
dent  ;  that  oven  if  the  statutes  should  bo  construed  as  conferring  such 
jurisdiction  upon  the  returning  officers  to  appoint  electors,  they  are 
in  conflict  with  the  constitution  of  the  State  of  Louisiana,  which  re 
quires  the  electors  to  be  appointed  by  the  State;  that  the  said  return 
ing  board  was  not  constituted  according  to  law,  because  it  did  not 
contain  the  elements  required  bylaw ;  that  the  action  of  the  said  re 
turning  officers  was  false  and  fraudulent ;  that  perjury  was  commit 
ted  with  their  knowledge,  and  at  their  instance,  by  which  the  lawful 
vote  of  the  people  of  Louisiana  was  overthrown  and  disregarded ; 
that  the  lawful  returns  of  votes  were  subtracted  and  suppressed,  and 
their  places  supplied  by  forged  returns  made  at  the  instance  and  re 
quest  of  the  said  members  of  the  returning  board  ;  that  two  of  tho 
persons  claiming  to  have  been  appointed  electors,  A.  B.  Lovissee  and 
O.  H.  Brewster,  were  at  the  time  of  their  alleged  election,  on  the  7th 
of  November  and  subsequently,  persons  holding  offices  of  trust  and 
profit  under  the  United  States  j  that  there  was  no  canvass  of  votes  of 


the  State  of  Louisiana  made  in  accordance  with  the  constitution  and 
laws  of  that  State  on  which  certificates  of  election  were  issued  unto 
the  said  Kellogg  and  his  seven  associates ;  and  that  the  alleged  can 
vass  on  which  the  certificates  were  issued  to  said  Kellogg  were 
founded  on  an  act  of  usurpation  by  the  board  of  returning  officers, 
and  were  fraudulent  and  void. 

The  Constitution  of  the  United  States  provides  that  "each  State 
shall  appoint,  in  such  manner  as  the  Legislature  thereof  may  direct,  a 
number  of  electors."  The  same  Constitution  requires  that  each  State 
of  this  Union  shall  have  a  government  republican  in  form,  which  is 
guaranteed  by  the  United  States.  The  power  to  appoint  electors  i« 
thus  plainly  vested  in  that  political  entity  of  our  system  called  a  re 
publican  State,  a  government  popular  in  form  and  representative  in 
its  character,  and  which  can  speak  only  by  its  agents  and  through  its 
laws.  The  fundamental  law  of  a  State  exists  under  our  system  in  a 
written  constitution,  which  is  created  by  the  sovereign  power  of  the 
people  acting  in  their  primary  capacity  of  self-government  and  re 
presented  under  our  republican  theory  by  a  majority  of  the  citizens. 
Until  the  fundamental  law  represented  in  the  written  constitution  of  a 
State  shall  have  been  repealed  it  must  be  accepted  as  the  highest  ex 
pression  of  the  will  of  the  State  upon  the  subjects  to  which  it  relates. 
The  limitations  it  contains  over  the  powers  of  the  various  depart 
ments  and  officers  of  the  State  are  all  to  be  maintained  and  respected. 

In  this  view  the  execution  of  the  power  and  duty  of  the  State  to 
appoint  electors  for  President  and  Vice-President  is  the  substantial 
fact  and  the  action  of  the  State's  Legislature  is  the  mere  modus  or 
manner  of  the  State's  performance.  I  do  not  hold  that  the  Constitu 
tion  of  the  United  States  contemplated  the  deposit  in  the  "  Legisla 
ture  "  of  a  State  of  the  control  of  the  appointment  of  electors  as  a 
body  distinct  from  the  State  itself,  with  power  to  act  independently 
and  regardless  of  the  arrangements  of  the  constitution  of  tho  State. 
All  power  vested  in  the  Legislature  of  a  State  is  defined  and  limited 
by  the  State  constitution,  and  all  laws  passed  by  any  State  Legisla 
ture  in  violation  of  the  constitution  of  a  State  are  as  absolutely  void 
as  if  passed  in  violation  of  the  Constitution  of  the  United  States, 
being  thereTore"rKeTealjiW,i't  the  land.  The  Legislature  of  a  State, 
clearly  subordinate  to  the  will  of  the  State'as  e$$M8&3SPfB&9kM£ 
tution,  cannot  give  validity  to  any  statute  which  violates  the  princi 
ples  of  republican  government  in  a  State  or  deprives  tho  people  of 
that  State  of  their  rights  intended  to  be  secured  against  encroach 
ment  by  any  of  their  rulers  or  officials  by  the  terms  of  their  written 
constitution  and  charter  of  powers. 

The  constitution  of  the  State  of  Louisiana  in  article  98  prescribes 
that— 

Every  male  person,  of  the  ago  of  twenty-one  years  or  upward,  born  or  naturalized 
in  the  United  States,  and  subject  to  the  jurisdiction  thereof,  and  a  resident  of  this 
State  one  year  next  preceding  an  election,  and  the  last  ten  days  within  tho  parish 
in  which  he  offers  to  vote,  shall  he  deemed  an  elector,  except  those  disfranchised 
hy  this  constitution,  and  persons  under  interdiction. 

Article  103  prescribes  that — 

The  privilege  of  free  suffrage  shall  he  supported  by  laws  regulating  elections, 
prohibiting  under  adequate  penalties  all  undue  influence  thereon  from  bribery, 
tumult,  or  other  improper  practice. 

Under  these  safeguards  and  qualifications  the  right  of  suffrage  in 
Louisiana  is  intended  to  be  exercised  and  cannot  lawfully  be  dimin 
ished  or  destroyed  by  the  action  of  the  Legislature  or  its  agents. 
The  right  to  vote  would  be  an  empty  and  idle  form  if  not  accom 
panied  by  the  right  to  have  such  vote  counted ;  and  yet  the  result 
of  the  arguments  to  which  we  have  listened,  and  the  examination 
of  the  constitution  and  laws  of  the  State  of  Louisiana  which  it  has 
induced  me  to  make,  has  been  to  satisfy  me  that  the  provisions  of 
the  constitution  of  Louisiana  intended  to  secure  and  promote  the 
privilege  of  free  suffrage  in  that  State  are  utterly  nugatory  if  the  law 
of  November  20,  1872,  entitled  "  An  act  to  regulate  the  conduct  and 
to  maintain  the  freedom  and  purity  of  elections,"  &c.,  shall  be  exe 
cuted  as  it  evidently  has  been  by  the  State  board  of  canvass  created 
by  the  second  section,  simply  because  it  is  shown  by  the  offers  of  evi 
dence  made  in  this  case  to  this  Commission,  and  which  for  the  pur 
pose  of  the  present  argument  must  be  considered  as  proven,  that,  not 
withstanding  upward  of  five  thousand  State  officials,  registers,  and 
commissioners  of  election  were  appointed,  being  an  average  of  nearly 
one  official  for  every  thirty  voters  in  the  State,  all  selected  under  tho 
authority  of  the  governor  of  the  State  and  removable  at  his  will,  all 
selected  to  obey  and  represent  the  will  of  one  only  of  the  political 
parties  in  the  State,  notwithstanding  that  in  addition  to  this  force 
nearly  twenty-five  hundred  United  States  marshals,  selected  from 
the  same  party  and  for  the  same  political  interest,  notwithstanding 
the  presence  of  large  detachments  of  troops  of  tho  United  States 
under  the  same  control;  that  having  thus  entire  control  of  the  regis 
tration  of  all  the  voters  of  the  State,  in  which  no  interference  by  the 
courts  was  permitted,  having  every  voting-place,  every  registration- 
list,  and  all  police  authority  exclusively  in  the  hands  of  their  own 
party,  a  returning-board,  imperfect  in  its  numbers  and  still  more  im 
perfect  in  its  political  composition,  under  the  law  should  be  enabled 
not  only  to  obstruct  but  wholly  to  overthrow  the  results  of  the  exer 
cise  of  that  free  suffrage  which  the  constitution  of  tho  State  was  in 
tended  to  secure  to  its  citizens,  and  to  convert  a  majority  of  nearly 
10,000  votes  in  favor  of  the  candidates  of  one  of  the  political  parties, 
as  clearly  established  by  the  ballots  cast  and  still  in  existence,  as  well 
as  by  the  duplicate  returns  of  the  elections  which  did  not  reach  the 


ELECTORAL  COMMISSION. 


215 


hands  of  the  State  returning  board  of  canvass,  into  a  majority  of 
three  thousand  and  upward  for  the  defeated  candidates.  In  such  a 
state  of  facts,  which,  let  me  ask,  shall  be  held  to  represent  the  State 
of  Louisiana :  her  constitution,  commanding  "  that  the  privilege  of 
free  suffrage  shall  be  supported  by  laws  regulating  elections,  and  pro 
hibiting  under  adequate  penalties  all  undue  influence  thereon  from 
power,  bribery,  tumult,  or  other  improper  practices"  or  an  act  of  the  Leg 
islature,  practically  overthrowing  the  constitution  and  placing  the 
whole  power  and  result  of  elections  in  the  hands  of  a  board  of  return- 
ing-officers,  whose  duty  is  succinctly  defined  and  expressed  in  their 
oath  of  office  to  "  carefully  and  honestly  canvass  and  compile  the 
statements  of  the  votes,"  and  from  whom  the  constitution  expressly 
withheld  judicial  powers  ? 

What  is  "  the  manner"  in  which  the  State  of  Louisiana  has  directed 
her  electors  for  President  and  Vice-President  shall  be  chosen  ?  By 
the  popular  vote  according  to  the  provisions  of  her  constitution,  and 
if  it  shall  appear  that  the  Legislature  have  disregarded  and  violated 
this  provision  of  the  constitution,  ia  it  not  our  plain  duty  to  respect 
the  constitution  and  not  the  law  passed  in  violation  thereof  ? 

But  in  the  case  before  us  we  are  not  called  upon  by  the  facts  offered 
to  be  proven  to  us  to  decide  between  a  law  and  the  Constitution  under 
which  it  is  assumed  to  have  been  passed,  because  we  are  asked  by 
those  who  propose  that  we  should  receive  the  certificate  of  William 
Pitt  Kellogg  and  his  seven  associates  as  being  the  true  and  lawful 
electoral  votes  of  the  State  of  Louisiana  to  shut  our  eyes  to  the 
plainest  violations  and  overthrow  not  only  of  the  constitution  of  the 
State  and  the  system  of  free  popular  government  it  wasiutended  to 
secure,  but  also  the  statute  under  which  the  returning  board  profess 
to  find  warrant  for  their  action. 

It  has  been  admitted  that  the  election  of  November  7,  1876,  in 
Louisiana  was  held  under  the  law  of  November  20,  1872,  and- 1  pro 
pose  briefly  to  consider  the  powers  and  duties  of  the  State  returning 
board  of  canvassers  under  that  act.  In  the  first  place,  as  to  the 
quorum  who  assumed  to  act.  The  general  object  of  the  law  (see  sec 
tion  103  of  the  constitution)  is  alleged  to  be  "to  support  the  privi 
lege  of  free  suffrage."  Section  2  provides  that  the  number  of  the 
board  shall  be  five  persons,  and  that  it  shall  be  composed  of  "  all 
political  parties."  A  majority  of  the  board  "  shall  constitute  a  quo 
rum,  and  have  po"wer  to  make  the  returns  of  all  electors." 

In  case  of  any  vacancy  by  death,  resignation,  or  otherwise,  by  either  of  the 
board,  then  the  vacancy  shall  be  filled  by  the  residue  of  the  board  of  returning 
officers. 

It  is  a  public  fact  and  embraced  in  the  offers  of  proof  to  this  Com 
mission  that  four  persons  only,  for  two  years  and  upward  have  com 
posed  the  board,  which,  by  the  language  of  the  act,  shall  consist  of 
five  persons ;  that  all  of  these  four  were  members  of  the  republican 
party;  and  that  althongh  86,000  registered  voters  and  citizens  of  the 
democratic  party  are  in  the  State  of  Louisiana,  not  one  of  them  has 
ever  been  elected  to  fill  the  vacancy,  although  it  is  also  shown  the 
demand  has  been  made  frequently  and  always  in  vain  on  the  part  of 
the  democratic  party  to  have  the  vacancy  on  the  board  filled  by  one 
of  their  members. 

In  thus  requiring  the  board  to  consist  of  "  all  political  parties  " 
there  was  a  recognition  of  the  usage  and  actual  state  of  affairs 
throughout  the  United  States  as  to  party  lines.  No  one  denies  that 
this  country  is  potentially  governed  by  political  parties,  and  that 
party  organization  is  usually  necessary  for  the  success  of  any  public 
object.  The  laws  of  every  State  in  the  Union  in  response  to  the 
American  demand  for  fair  play  and  justice,  and  in  recognition  of  the 
existence  of  political  parties,  provide  that  all  parties  shall  be  repre 
sented  upon  a  political  board  of  canvass  or  of  election.  The  laws  of 
the  United  States  appointing  supervisors  by  the  circuit  courts  of  the 
united  States  provide  that  they  shall  be  of  different  political  parties. 
It  is  therefore  reasonably  argued  by  the  objectors  to  the  action  of  the 
Louisiana  returning  board  that  their  refusal  to  obey  the  mandate 
of  the  law  to  fill  the  vacancy  so  that  all  parties  should  be  represented 
in  the  board  is  of  itself  proof  of  fraud.  The  law  upon  this  siibject 
was  well  laid  down  by  Mr.  Justice  MILLER,  a  member  of  this  Com 
mission,  in  the  case  of  Schenck  vs.  Peay,  1  Woolworth's  Circuit  Court 
Reports,  175: 

"We  understand  it  to  be  well  settled  that  where  authority  of  this  kind  is  conferred 
on  three  or  more  persons,  in  order  to  make  its  exercise  valid,  all  must  be  present 
and  participate,  or  have  an  opportunity  to  participate,  in  the  proceedings,  although 
some  may  dissent  from  the  action  determined  on.  The  action  of  two  out  of  three 
commissioners,  to  all  of  whom  was  confided  a  power  to  be  exercised,  cannot  be  up 
held  when  the  third  party  took  no  part  in  the  transaction  and  was  ignorant  of  what 
was  done,  gave  no  implied  consent  to  the  action  of  the  others,  and  was  neither  consulted 
by  them  nor  had  any  opportunity  to  exert  his  legitimate  influence  in  the  determination 
of  the  course  to  be  pursued.  Such  is  the  uncontradicted  course  of  the  authorities,  so  far 
as  we  are  advised,  where  the  power  conferring  the  authority  has  not  prescribed  a 
different  rule. 

In  order  to  constitute  a  valid  quorum  of  the  returning  board,  which, 
under  the  act,  may  consist  of  three  persons,  such  quorum  shall  con 
tain  the  different  and  integral  parts  necessary  for  the  composition 
of  the  original  board ;  in  other  words,  that  the  quorum  of  three  in 
order  to  act  in  accordance  with  the  law  shall  contain  "all  parties"  in 
its  composition,  and  for  want  of  such  composition  its  action  would 
be  invalid.  All  four  of  the  members  of  the  board  being  republicans 
and  no  democrat  being  allowed  to  take  part  in  its  action,  it  was  de  • 
fective  in  an  element  essential  to  its  lawful  existence,  and  which 
was  equally  demanded  by  common  decency  as  well  as  the  law. 


The  duty  of  the  board  when  duly  organized  is  "  carefully  and  hon 
estly  to  compile  the  statements  of  the  votes,  and  make  a  true  and  cor 
rect  return  of  the  election,"  as  is  set  forth  in  their  official  oath.  They 
are  to  meet  within  ten  days  after  the  closing  of  the  election  to  can 
vass  and  compile  "  the  statements  of  votes  made  by  the  commissioners  of 
election,"  and  make  returns  to  the  secretary  of  state.  The  canvass  and 
compilation  shall  be  made  from  the  statements  of  the  commissioners 
of  election,  whose  returns  are  to  be  opened  by  the  presiding  officer  of 
the  board  in  its  presence.  From  such  statements  the  canvass  is  to  bo 
made  ;  and  no  authority  is  given  for  any  compilation  excepting  from 
the  statements  of  the  commissioners  of  election.  They  shall  canvass  and 
compile  the  returns  of  election  from  all  polls  or  voting-places  at  which 
there  shall  have  been  a  fair,  and  free,  and  peaceable  registration  and 
election  ;  and  no  jurisdiction  is  given  to  them  to  question  the  state 
ments  of  the  commissioners  of  election  as  returned,  except  as  provided 
by  section  26  of  the  same  act.  By  section  26  it  is  provided  that  if  riot, 
tumult,  acts  of  violence,  intimidation,  and  disturbance,  bribery,  and 
corrupt  influences  shall  occur  and  prevent,  or  tend  to  prevent,  a  fair, 
free,  peaceable,  and  full  vote  of  all  the  qualified  electors,  it  shall  be 
the  duty  of  the  commissioners  of  election,  if  such  occurrences  shall 
take  place  on  the  day  of  election,  or  of  the  supervisor  of  registration 
of  the  parish,  if  they  have  occurred  during  the  time  of  registration, 
(which  is  sixty  days  prior  to  the  day  of  election,)  to  make  in  duplicate 
and  under  oath  a  clear  and  full  statement  of  all  the  facts  relating  to  such 
riot,  tumult,  &c.,  and  state  the  effect  produced  by  such  riot,  tumult, 
&c.,  and  the  number  of  qualified  voters  who  were  deterred  by  such 
acts  of  riot  and  tumult  from  registering  or  voting  ;  and  such  state 
ments  shall  be  corroborated  under  oath  by  three  respectable  citizens,  qual 
ified  electors  of  the  parish,  and  shall  be  forwarded  by  the  commissioner 
of  election  or  supervisor  of  registration  in  duplicate  to  the  supervisor 
of  registration  in  the  parish,  and  if  in  the  city  of  New  Orleans  to  the 
secretary  of  state,  one  copy  of  which  shall  be  forwarded  to  "  the  re 
turning  officers  provided  for  in  section  2  of  this  act."  The  commis 
sioner  of  election  shall  annex  his  copy  of  such  statement  "  to  his  re 
turns  of  election,  by  paste,  wax,  or  some  adhesive  substance,"  so  that 
the  same  can  be  kept  together ;  and  the  other  copy  shall  be  delivered 
to  the  clerk  of  the  court  of  the  parish  for  the  use  of  the  district  at 
torney. 

It  will  therefore  be  observed  that,  in  order  to  institute  any  question 
by  the  returning  board  or  to  give  them  any  pretense  for  the  exercise  of 
any  other  than  the  ministerial  power  to  canvass  and  compile  the  votes 
from  the  statements  before  them  under  the  hand  of  the  commissioners 
of  election,  it  is  essential  that  they  shall  have  such  statements  cor 
roborated  under  oath,  as  is  provided  by  the  law,  and  in  the  absence  of 
such  statements  made  and  returned  according  to  law  they  are  wholly 
without  authority  or  jurisdiction  to  examine  into  or  determine  any 
facts  that  occur  on  the  day  of  the  election  in  any  part  of  the  State, 
or  to  exercise  any  power  whatever  in  changing  the  result  of  the  votes 
as  sealed  and  certified  under  the  statement  of  the  commissioner  of 
the  election. 

A  commissioner  of  election,  it  will  be  observed,  can  make  no  state 
ment  of  riot,  &c.,  unless  it  occurs  on  the  day  of  the  election,  and  he  must 
make  it  at  the  time  and  in  the  manner  provided  by  law.  It  must  be 
made  while  the  facts  are  fresh  upon  his  mind,  and  his  statement  must 
accompany  his  return  of  the  votes,  which  shall  be  within  twenty- 
four  hours  after  the  closing  of  the  polls.  His  return  shall  be  for 
warded  to  the  supervisor.  The  supervisor  shall  consolidate  and  for 
ward  the  said  report  and  returns  to  the  returning  board  within 
twenty-four  hours;  giving  therefore  forty-eight  hours  after  the  close 
of  the  election  for  the  returns  to  be  forwarded  to  the  board  of  can 
vass,  accompanied  by  the  statements  of  the  commissioners  of  election, 
the  presence  of  which  affidavits  and  statements  of  riot  and  disorder 
can  alone  create  any  jurisdiction  or  warrant  for  any  examination 
into  the  facts  attending  the  election  by  the  board  of  State  canvassers. 

The  statements  of  the  registers  of  election  must  relate  to  occur 
rences  within  the  sixty  days  preceding  the  day  of  the  election ;  and 
such  statements  must  be  forwarded  within  forty -eight  hours  after 
the  polls  have  closed,  as  is  prescribed  for  the  statements  of  the  com 
missioners  of  election,  and  likewise  a  copy  filed  in  the  office  of  the 
county  clerk  for  the  use  of  the  district  attorney,  and ;  it  may  here  bo 
remarked,  not  only  for  the  use  of  the  district  attorney,  but  as  a  noti 
fication  to  any  person,  being  a  candidate  for  office  and  interested  in 
the  election,  who  shall,under  the  provisions  of  section  3, be  allowed  a 
hearing  before  the  returning  officers  upon  making  application  within 
the  time  allowed  for  the  forwarding  of  the  returns  of  said  election, 
that  is,  within  forty-eight  hours  after  the  close  of  the  election. 

It  is  therefore  obvious  that  in  order  to  warrant  any  examination 
as  is  provided  by  section  3  into  allegations  of  riot,  tumult,  violence, 
&c.,  at  the  different  voting-places  by  the  board  of  returning  offi 
cers,  and  justify  the  slightest  alteration  of  the  returns  or  rejection  of 
votes,  it  is  essential  for  the  protection  of  the  citizens,  of  the  rights  of 
the  candidates,  for  the  purpose  of  public  justice,  that  such  state 
ments  shall  be  made  in  substance,  and  within  the  time,  and  authen 
ticated  in  the  manner  provided  by  the  law,  and  not  otherwise. 

Chief-Justice  Marshall,  in  Thatcher  vs.  Powell,  6  Wheaton,  119,  lays 
down  the  rule  for  the  execution  of  statutory  power,  even  when  exer 
cised  by  a  judicial  court : 

In  summary  proceedings,  where  a  court  exercises  an  extraordinary  power  under 
a  special  statute  prescribing  its  course,  we  think  that  course  ought  to  be  exactly 
observed  and  those  facts  which  give  jurisdiction  ought  to  appear  in  order  to  show 


a  16 


ELECTOEAL  COMMISSION. 


that  its  proceedings  are  cnram  judice.  "Without  this  act  of  assembly  the  order  for 
sale  would  have  been  totally  void.  This  act  gives  the  power  only  on  a  report  to  be 
made  by  the  sheriff.  This  report  gives  the  conrtjurisdiction,  and  without  it  the  court 
is  as  powerless  as  if  the  act  had  never  been  passed. 

The  offer  of  proof  to  this  Commission  goes  to  the  extent  that  not  a 
single  jurisdictional  fact  existed  to  authorize  the  action  of  the  return 
ing  board  in  excluding  votes  in  the  several  parishes. 

In  the  case  before  the  supreme  court,  above  cited,  the  power  of  sale 
could  only  be  exercised  Hpon  "  a  report  made  ly  the  sheriff." 

In  the  case  of  Louisiana  the  investigation  by  the  returning  board 
of  alleged  riot,  &c.,  at  the  polls  could  only  be  made  upon  the  sworn 
and  corroborated  statements  sent  up  within  forty-eight  hours  after  the 
closing  of  the  polls  by  the  commissioners  of  election,  or  the  registers. 

No  such  sworn  statement  as  is  provided  by  law  accompanied  the 
returns  in  a  single  instance,  and  no  jurisdiction  consequently  existed 
to  investigate  and  exclude  polls  or  votes  except  "  in  the  course  exactly  " 
provided  by  the  statute. 

The  proceedings  of  the  returning  board  show  that  they  disregarded 
the  statute  under  which  they  pretended  to  act  and  under  which  alone 
they  had  any  claim  to  jurisdiction,  in  almost  every  particular ;  not 
only  did  they  refuse  to  elect  any  member  of  the  democratic  party, 
representing  more  than  one-half  of  the  voters  of  the  State,  to  fill  the 
vacancy  existing  for  two  years  in  the  board,  but  that  they  did  not  in 
a  single  case  canvass  and  compile  the  returns  of  election  from  the 
"statements  of  the  commissioners  of  election"  as  prescribed  by  law ; 
that  in  the  case  of  every  poll  and  voting-precinct  they  compiled  their 
returns  from  the  consolidated  statements  of  the  supervisors  of  regis 
tration,  which  they  had  no  right  to  consider,  disregarding  entirely 
the  statements  of  the  commissioners  of  election  which  alone  they  were 
warranted  to  consider.  The  powers  of  investigation  given  them  in 
section  3  of  the  act  could  only  be  exercised  in  such  cases  in  which  the 
returns  of  the  commissioners  had  been  accompanied  by  statements 
under  oath  from  the  commissioners  of  election  or  the  supervisors 
of  registration ;  yet  it  is  proven  that  in  not  a  single  case  were 
the  returns  accompanied  by  such  statements  as  alone  could  warrant 
the  returning  board  in  instituting  investigation  into  the  facts  of  al 
leged  riot  and  disorder  at  the  voting-places ;  that  in  fact  the  return 
ing  board  in  making  its  pretended  canvass  did  not  receive  from  any 
poll,  voting-place,  or  parish  in  the  State  nor  have  before  them  any 
statement  as  required  by  section  26  of  the  law  and  which  was  an  essen 
tial  prerequisite  to  the  assumption  or  exercise  of  any  jurisdiction 
whatever  by  the  board  in  the  investigation  or  consideration  of  any 
alleged  disorders  at  the  polls.  Not  only  so,  but  in  the  prosecution  of 
their  unwarranted  investigations  they  refused  to  receive  or  consider 
evidence  which  is  now  offered  to  this  Commission  to  show  that  the  su 
pervisors  of  registration  fraudulently  omitted  from  their  consolidated 
statements  any  mention  of  votes  given  at  certain  polls  and  voting- 
places  within  their  respective  parishes,  so  that  in  canvassing  and 
compiling  the  returns  of  election  from  the  consolidated  statements  of 
the  supervisors  of  registration,  (for  which  they  had  no  legal  warrant,) 
the  returning  board  carried  into  their  canvass  and  compilation  the 
numerous  and  glaring  frauds  committed  by  the  supervisors  of  regis 
tration  in  making  their  consolidated  statements. 

It  is  clear  that  the  law  of  Louisiana  required  the  canvass  and  com 
pilation  of  the  returns  of  election  to  be  made  from  the  returns  of  the 
commissioners  of  election,  and  which  only  could  be  questioned  by  the 
returning  board  when  they  were  accompanied  by  statements  of  vio 
lence,  riot,  &c.,  made  and  forwarded  in  accordance  with  the  law ; 
but  by  unlawfully  adopting  the  consolidated  statements  of  the  super 
visors  of  registration  the  returning  board  willfully  adopted  the  known 
frauds  of  omission  of  votes  cast  in  several  parishes  committed  by  the 
supervisors ;  and  when  such  frauds,  contained  in  the  consolidated 
statements,  were  exposed  and  shown  to  the  returning  board  and  com 
pared  with  the  statements  of  the  commissioners  of  election,  they  will 
fully  and  fraudulently  refused  to  make  any  canvass  of  the  true  ma 
jorities  shown  by  the  statements  of  the  commissioners  of  election ; 
that  not  having  any  statements  by  supervisors  of  registration  or  com 
missioners  of  election,  supported  by  affidavit  as  required  by  law,  the 
returning  board,  without  pretense  of  authority,  threw  out  the  entire 
vote  cast  at  the  different  voting-places,  and  sometimes  of  an  entire 
parish  ;  and  that  in  fact  the  only  returns  being  those  of  the  com 
missioners  of  election,  which  by  the  laws  of  Louisiana  should  have 
been  canvassed  and  compiled,  never  were  canvassed  or  compiled  by 
the  returning  board  at  all. 

The  offers  of  proof  contain  a  catalogue  of  specified  crimes,  embrac 
ing  perjury,  forgery,  subornation  of  perjury,  and  conspiracy,  re 
sorted  to  by  this  returning  board  for  £he  purpose  and  with  the  result 
of  defeating  the  constitution  and  the  laws  of  the  State  of  Louisiana 
and  of  depriving  that  State  of  her  right  under  the  Constitution  to 
appoint  electors  for  President  and  Vice-President. 

The  case  presented  for  our  consideration  is  whether  we  will  sustain 
the  Constitution  and  the  right  of  the  State  of  Louisiana  under  it  to 
have  the  voice  of  her  people  as  proclaimed  at  the  election  held  on  No 
vember  7, 1876,  hearkened  unto  and  obeyed,  or  whether  we  will  per 
mit  this  false  personation  of  the  State,  a  band  of  infamous  men  and 
treacherous  officials,  to  palin  off  upon  the  Statoof  Louisiana  and  upon 
every  State  in  this  Union  eight  false  electoral  votes,  and  by  such 
votes  determine  the  possession  of  the  executive  power  of  this  Govern 
ment  for  the  next  four  years,  and  whether  we  as  men  sworn  to  ex 
amine  and  consider  all  questions  submitted  to  this  Commission  agree 


ably  to  the  Constitution  and  the  law  shall  in  the  full  view  of  such  a 
condition  of  law  and  fact  as  I  have  described  set  our  hands  to  the 
statement  that  the  electoral  votes  of  Kellogg  and  his  seven  associates, 
so  manufactured  by  this  usurping  and  lawless  returning  board,  ate 
"the  votes  provided  by  the  Constitution  of  the  United  States,"  and 
that  these  eight  persons  were  "  duly  appointed  electors  in  such  State." 

It  is  beyond  my  comprehension  how  in  the  name  of  the  State  of 
Louisiana  and  the  rights  of  her  people  such  a  decision  can  be  reached, 
or  how  in  the  name  of  the  people  of  all  the  States  of  this  Union,  un 
der  the  Constitution  of  the  United  States  we  can  say,  as  members  of 
this  Commission  or  in  our  respective  places  in  either  House  of  Con 
gress,  that  such  votes  are  the  lawful  votes  provided  by  the  Constitu 
tion  and  laws,  and  that  they  should  bo  counted.  Such  a  decision,  I 
must  frankly  say,  will  shock  the  moral  sense  of  the  country  and  startle 
all  men  who  believe  in  law  and  justice  as  controlling  influences  in 
this  Republic. 

It  has  been  stated  by  counsel  who  appeared  before  this  commission 
on  behalf  of  the  Kellogg  electors  that  the  gross  and  fraudulent  dis- 
franchisement  of  many  thousands  of  citizens  of  Louisiana  by  the  re 
turning  board  has  "been  equaled  or  surpassed  in  its  effect  upon  the 
popular  vote  in  Louisiana  by  the  bloody  hands  of  the  democratic 
party.  Without  pausing  to  comment  upon  this  allegation  of  facts, 
of  which  no  evidence  has  been  offered — and  certainly  none  is  attached 
to  the  papers  opened  by  the  President  of  the  Senate  in  the  presence 
of  the  two  Houses  and  transmitted  to  this  Commission — without  doing 
more  than  merely  to  note  the  strange  inconsistency  of  nearly  every 
speaker,  whether  counsel  or  objector,  whether  Senator  or  Member  of 
the  House  of  Representatives,  who  has  appeared  before  us,  whose 
arguments  or  speeches  have  invariably  closed  with  the  most  whole 
sale  assertions  of  violence  and  intimidation  throughout  the  State  of 
Louisiana,  always  alleged  to  have  been  committed  by  one  party,  the 
democratic,  as  against  the  other  party,  the  republican,  aud  who,  while 
protesting  against  the  admission  of  any  evidence  whether  of  fraud 
or  violence  within  that  State,  yet  have  lost  no  opportunity  to  assert 
and  re-assert  the  existence  of  extreme  violence  and  intimidation 
within  that  State  as  an  excuse,  in  the  nature  of  a  set-off  and  compen- 
sating'influence  to  the  admitted  frauds  of  the  State  officers  of  election 
and  the  returning  board  acting  in  collusion  with  them.  Yet  it  seems 
to  me  that  the  necessary  logic  of  all  such  statements  and  arguments, 
admitting  them  to  be  true,  should  not  be  permitted  in  any  way  to 
strengthen  the  claim  of  those  whose  title  is  imbedded  in  fraud  as  against 
those  whose  title  is  said  to  have  been  created  only  by  violence,  be 
cause  if  the  facts  of  fraud  which  are  offered  to  be  proven,  and  which 
for  the  purposes  of  this  argument  are  to  be  taken  as  established  are 
to  be  considered,  and  in  connection  with  them  a  wholesale  system  of 
riot,  violence  and  bloody  intimidation,  the  result  of  these  charges  com 
bined,  if  established,  Avould  be  to  prove  that  there  was  no  such  thing 
as  a  State  government  existing  in  Louisiana ;  that  there  was  no  State, 
in  the  American  sense  of  the  word,  existing  there  to  choose,  in  such 
manner  as  the  Legislature  thereof  may  direct,  a  number  of  electors ; 
but  a  community  in  which  there  is  no  goverinent  of  law,  republican 
in  form  or  otherwise,  which  is  in  a  condition  of  anarchy,  and  can 
not  with  safety  to  the  remainder  of  this  Union  be  treated  as  a  State  or 
suffered  to  be  represented  by  electors  in  the  choice  of  a  President.  Such 
electors,  if  these  facts  be  true,  are  the  offspring  and  representatives  of 
anarchy,  and  not  of  republican  government ;  and  the  argument  of  the 
counsel  and  the  objectors  who  have  here  appeared  for  the  Kellogg  elect 
ors,  if  it  is  to  prevail,  must  necessarily  exclude  from  the  count  of 
electoral  votes  both  of  the  certificates  and  votes  certified  from  the 
State  of  Louisiana  by  the  respective  claimants. 

But  it  is  also  offered  to  be  proven,  and  for  the  purpose  of  this  argu 
ment  must  be  considered  as  proven,  that  two  of  the  Kellogg  electors, 
O.  H.  Brewster  and  A.  B.  Levissee,  held  offices  at  the  time  of  the  elec 
tion  on  the  7th  day  of  November,  1876,  of  profit  and  trust  under  the 
United  States,  the  said  Levissee  being  a  commissioner  of  the  circuit 
court  of  the  United  States  for  the  district  of  Louisiana,  and  the  said 
Brewster  being  the  surveyor-general  of  the  land  office  of  the  United 
States  for  the  district  of  Louisiana.  By  the  certificate  of  the  Kel 
logg  electors  it-appears  that  on  calling  the  roll  at  the  State-house  in 
the  city  of  New  Orleans  on  the  6th  day  of  December,  1876,  Levissee 
and  Brewster  were  found  not  to  be  present,  and — 

At  the  hour  of  four  p.  m.  the  said  Aaron  B.  Levissee  and  Orlando  H.  Brewster, 
having  failed  to  attend,  the  electors  present  proceeded  to  supply  such  vacancies 
by  ballot,  in  accordance  with  the  statute  of  the  State  of  Louisiana  in  such  case 
made  and  provided,  which  is  in  words  and  figures  as  follows : 

"  If  any  one  or  more  of  the  electors  chosen  by  the  people  shall  fail,  from  any 
cause  whatever,  to  attend  at  the  appointed  place  at  the  hour  of  four  p.  m.  of  toe 
day  prescribed  for  their  meeting,  it  shall  be  the  duty  of  the  other  electors  immedi 
ately  to  proceed  by  ballot  to  supply  such  vacancy  or  vacancies." 

The  six  then  proceeded  to  fill  the  vacancies  occasioned  by  the  fail 
ure  of  Levissee  and  Brewster  to  attend,  and  the  said  Levissee  and 
Brewster  were  declared  unanimously  elected  to  fill  such  vacancy,  and 
being  sent  for,  soon  after  appeared,  and  were  in  attendance  as  electors. 

The  statute  of  the  State  of  Louisiana  under  which  the  alleged 
"  vacancies  "  were  thus  attempted  to  be  filled  was  the  act  of  1868, 
which  was  re-enacted  in  the  precise  words  on  the  14th  of  March,  1870, 
the  date  of  the  act  of  revision,  which  by  its  terms  was  to  go  into 
effect  on  the  1st  day  of  April,  1870.  Two  days  after  the  passage  of 
the  act  of  revision  and  on  the  16th  day  of  March,  1870,  a  general 
election  law  of  the  State  of  Louisiana  was  passed,  to  take  effect  from 
and  after  its  passage.  There  can  be  no  doubt  that  the  later  act  re- 


ELECTORAL  COMMISSION. 


pealed  the  former  wherever  the  provisions  of  the  two  were  incon 
sistent  or  where  the  repeal  shall  be  found  to  have  been  effected  in 
express  terms.  It  cannot  be  doubted  that  it  was  not  competent  for 
the  Legislature  by  passing  a  law  to  take  effect  at  a  future  day  to  pre 
vent  its  repeal  by  subsequent  legislation.  The  provisions  of  the  act 
of  1868  and  of  the  revised  statutes  respecting  the  election  of  elect 
ors  and  the  filling  of  vacancies  have  been  read.  The  law  of  the  16th 
of  March,  1870,  in  section  26,  provides : 

That  all  elections  held  in  this  State  to  fill  any  vacancies  shall  be  conducted  and 
managed,  and  the  returns  thereof  shall  be  made,  in  the  same  manner  as  is  provided 
for  general  elections. 

And  section  35  provides  that  the.  election  for  electors  of  President 
and  Vice-President — 

Shall  be  held  on  the  Tuesday  next  after  the  first  Monday  in  the  month  of  No 
vember,  in  accordance  with  an  act  of  the  Congress  of  the  United  States,  approved 
January  23,  1845,  entitled  "  An  act  to  establish  a  uniform  time  for  holding  elec 
tions  for  electors  of  President  and  Vice-President  in  all  States  of  the  Union ; ' ' 
and  such  elections  shall  be  held  and  conducted,  and  returns  made  thereof,  in  the 
manner  and  form  prescribed  by  law  for  the  general  elections. 

These  are  the  only  two  provisions  respecting  vacancies  or  the  elec 
tion  of  presidential  electors  contained  in  the  act.  The  final  section 
of  the  act,  section  85,  provides  : 

That  all  laws  or  parts  of  laws  contrary  to  the  provisions  of  this  act,  and  all  laws 
relating  to  the  same  subject-matter,  are  hereby  repealed,  and  that  this  act  shall  take 
effect  from  and  after  its  passage. 

It  appears  therefore  that  the  act  of  March  16,  1870,  was  in  pan 
materiel  with  the  act  of  1868,  and  the  act  of  revision  of  March  14, 1870. 
It  provided  for  the  filling  of  vacancies  by  election.  It  provided  for 
the  election  of  electors  for  President  and  Vice-President.  Whether 
as  fully  as  prior  acts  or  not  is  not  the  question ;  but  the  law  con 
trolled  the  subject,  and  by  the  terms  of  section  85,  repealed  expressly 
"  all  laws  relating  to  the  same  subject-matter." 

But  on  November  20, 1872,  was  passed  the  general  election  law  under 
which  the  election  of  November,  1876,  was  held.  The  provisions  of 
this  last  act  which  relate  to  the  subject  of  the  election  of  presiden 
tial  electors,  or  to  the  subject  of  filling  vacancies  in  office,  are  to  be 
found  in  sections  24,  28,  29,  30,  and  32. 

Section  28  provides  only  for  a  new  election  to  be  held  in  case  of 
vacancy  caused  by  death  or  otherwise  in  the  office  of  Representative 
in  Congress. 

Section  30  provides  for  filling  by  election  vacancies  in  the  seat 
of  any  senator  or  representative  in  the  General  Assembly. 

Section  29  provides — 

That  in  every  year  in  which  an  election  shall  be  held  for  electors  of  President 
and  Vice-President  of  the  United  States,  such  election  shall  bo  held  at  the  time 
iixod  by  act  of  Congress. 

Section  32  provides — 

That  the  provisions  of  this  act,  except  as  to  the  time  of  holding  elections,  shall  ap 
ply  in  the  election  of  all  officers  whose  election  is  not  otherwise  provided  for. 

Section  24  provides — 

That  all  elections  to  be  held  in  this  State  to  fill  any  vacancies  shall  be  conducted 
and  managed,  and  returns  thereof  shall  be  made,  in  the  same  manner  as  is  pro 
vided  for  general  elections. 

Section  71  provides — 

That  this  act  shall  take  effect  from  and  after  its  passage,  and  that  all  others  on 
the  subject  of  election  laws  be,  and  the  same  are  hereby,  repealed. 

It  cannot  be  denied  that  the  election  of  electors  for  President  and 
Vice-President  was  provided  for  in  the  act  of  1872,  and  that  by  sec 
tion  32  the  provisions  of  that  law,  except  as  to  the  time  of  holding 
elections,  were  made  applicable  to  all  officers  whose  election  is  not 
otherwise  provided  for.  There  is  no  other  provision,  whether  for 
original  election  or  filling  vacancies,  than  those  to  which  I  have  re 
ferred.  It  is  therefore  subsequent  legislation  in  relation  to  the  same 
subject  as  the  acts  of  1868  and  1870  and  the  act  of  revision  of  1870  ; 
and  therefore  it  would  appear  by  the  ordinary  rules  of  construction 
that  a  repeal  had  been  effected  of  all  the  provisions  of  the  earlier 
acts  which  related  to  the  same  subject.  But  how  can  we  escape  the 
force  of  the  repealing  clause  of  section  71  (which  provides -that  all 
other  acts  on  the  subject  of  election  laws  shall  be  and  hereby  are  re 
pealed)  construed  in  connection  with  sections  24,  29,  and  32  ? 

If  this  view  of  the  statutes  of  Louisiana  be  correct  and  the  act  of 
November  20,  1872,  is  to  be  considered  the  sole  and  complete  regula 
tion  of  the  subject  of  the  appointment  of  electors  and  filling  vacan 
cies,  should  any  exist,  an  inspection  of  its  terms  will  show  that  it 
contains  no  provisions  whatever  on  the  subject  of  filling  vacanciesin 
the  post  of  elector  except  by  new  elections,  and  no  authority  what 
ever  for  the  re  maining  electors  to  fill  vacancies  in  their  college. 

But  the  Constitution  of  the  United  States,  as  I  have  before  stated 
when  considering  the  case  of  the  State  of  Florida,  in  authorizing  the 
appointment  by  each  State  of  its  number  of  electors,  inhibits  the  ap 
pointment  of  either  more  or  different  persons  than  is  there  described. 
The  State  of  Louisiana  shall  appoint  eight  electors,  "  but  no  Senator 
or  Representative,  or  person  holdinfj  an  office  of  trust  or  profit  under  the 
United  States,  shall  be  appointed."  The  inhibition  is  plain  and  unmis 
takable.  If  an  appointment  be  made  by  the  State  in  violation  of  this 
provision  of  the  Constitution  such  appointment  is  absolutely  void. 
The  State  can  no  more  appoint  a  disqualified  person  an  elector  than 
she  can  appoint  a  person  in  excess  of  her  constitutional  number  of 
electors  ;  and  those  who  count  the  electoral  votes  can  no  more  dis 
regard  the  provisions  of  the  Constitution  in  respect  of  qualifica 
tion  than  they  can  in  regard  to  number.  The  votes  of  Levissee  and 


Brewster,  both  being  holders  of  offices  of  trust  and  profit  under  the 
United  States  on  the  7th  of  November,  the  time  of  their  appointment, 
can  no  more  be  counted  than  if  they  had  both  died  the  week  previous. 
They  are  not  eligible.  The  Constitution  of  the  United  States  in  affix 
ing  the  qualification  of  Senators  and  Representatives  distinguishes 
between  ineligibility  at  the  time  of  election  and  ineligibility  at  the  time 
of  filling  the  office.  Thus  : 

No  person  shall  be  a  Representative  who  shall  not  have  attained  the  age  of  twonty- 
flve  years,  and  been  seven  years  a  citizen  of  the  United  States,  and  who  shall  not 
when  elected,  be  an  inhabitant  of  that  State  in  which  he  shall  be  chosen. 

And  so  of  a  Senator  : 

No  person  shaU  be  a  Senator  who  shall  not  have  attained  to  the  a^o  of  thirty 
years,  and  been  nine  years  a  citizen  of  the  United  States,  and  who  shall  not  when, 
elected,  be  an  inhabitant  of  that  State  for  which  he  shall  be  chosen. 

Frequent  decisions  by  either  House  of  Congress  have  shown  that 
if  when  the  person  elected  comes  forward  "to  be"  a  Representative 
or  Senator  he  shall  then  by  that  time  have  attained  the  constitutional 
age  he  is  considered  as  qualified ;  but  if  it  should  be  shown  that  when 
elected  he  was  not  an  inhabitant  of  that  State  for  which  he  was  chosen 
he  could  not  be  admitted. 

So,  in  the  sixth  section  of  the  first  article  of  the  Constitution : 
No  Senator  or  Eepresentative  shall,  during  the  time  for  which  he  was  elected,  bo 
appointed  to  any  civil  office  under  the  authority  of  the  United  States,  which  shall 
have  been  created  or  the  emoluments  whereof  shall  have  been  increased  duiin" 
such  time. 

We  find  an  absolute  prohibition  of  the  appointment  during  the 
time  in  question.  Therefore  it  ia  plain  that  as  Levissee  and  Brewster 
both  held  offices  of  trust  and  profit  under  the  United  States  on  the 
7th  of  November,  1876,  and  for  some  days  subsequently,  the  State  of 
Louisiana  was  inhibited  by  the  Constitution  from  making  such  ap 
pointment. 

As  to  the  suggestion  that  these  inhibitory  clauses  of  the  Constitu 
tion  are  not  self-enforcing,  it  would  be  very  difficult  to  imagine  how 
legislation  can  add  to  the  force  of  the  inhibition.  Its  repetition  in  a 
different  frame  of  words  would  not  make  it  clearer  or  more  powerful. 
In  the  clause  under  consideration  it  is  a  limitation  upon  the  power  of 
the  State  to  do  a  certain  act.  Each  State  shall  appoint  a  number  of 
electors,  but  she  shall  not  appoint  certain  classes  of  persons.  It  has 
been  held  too  often  by  the  Supreme  Court  of  the  United  States  that 
the  inhibitory  clauses  of  the  Constitution  are  all  mandatory  and  self- 
executing  to  make  it  necessary  to  produce  the  various  cases  affirma 
tive  of  this  doctrine.  Perhaps  it  may  be  said  that  by  far  the  greater 
number  of  the  clauses  of  the  Constitution  are  self -executing,  such  as 
the  power  of  the  two  Houses  over  their  respective  members,  the 
power  of  impeachment,  and  the  inhibitions  upon  States : 

No  State  shall  enter  into  any  treaty,  alliance,  or  confederation  j  grant  letters  of 
marque  and  reprisal ;  coin  money ;  emit  bills  of  credit ;  make  anything  but  gold 
and  silver  coin  a  tender  in  payment  of  debts ;  pass  any  bill  of  attainder,  ex-post 
facto  law,  or  law  impairing  the  obligation  of  contracts,  or  grant  any  title  of  no 
bility. 

All  these  inhibitory  clauses  and  many  others  have  been  held  self- 
executing  and  are  recoguized  by  every  court  in  the  land,  State  and 
Federal,  as  controlling  legislation.  It  can  scarcely  be  treated  as  an 
invasion  of  the  rights  of  the  State  of  Louisiana  in  the  count  of  the 
electoral  votes  to  see  that  the  Constitution,  which  controls  the  sub 
ject,  has  not  been  violated.  There  is  no  difference  in  the  result  of 
voting  for  an  ineligible  man,  or  voting  for  a  dead  man,  or  voting  in 
blank.  The  result  in  all  such  cases  is  the  same,  to  wit,  a  failure  to 
elect.  It  has  been  lately  determined  in  a  case  growing  out  of  the  late 
election  in  the  State  of  Rhode  Island,  in  which  a  centennial  commis 
sioner  of  the  United  States  received  a  majority  of  the  votes  cast  in  the 
State  of  Rhode  Island  for  the  office  of  presidential  elector,  and  in  re 
sponse  to  the  inquiry  of  the  governorthe  judges  of  the  supreme  court 
of  the  State  advised  him  that  having  held  an  office  of  trust  under 
the  United  States  Mr.  Corliss  was  ineligible  to  be  appointed  on  No 
vember  7,  and  that  the  failure  to  elect  had  not  cr?ated  a  vacancy, 
but  that  under  the  provisions  of  section  134  of  the  Revised  Statutes 
of  the  United,  States  whenever  any  State  has  held  an  election  for  the 
purpose  of  choosing  electors  and  has  failed  to  make  a  choice  on  the 
day  prescribed  by  law  the  electors  may  be  appointed  on  a  subsequent 
day  in  such  manner  as  the  Legislature  of  such  State  may  direct;  and 
under  this  authority  the  Legislature  of  the  State  of  Rhode  Island 
was  convened  by  the  governor  and  an  eligible  person  appointed 
elector  to  supply  the  failure  to  elect  on  the  7th  of  November.  Sec 
tion  133  of  the  Revised  Statutes  provides  that — 

Each  State  may,  by  law,  provide  for  the  filling  of  any  vacancies  which  may  occur 
in  its  college  of  electors  when  such  college  meets  to  give  its  electoral  vote. 

From  the  review  just  made  of  the  statutes  of  Louisiana,  I  am  of 
opinion  th»t  no  statute  exists  authorizing  the  filling  of  a  vacancy  in 
the  office  of  elector ;  and  even  should  it  be  held  that  the  statute  of 
1868  is  still  in  force  as  respects  the  office  of  presidential  elector,  yet 
it  is  manifest  that  there  were  no  vacancies  in  the  case  of  Levissee  and 
Brewster,  who  being  ineligible  at  the  time  of  their  appointment  such 
attempted  appointment  was  utterly  void  ;  and  that  if  the  failure  to 
elect  which  had  thus  occurred  in  these  two  cases  was  to  be  remedied 
it  was  under  the  authority  of  section  134,  and  not  otherwise. 

The  binding  force  of  the  constitutional  limitation  upon  the  power 
of  the  State  to  appoint  electors  such  office-holders  as  Levisseo  and 
Browster  is  equally  binding  upon  this  Commission  in  exercising  the 
powers  of  the  two  Houses  of  Congress  over  the  count  of  the  electoral 


218 


ELEOTOllAL  COMMISSION. 


vote.  I  do  not  see  bow  we  can  decide  that  these  votes  are  to  be 
counted  "  agreeably  to  the  Constitution  and  laws  "  when  they  are  so 
plainly  forbidden  by  both. 

In  full  view  therefore  of  the  combined  and  separate  exercise  of 
powers  by  the  Senate  and  House  of  Representatives  over  the  accept 
ance  or  the  rejection  of  electoral  votes,  I  cannot  comprehend  the  abdi 
cation  of  all  power  whatever  by  a  Commission  so  plainly  and  expressly 
endowed  with  powers  over  this  subject,  and  the  issues  plainly  framed 
and  submitted  for  their  consideration  and  decision  under  the  terms 
of  their  organic  law  and  under  the  Constitution  and  existing  law. 
To  "  take  into  view  "  petitions,  not  petitions  to  this  Commission,  but 
petitions  to  either  or  both  Houses  of  Congress  ;  to  "  take  into  view  " 
depositions,  not  merely  depositions  taken  under  the  order  of  this  Com 
mission,  but  depositions  which  includes  affidavits  (held  by  both 
Houses  to  be  synonymous  therewith)  taken  under  the  order  of  either 
or  both  Houses  of  the  Congress ;  "  and  other  papers,"  such  papers  as 
parliamentary  bodies  create  and  receive  and  consider,  which  may  "  be 
competent  and  pertinent,"  for  what  and  to  what  ?  To  the  decision  of 
parliamentary  and  legislative  subjects  ;  for  it  is  with  the  powers  and 
duties  of  two  parliamentary  bodies  that  this  Commission  is  invested. 
To  circumscribe  these  methods  of  broad  and  substantial  examination 
to  the  proportions  of  mere  technical  proceedings  in  courts  of  common 
pleas  would  be  simply  to  ignore  the  law  and  to  refuse  to  exercise  our 
plain  duties  and  powers  under  it.  I  will  not  assume  that  this  Com 
mission  will  commit  so  grave  au  offense. 

I  have  felt  very  deeply  the  necessity  of  not  only  deciding  this  case 
according  to  law  and  justice,  but  also  of  satisfying  the  moral  sense  of 
our  fellow-countrymen.  Montesquieu  has  told  us  that  as  honor  is 
of  vital  essence  to  a  monarchy  so  is  morality  to  a  republic.  I  am 
perfectly  aware  of  the  real  condition  of  the  State  of  Louisiana. 
I  am  aware  that  what  they  are  pleased  to  term  "  the  rights  of  the 
State  of  Louisiana"  have  been  most  loudly  proclaimed  and  sought  to 
be  protected  in  argument  before  this  Commission  against  the  slightest 
invasion  by  many  who  view  with  complacency  her  Government  and 
her  people  to-day  in  absolute  subjection  to  the  Army  of  the  United 
States  and  its  official  head.  I  recognize  fully  the  abnormal  condition 
of  affairs  that  grew  out  of  and  has  succeeded  a  period  of  civil  war 
and  wide-spread  revolution.  I  have  had  no  object  so  near  to  my 
heart  and  none  which  has  drawn  from  me  more  of  my  energies  than 
the  restoration  of  all  parts  and  sections  of  this  country  to  their  former 
harmonious  and  normal  relations  to  each  other  and  to  their  common 
government.  I  cannot  shut  my  eyes  to  the  fact  that  the  disorder  and 
crime  of  all  grades  which  mark  the  history  of  the  last  few  years  in 
Louisiana,  and  yet  which  I  believe  have  been  shockingly  and  shame 
lessly  exaggerated  for  political  purposes,  has  been  chiefly,  almost 
wholly,  the  result  of  the  destruction  of  local  self-government  in  that 
State  by  the  constant  interference  of  Federal  power,  invariably  in  favor 
of  tha  t  ono  of  the  pol  i  tical  parties  of  that  State  whose  interest  it  has  thus 
beenmade  to  produce  disorder  inordor  to  procure  that  armed  assistance 
without  the  aid  of  which  it  would  long  since  have  disappeared.  The 
eyes  of  the  American  people  must  not  be  closed  to  the  fact  that  if  the 
voting  material  of  a  community  is  corruptible  it  will  be  corrupted ; 
if  it  is  purchasable  it  will  be  bought ;  if  ignorant  it  will  be  deceived ; 
and  if  timid  it  will  be  intimidated ;  if  elections  are  put  up  at  auction 
by  placing  their  control  in  vile  hands,  whom  will  you  blame  ?  Those 
who  have  created  such  an  order  of  things ;  surely  not  those  who  seek  to 
abolish  them.  On  the  one  hand  you  see  property  seeking  protection 
from  plunder  in  the  garb  of  law  and  on  the  other  plunderers  in  the 
garb  of  law  offering  to  sell  the  r  official  powers;  and  thus  property 
seeks  to  buy  immunity  from  plunder  by  bribing  men  in  office,  or  im 
poverished  and  despairing  strikes  down  the  robbers  with  fierce  blow. 

Tribute  was  paid  to  the  Moors  on  the  rock  of  Tarifa,  and  was  only 
held  disgraceful  on  the  part  of  the  merchant  or  trader  who  paid  it, 
because  it  implied  want  of  manhood  in  him  to  submit.  If  the  men 
of  Louisiana  rise  up  and  overthrow  Kellogg  and  his  crew,  thrust 
them  out  of  their  places,  as  they  did  in  September,  1874,  they  are 
instantly  to  be  denounced  and  suppressed  with  a  strong  hand.  If 
they  undertake  to  buy  their  peace  and  protect  the  remnant  of  their 
property  by  paying  part  of  it  to  their  plunderers,  they  are  denounced 
as  corrupt  and  the  results  of  their  purchase  are  taken  away  from  them 
in  the  name  and  for  the  sake  of  honesty  in  elections ! 

The  people  of  the  United  States  have  witnessed  this  for  years. 
They  have  desired  to  test  the  real  will  of  the  people  of  that  State 
and  give  it  an  opportunity  for  fair  exhibition  in  public  election  ac 
cording  to  the  rules  of  honest  republican  government. 

The  election  has  been  held — and  under  every  disadvantage  which 
the  official  power  of  the  State  aud  the  United  States  combined  could 
create  to  overcome  the  public  sentiment,  the  result  is  known  to  have 
been  a  clear  and  undoubted  majority  of  from  six  to  ten  thousand  votes 
in  favor  of  the  entire  democratic  or  conservative  ticket,  including  the 
electors  for  President  and  Vice-President.  And  in  the  face  of  this 
fact  the  contrary  is  formally  certified  by  Kellogg  aud  his  associates. 
The  frauds  open,  glaring,  and  astounding  which  have  been  committed 
by  this  returning  board  and  other  officials  into  whose  hands  the  en 
tire  control  of  the  election  has  been  delivered,  stink  in  the  nostrils 
of  the  public.  The  election  in  Louisiana  no  longer  is  confined  in  its 
ettects  to  the  people  of  the  State.  It  has  become  a  national  scandal 
and  shame.  The  prolonged  interference  by  the  Federal  Goverment 
in  the  affairs  of  that  State  has  been  all  on  one  side  and  always  with 
the  same  bad  results ;  and  now  the  people  of  the  United  States  de 


mand  that  the  question  shall  be  decided  by  the  two  Houses  of  Con 
gress  according  to  law  and  justice. 

In  this  case  I  believe  that  the  certificates  of  Kellogg  and  of  the 
returning  board  are  absolutely  and  thoroughly  false  and  fraudulent. 
I  believe  that  the  will  of  the  State  of  Louisiana  has  been  misrepre 
sented  and  falsified  by  the  action  of  her  officials,  and  that  the  means 
of  proof  as  to  what  was  the  choice  of  that  State  in  the  election 
of  November  7  are  attainable,  capable  of  production,  capable  of  re 
duction  to  a  certainty  ;  and  that  we  have  no  right  in  law  or  morals 
to  declare  that  electoral  votes  in  such  palpable  defiance  of  the  con 
stitution  and  laws  of  the  State,  in  defiance  of  the  express  and  proven 
will  of  the  lawful  voters  of  the  State,  in  defiance  of  the  plain  in 
hibitions  of  the  Constitution  of  the  United  States  should  be  counted 
in  the  choice  for  President  and  Vice- President  of  the  United  States. 


STATE   OF   OREGON. 

On  Wednesday,  the  21st  of  February,  the  case  of  Oregon  came  bo- 
fore  the  Commission.  There  were  two  certificates,  one  signed  by 
Odell,  Watts,  and  Cartwright,  certified  by  themselves  alone  as  presi 
dential  electors ;  the  other  return  signed  by  Cronin,  Miller,  and  Par 
ker  as  electors,  accompanied  by  the  certificate  of  La  Fayette  Grover, 
the  governor  of  Oregon,  stating  that  William  H.  Odell,  John  C.  Cart- 
wright,  and  E.  A.  Cronin  had  received  the  highest  number  of  votes 
cast  at  the  general  election  held  in  Oregon  on  the  7th  day  of  Novem 
ber,  1876,  for  persons  eligible  under  the  Constitution  of  the  United 
States  to  be  appointed  electors  of  President  and  Vice-President  of  the 
United  States.  This  certificate  was  attested  by  S.  F.  Chadwick,  sec 
retary  of  state  of  Oregon,  and  to  it  was  affixed  the  great  seal  of  the 
State. 

The  facts  of  the  case  are  that  J.  W.  Watts,  who  was  voted  for  as 
one  of  the  Hayes  electors,  received  15,206  votes,  W.  H.  Odell  received 
15,206  votes,  J.  C.  Cartwright  received  15,206  votes,  E.  A.  Cronin  re 
ceived  14,157  votes.  These  facts  donotappear  in  either  the  governor's 
certificate  of  electors  provided  by  act  of  Congress  or  by  the  certificate 
of  the  electors  themselves  required  by  the  Constitution  of  the  United 
States,  but  are  derived  from  papers  and  evidence  on  file  in  the  office 
of  the  secretary  of  state  of  Oregon,  who  by  law  is  made  the  custo 
dian  of  the  same,  and  has  certified  to  their  existence  and  correctness 
in  the  usual  manner,  having  been  applied  to  by  Odell,  Cartwright, 
and  Watts  for  copies  of  the  same,  and  the  same  having  been  furnished 
by  him  in  accordance  with  their  request. 

In  the  cases  of  Florida  and  Louisiana,  this  Commission,  by  a  vote  of 
8  to  7,  refused  to  receive  any  evidence  aliunde  the  certificates  of  the 
officials  of  the  State  containing  what  has  been  characterized  as  "  the 
final  determination"  of  the  State  by  its  board  of  canvassing  officers 
of  the  result  of  the  election.  Therefore,  after  argument  and  delib 
eration  in  the  cases  of  Florida  and  Louisiana,  it  was  decided  that  the 
certificate  of  a  State  board  of  canvass  must  be  taken  as  conclusive 
of  the  facts  it  alleged,  and  could  not  be  in  any  way  impeached  either 
for  fraud  or  error,  nor  would  they  permit  investigation  and  proof  to 
be  made  of  the  tabulated  returns  from  the  various  precincts  of  the 
State  upon  which  the  compilation  and  canvass  by  the  board  had  been 
made.  Offers  of  proof  were  made  to  this  Commission  to  show  that 
the  board  of  canvass  in  Florida  had  reached  an  erroneous  result  by 
exceeding  their  jurisdiction,  and  that  the  courts  of  Florida  having 
competent  jurisdiction  had  decided  this  fact ;  but  this  Commission 
refused  to  hear  or  consider  any  evidence  tending  to  show  the  errone 
ous  basis  upon  which  the  board  of  canvass  in  Florida  had  proceeded. 

In  the  case  of  Louisiana  this  Commission  refused  to  hear  or  con 
sider  evidence  showing  that  the  board  of  canvass  in  that  State 
had  proceeded  wholly  outside  of  their  statutory  jurisdiction,  had 
made  their  protended  canvass  without  any  regard  whatever  to  the 
law  under  which  they  should  have  acted,  had  been  guilty  of  the 
grossest  frauds  in  making  their  returns,  and  that  the  result  of  their 
action  was  wholly  fraudulent  and  unjust,  completely  defeating  the 
will  of  the  people  of  the  State  of  Louisiana  as  expressed  by  them  at 
the  polls.  This  refusal  to  consider  evidence  aliunde  the  certificates 
was  based  by  the  majority  of  the  Commission  upon  the  ground  that 
the  rights  of  the  State  should  be  sedulously  guarded  and  protected 
against  the  counting  power  of  the  two  Houses  of  Congress,  and  that 
even  were  it  to  be  admitted  that  certificates  were  falsely  and  fraudu 
lently  furnished  to  persons  not  in  law  and  in  fact  chosen  as  electors,  this 
being  done  by  the  official  organs  of  the  State  for  certifying  the  result 
of  elections,  such  persons  so  furnished  with  false  certificates  became 
nevertheless  de  facto  if  not  de  jure  the  possessors  of  the  insignia  of 
office,  and  not  being  dispossessed  of  such  insignia  until  after  the  func 
tions  of  the  office  had  been  executed  on  the  6th  day  of  December, 
1876,  their  acts  as  electors  de  facto  must  on  the  ground  of  public  policy 
be  sustained,  and  that  the  remedy  must  be  found  elsewhere  than  in 
the  two  Houses  of  Congress  to  punish  them  for  their  misconduct  and 
repair  the  injury  they  have  committed. 

The  State  board  of  canvass  in  Florida  consisted  of  three  persons, 
the  attorney-general,  the  secretary  of  state,  and  the  comptroller  of 
public  accounts,  whoso  duty  it  is  "  to  canvass  the  returns  of  election 
and  declare  who  s.hall  have  been  elected,  *  *  *  as  shown  by  such 
returns."  The  supreme  court  of  the  State  of  Florida  have  given  a  con 
struction  to  the  statute  under  which  the  State  board  of  canvass  acts, 
and  held  the  powers  of  that  board  to  be  ministerial  in  their  nature, 
and  that  they  were  not  invested  with  such  discretion  as  enabled  them. 


ELECTORAL  COMMISSION. 


219 


to  make  a  declaration  of  "  the  legal  vote  "  as  distinguished  from  "  the 
true  vote  actually  cast." 

Yet  this  Commission  held  itself  bound  by  the  certificate  of  the 
State  board  of  canvass  of  Florida,  and  refusing  to  regard  or  consider 
the  judicial  proceedings  in  that  State  deciding  the  very  question  and 
fact  of  the  true  election  of  electors,  refused  to  go  behind  the  said 
certificate  or  suffer  the  same  to  be  questioned  or  in  any  way  impeached, 
because  they  alleged  that  the  action  of  the  officers  of  the  State  of 
Florida  to  whom  the  duty  of  canvassing  and  certifying  the  result  had 
been  committed  by  the  laws  could  not  be  questioned,  however  erro 
neous  or  fraudulent,  or  unwarranted  by  the  laws  of  the  State  the 
same  may  have  been. 

In  the  State  of  Louisiana  the  board  of  canvass  consists,  under  the 
law,  of  five  persons.  This  Commission  refused  to  hear  or  consider 
evidence  showing  that  four  men,  unlawfully  assuming  to  exercise  the 
powers  of  the  said  board,  had  falsely  certified  the  results  of  said  elec 
tiou,  and  that  their  action  in  pretending  to  canvass  and  compile  the 
returns  from  the  said  State  of  Louisiana  was  in  fact  a  wicked  con 
spiracy  against  the  rights  of  the  people  of  that  State,  her  constitu 
tion,  and  her  laws ;  and  this  refusal  to  allow  the  certificate  of  the 
returning  board  of  Louisiana  to  be  impeached  for  fraud  and  other 
illegality  was  based  upon  the  fact  that  it  was  not  competent  for  this 
Commission  to  impeach  or  question  the  final  determination  of  the 
officials  to  whom  had  been  committed  the  canvass  of  the  returns  of 
the  election  in  the  State. 

Let  us  now  apply  these  decisions  of  the  Commission  to  the  case  of 
Oregon. 

In  section  37  of  the  election  laws  of  Oregon  it  is  provided  that — 

The  county  clerk,  immediately  after  making  the  abstract  of  tlie  votes  given  in 
his  county,  shall  make  a  copy  of  each  of  said  abstracts,  and  transmit  it  by  mail  to 
the  secretary  of  state  at  the  seat  of  government ;  and  it  shall  be  the  duty  of  the  secre 
tary  of  state,  in  the  presence  of  the  governor,  to  proceed  within  thirty  days  after  the 
election,  and  sooner,  if  the  returns  be  all  received,  to  canvass  the  votes  given  for 
secretary  and  treasurer  of  State,  State  printer,  justices  of  the  supreme  court,  mem 
ber  of  Congress,  and  district  attorneys. 

Section  58  of  the  same  law  provides  : 

On  the  Tuesday  next  after  the  first  Monday  in  November,  18G4,  and  every  four 
years  thereafter,  there  shall  be  elected  by  the  qualified  electors  of  this  State  as 
iuany  electors  of  President  and  Vice- President  as  this  State  may  bo  entitled  to  elect 
of  Senators  and  Kepresentatives  in  Congress. 

""'•tton.  60  provides  that — 

Ihe  votes  to i\u^ ,    ,,  ,  .      ,  ,        , 

same  are  given,  returned,  and'cM^ySI'  received,  returned,  and  canvassed  as  the 
state  shall  prepare  two  lists  of  the  names  of  the7fec^r^fKS^re8S- -,  T^  se°retaryof 
the  State  to  the  same.  Such  lists  shall  be  signed  by  the  governorlinasecrharS&un 
by  the  latter  delivered  to  the  college  of  electors  at  the  hour  of  their  mooting  on  such 
first  Wednesday  of  December. 

Thus  it  will  be  observed  that  the  secretary  of  state  in  Oregon  is 
the  canvassing  officer,  whose  duties  are  in  substance  the  same  as  those 
imposed  upon  the  boards  of  canvass  in  Florida  and  Louisiana.  It  is 
provided  that  the  governor  is  to  be  present  at  the  canvass,  but  the 
canvass  itself  is  to  be  made  by  the  secretary  of  state ;  and  when  he 
has  canvassed  the  votes  he  is  to  prepare  two  lists  of  the  names  of  the 
electors  elected  and  affix  the  seal  of  the  State  to  the  same.  What 
ever  powers  of  judgment  and  discretion  which  are  incident  to  the 
power  to  canvass  returnsand  certify  the  result  are  therefore  as  plainly 
committed  to  the  secretary  of  state  of  Oregon  under  the  laws  of  that 
State  as  to  the  boards  of  canvass  of  either  Florida  or  Louisiana  under 
the  laws  of  those  States  respectively. 

"  The  secretary  of  state  shall  prepare,"  not  lists  of  votes  such  as  are  on 
file  in  his  office,  but  "  lists  of  the  names  of  the  electors  elected."  Therefore 
in  the  preparation  of  those  lists,  in  ascertaining  the  names  of  the 
electors  elected,  the  secretary  of  state  necessarily  determines  and  de 
clares  what  persons  were,  by  the  laws  of  Oregon  and  by  the  returns 
which  he  has  canvassed,  chosen  the  true  electors  of  that  State.  Such 
lists  so  prepared  by  him  shall  be  signed  by  the  governor  and  by  the 
secretary,  have  the  seal  of  the  State  affixed  thereto,  and  be  delivered 
by  the  secretary  to  the  college  of  electors  at  the  hour  of  their  meet 
ing  on  the  first  Wednesday  in  December. 

The  only  certificate  thus  made  in  accordance  with  the  laws  of  Ore 
gon  by  the  board  of  canvass  of  that  State  authorized  to  express  the 
final  determination  of  the  State  of  Oregon  is  certificate  No.  2,  by 
which  it  appears  that  William  H.  Odell,  John  C.  Cartwright,  and  E. 
A.  Cronin  had  received  the  highest  number  of  votes  cast  at  said  elec 
tion  for  persons  eligible  under  the  Constitution  of  the  United  States 
to  be  appointed  electors.  Criticism  has  been  made  upon  the  insertion 
of  the  words  "  for  persons  eligible."  These  words  certainly  would  be 
mere  surplusage,  and  the  certificate  would  be  as  true  without  them 
as  with  them,  for  if  it  read  that  they  had  been  "  duly  elected"  would 
have  been  to  state  the  same  fact  in  a  different  form  of  words. 

Persons  not  eligible  cannot  be  elected  ;  but  the  presence  of  these 
words,  "  for  persons  eligible,"  is  mere  surplusage,  not  affecting  the 
form  or  the  substance  of  the  fact  of  election  certified.  Suppose  the 
words  "  for  persons  eligible  "  to  have  been  omitted,  and  that  the  num 
ber  of  votes  stated  to  have  been  cast  for  Croniu  and  the  other  candi 
dates  had  been  wholly  omitted  (and  no  law  requires  them  to  be  stated) 
or  had  been  falsely  stated,  then  according  to  the  rule  laid  down  by 
this  Commission  in  the  cases  of  Florida  and  Louisiana  we  would  have 
been  without  power  to  hear  evidence  allunde  the  certificate  or  to 
exclude  the  votes  so  falsely  certified.  The  decision  of  the  Commis 
sion  was  to  the  effect  that  no  error,  intentional  or  unintentional,  on 
the  part  of  the  board  of  canvass,  no  excess  of  jurisdiction,  no  fraud 
however  glaring  could  be  questioned  or  redressed ;  yet  it  is  now  pro 


posed  to  examine  the  powers  and  proceedings  of  the  canvassing  offi 
cer  of  final  determination  of  the  State  of  Oregon  after  having  refused 
to  do  the  same  thing  in  regard  to  the  States  of  Louisiana  and  Florida. 

To  the  secretary  of  state  of  Oregon  are  confided  the  duty  and 
power  to  make  out  the  lists  of  electors  elected.  To  enable  liim  to 
ascertain  who  are  elected,  ho  must  canvass  and  decide.  The  proof 
of  his  decision  is  to  bo  found  in  the  names  of  the  persons  contained 
in  the  lists  so  prepared  by  him,  and  to  whom,  as  the  college  of  elect 
ors,  he  delivers  such  lists.  No  persons  other  than  those  whose  names 
appear  on  such  lists  are  by  the  laws  of  Oregon  armed  with  the  insig 
nia  of  the  office  of  elector.  If  by  fraud  or  mistake  the  secretary  of 
state  should  insert  the  wrong  names  upon  the  lists  or  deliver  the  lists 
to  the  wrong  parties,  yet  it  is  done  by  him  under  the  discretion  nec 
essarily  involved  in  the  execution  of  his  duties,  and  according  to  the 
decisions  of  this  Commission  his  action  cannot  be  impeached  for  error 
in  law  or  fraud  or  mistake  in  fact.  Thus  if  the  secretary  of  state  had 
altered  the  abstracts  of  votes  sent  up  to  him  by  the  clerks  of  the  va 
rious  counties,  this  Commission,  according  to  their  decisions  in  the 
Louisiana  and  Florida  cases,  would  have  refused  to  hear  evidence  to 
prove  it.  If  the  clerks  in  the  various  counties  had  sent  up  forged 
and  false  abstracts,  this  Commission,  according  to  their  decisions, 
would  have  refused  to  allow  it  to  be  proven. 

The  case  may  be  stated  thus :  The  secretary  of  state  of  Oregon, 
seated  at  his  desk  and  having  before  him  the  abstracts  of  votes  from 
the  various  counties,  may  tabulate  and  compile  them  upon  a  sheet  of 
paper,  and  having  finished  this  canvass  and  compilation  ho  can  trans 
fer  the  results  of  his  arithmetical  calculation  to  the  "  lists  of  elect 
ors  elected,"  also  prepared  by  him.  If  in  his  canvass  of  the  abstracts 
of  votes  he  shall  commit  the  most  serious  errors  in  adding  up  the 
columns  of  figures  representing  the  votes  cast  or  if  he  shall  fraud 
ulently  alter  and  misstate  the  abstracts  of  the  votes  before  him  in  his 
canvass,  his  certificates,  which  if  allowed  to  stand  will  completely 
overthrow  the  will  of  the  people  of  Oregon  as  expressed  at  the  polls, 
are,  according  to  the  decisions  of  this  Commission  in  Louisiana  and 
Florida,  unimpeachable  and  impregnable.  But  it  is  said  his  fraud  or 
error  in  the  canvass,  however  gross,  having  been  completed,  cannot- 
be  inquired  into,  but  when  he  comes  to  make  out  his  lists  of  electors 
elected  upon  the  basis  of  his  fraudulent  canvass,  the  accuracy  of  his 
transfer  of  figures  from  one  paper  to  the  other  maybe  inquired  into ; 
in  other  words,  a  canvassing  officer  having  a  consecutive  series  of 
acts  to  perform  under  a  statute  all  of  which  lead  to  and  form  a  single 
result  can  be  impeached  as  to  one  of  these  acts,  and  not  as  to  any  that 
precede  it. 

As  a  matter  of  fact  the  canvass  and  compilation  of  the  votes  of 
Oregon  and  the  preparation  of  the  lists  of  electors  elected  are  per- 
loruioxi  i>y  tv,Q  «a,me  official  at  the  same  time,  and  probably  within 
the  space  of  a  single  nour;  »ua  r  *  ,f  we  ad  t  tho  reasoning  of  tho 
majonty  in  the  Louisiana  and  t  lorida  cases,  we  ma,j  0or«uiS;««  his 
returns  to  see  that  he  has  correctly  transferred  from  his  canvass  of 
the  votes  to  the  lists  of  electors  elected,  certain  arithmetical  results, 
yet  that  we  have  no  power  to  scrutinize  the  features  of  the  transac 
tion  which  immediately  preceded  the  statement  of  those  results ;  and 
that  his  final  certificate  is  a  shield  that  completely  protects  and  covers 
any  and  all  fraud  that  lurks  behind  it. 

I  cannot  bring  my  mind  to  assent  to  such  a  proposition. 

In  the  case  of  Louisiana  offers  were  made  to  this  Commission  to 
produce  the  final  canvass  of  the  returns  of  the  election,  but  they  were 
refused.  The  certificate  of  that  board  of  canvass  was  held  to  bo 
impenetrable  to  the  rays  of  truth.  I  cannot  comprehend  why  the  last 
act  of  a  canvass  should  be  more  open  to  impeachment  than  equally 
essential  acts  which  immediately  preceded  it.  Such  a  decision  im 
plies  that  the  fraud  of  the  same  individual  committed  at  different 
stages  of  his  duty  is  subject  to  different  rules,  although  those  stages 
are  immediately  annexed  to  each  other ;  that  you  can  impeach  one 
act  but  not  its  associates. 

The  certificate  of  the  State  of  Oregon  under  the  seal  of  the  State, 
and  signed  by  the  secretary  of  state  and  the  governor,  is  as  complete 
and  accurate  in  form  and  in  as  substantial  accord  with  the  laws  of 
that  State  as  that  of  Louisiana  or  Florida  which  this  Commission  has 
refused  to  permit  to  be  inquired  into  or  impeached ;  and  yet  it  is  now 
proposed  to  impeach  it  and  overthrow  it  because  other  records  of  tho 
election  of  the  State  of  Oregon  are  produced  and  certified  in  opposi 
tion  to  the  regular  certificate.  This  evidence  is  in  my  judgment  ad 
missible.  It  is  both  competent  and  pertinent  for  us  to  know  the  true 
facts  attending  the  Oregon  election,  and  I  shall  vote  in  the  case  of 
Oregon  as  I  did  in  the  cases  of  Louisiana  and  Florida  for  the  admission 
and  consideration  of  all  evidence  tending  to  show  which  are  the  true 
and  lawful  electoral  votes  of  that  State  provided  for  by  the  Constitu 
tion  of  the  United  States. 

One  feature  of  difference  between  the  cases  of  Florida  and  Lou 
isiana  and  that  of  Oregon  is  that  no  allegation  from  any  quarter  is 
made  of  fraud  in  the  canvassing  officers.  It  is  admitted  on  all  sides 
and  contradicted  nowhere  that  tho  election  was  fair  and  free  in  that 
State,  and  that  a  majority  of  more  than  one  thousand  votes  were  cast 
by  the  people  of  that  State  for  Odell,  Watts,  and  Cartwright  as  pres 
idential  electors ;  but  it  is  proven  to  us  that  John  W.  Watts,  one  of 
the  persons  so  voted  and  for  whom  the  highest  number  of  votes  were 
cast,  was  on  the  7th  of  November,  1876,  and  until  the  13th  day  of  the 
same  month,  a  postmaster  of  the  United  States  at  the  town  of  La 
Fayette,  in  Oregon.  Holding,  therefore,  an  office  of  trust  and  profit 
under  the  United  States,  he  could  not  under  the  provision  of  the  Con- 


220 


ELEOTOKAL  COMMISSION. 


stitution  bo  appointed  an  elector.  Having  already  considered  this 
question  in  the  cases  of  ineligible  electors  in  Louisiana,  I  shall  not 
repeat  my  remarks  on  that  subject. 

I  have  not  yet  been  able  to  comprehend  the  force  of  the  argument 
that  the  provisions  of  the  Constitution  prohibiting  the  appointment 
as  electors  of  certain  official  classes  can  be  held  self-executing  on  the 
Gth  of  December  but  not  salf -executing  on  the  7th  of  November ;  and 
this  in  the  teeth  of  the  plain  words  affixing  the  disqualification  upon 
the  person  and  the  limitation  upon  the  power  of  the  State.  It  has 
seemed,  however,  satisfactory  to  some  minds  to  hold  that  this  pro 
vision  of  the  Constitution  grows  in  power  and  changes  in  nature 
within  the  thirty  days  which  lie  between  the  appointment  of  the 
elector  and  the  time  fixed  for  the  performance  of  his  single  function ; 
that  the  Constitution  executes  itself  on  the  Gth  of  December,  but 
cannot  do  so  without  aid  of  legislation  in  the  month  of  November. 

What  was  the  result  of  a  majority  of  the  people  of  Oregon  casting 
their  votes  for  a  person  thus  holding  office  under  the  United  States  f 
We  find  in  the  papers  annexed  to  the  certificate  of  Watts  and  his  as 
sociates  that  on  the  Gth  day  of  December  at  the  meeting  of  Cartwright 
and  Odell  as  electors  the.  resignation  of  Watts  as  an  elector  for  Presi 
dent  and  Vice-President  of  the  United  States  for  the  State  of  Oregon 
was  presented  by  Odell  and  after  being  duly  read  was  "  unanimously  " 
accepted;  that  by  this  resignation  and  the  acceptance  thereof  a  va 
cancy  in  the  electoral  college  was  said  to  have  been  created,  which 
vacancy,  under  the  provisions  of  section  59  of  the  election  laws  of  Ore 
gon,  the  said  Odell  and  Cartwright  assumed  the  power  to  fill ;  that 
they  proceeded  to  fill  such  "  vacancy"  by  electing  the  said  John  W. 
Watts,  and  the  college  being  so  filled  the  three  proceeded  to  cast 
their  votes  by  ballot  for  Hayes  and  Wheeler  as  President  and  Vice- 
Presideut  of  the  United  States. 

According  to  my  views  of  the  Constitution  and  laws  as  heretofore 
expressed,  the  failure  of  the  people  of  Oregon  to  elect  an  eligible  per 
son  to  the  office  of  elector  did  not  create  a  vacancy ;  but  that  having 
failed  to  elect  on  the  day  appointed  by  law  it  was  requisite  if  the 
failure  was  intended  to  be  remedied  to  resort  to  the  means  prescribed 
by  the  one  hundred  and  thirty-fourth  section  of  the  Eevised  Statutes 
of  the  United  States.  There  has  been  no  legislation  by  the  State  of 
Oregon  on  this  subject,  nor  did  her  Legislature  on  any  subsequent 
day  appoint  an  elector  to  fill  her  electoral  college. 

Section  48  of  the  election  laws  of  Oregon  provides  for  vacancies  in 
office,  and  is  in  the  words  following : 

Every  office  shall  become  vacant  on  the  occurring  of  either  of  the  following 
events  oof  ore  the  expiration  of  the  term  of  such  oflice : 

1.  The  death  of  the  incumbent ; 

2.  His  resignation ; 

3.  His  removal;  natm  fm- 

4.  His  ceasing  to  be  an  inhabitant  of  the  district.  nr>«-^  *•"''','  ul   village >  roi 
which  he  shall  have  been  elects  5-  -rf^SSf,  or  within  which  the  duties  of  his 
olhVo  o"°  -.,-*» c.a  tv,  w  uiscnarged  ; 

5.  His  conviction  of  any  infamous  crime,  or  of  any  offense  involving  a  violation 
of  his  oath ; 

C.  His  refusal  or  neglect  to  take  his  oath  of  office,  or  to  give  or  renew  his  official 
bond,  or  to  deposit  such  oath  or  bond  within  the  time  prescribed  by  law ; 

7.  The  decision  of  a  competent  tribunal,  declaring  void  his  election  or  appoint 
ment. 

None  of  the  vacancies  above  described  is  the  case  now  under  con 
sideration.  It  is  true  that  Mr.  Watts  tendered  his  resignation  of  the 
office  of  elector  claiming  to  have  been  elected  on  the  7th  of  Novem 
ber  ;  but  in  opposition  to  that  view  is  the  plain  mandate  of  the  Con 
stitution  of  the  United  States  that  he  should  not  be  appointed,  conse 
quently  he  could  not  resign  an  office  he  had  never  held,  nor  by  any 
act  of  his  could  he  create  a  vacancy  in  such  office. 

Therefore,  I  hold  that  the  State  of  Oregon  had  no  power  to  appoint 
John  W.  Watts,  holding  then  an  office  of  trust  and  profit  under  the 
United  States,  one  of  her  electors ;  that  his  attempted '  election  was 
absolutely  void  ;  and  that  the  failure  to  elect  a  third  elector  has  not 
been  remedied  according  to  the  Constitution  and  laws  of  the  United 
States  and  the  laws  of  the  State  of  Oregon. 

The  question  then  arises  as  to  the  right  of  E.  A.  Cronin,  who  by  the 
certificate  of  the  secretary  of  state  and  governor,  attested  by  the 
seal  of  the  State,  is  certified  to  have  been  one  of  the  persons  who  re 
ceived  the  highest  number  of  votes  cast  at  the  said  election  for  per 
sons  eligible  to  be  appointed  electors.  The  certificate  of  Governor 
Grover  and  the  secretary  of  state  is  honest  and  true  according  to  the 
f?cts.  The  number  of  votes  stated  in  this  certificate  as  having  been 
received  by  Cronin  was  14,157 ;  but  it  is  also  made  known  to  us  by 
evidence  aliunde  the  certificate,  and  in  this  case  received  by  the 
Commission,  that  a  greater  number  of  votes  were  cast  for  John  W. 
Watts.  Governor  Grover  has  been  assailed  in  terms  of  unmeasured 
violence  and  reprobation  for  issuing  the  certificate  which  is  before 
us,  in  which  he  has  adopted  a  construction  of  the  sixteenth  section 
of  article  2  of  the  constitution  of  Oregon,  which  provides  that — 

Tn  all  elections  held  by  the  people  under  this  constitution  the  person  or  persons 
who  shall  receive  the  highest  number  of  votes  shall  be  declared  duly  elected. 

Following  the  unbroken  current  of  decision  in  the  courts  of  the 
country  from  which  our  institutions  have  chiefly  been  derived  and 
the  repeated  decisions  of  courts  of  the  highest  jurisdiction  in  many 
of  the  States  of  this  Union,  Governor  Grover  decided,  in  the  execution 
of  the  discretion  reposed  in  him  as  the  executive  branch  of  the  gov 
ernment  of  Oregon,  that  ho  was  bound  to  issue  the  certificate  of  elec 
tion  to  the  next  highest  competing  candidate  in  a  case  like  the  pres 
ent  where  the  candidate  who  had  received  the  highest  number  of 
votes  was  ineligible  to  be  appointed ;  and  it  is  very  difficult  to  answer 


the  authorities  and  arguments  by  which  this  position  has  been  sup 
ported  before  us. 

The  very  able  arguments  which  we  have  heard  upon  this  subject 
and  the  elaborate  briefs  of  authorities  submitted  for  our  instruction, 
if  they  are  not  adequate  to  control  us  in  the  adoption  of  the  view 
taken  by  Governor  Grover  iu  this  case,  are  more  than  sufficient  to 
place  his  action  upon  a  high  plane  of  conscientious  discretion,  which 
lifts  him  to  a  level  withas  sound  and  reputable  jurists  as  have  adorned 
the  bench  of  England  or  of  the  United  States.  If  he  has  erred  in 
his  decision,  his  error  has  been  justified  by  learned  and  able  decisions 
and  reasoning  which  must  appeal  strongly  to  the  judgment  of  any 
who  have  considered  the  subject  ;  and  yet  I  have  not  been  able  to 
find  under  the  laws  of  Oregon  or  in  my  conception  of  the  general 
American  law  relating  to  popular  elections  grounds  which  will  en 
able  me  to  concur  in  the  decision  reached  by  him. 

The  underlying  theory  of  our  republican  rule  is  the  residence  of 
power  in  the  majority.  That  minority  candidates  should  fill  places 
by  popular  election  is  contrary  to  our  American  theory,  although 
sometimes  by  constitutional  arrangements  such  a  result  is  reached. 
But  the  meaning,  nevertheless,  of  our  popular  elections  is  simple  and 
clear,  and  a  vote  by  one  thousand  men  for  A  and  a  vote  by  five  hun 
dred  men  for  B,  his  opponent,  proves  not  only  that  the  majority  desire 
that  A  shall  fill  the  office  but  also  that  B  should  not  fill  it.  Where 
election  is  free  it  is  plainly  in  the  power  of  the  popular  will  to  express 
favor  or  condemnation,  and  if  it  should  turn  out  that  the  candidate 
receiving  the  majority  has  been  ineligible  the  popular  will  is  suffi 
ciently  defeated  without  the  addition  of  a  still  further  defeat  by  seat 
ing  the  person  against  whom  they  have  cast  their  votes. 

It  is  evident  to  my  mind  that  the  statutes  of  the  various  States, 
providing  as  they  do  for  the  filling  of  vacancies  and  sometimes  for 
failures  to  elect,  were  all  intended  to  prevent  the  seating  of  minor 
ity  candidates  ;  that  the  policy  and  intent  of  our  systems  of  govern 
ment,  both  State  and  Federal,  is  in  substance  that  none  but  those 
who  represent  the  will  of  the  majority  are  to  hold  office  under  a  pop 
ular  rule.  If  two  men  are  running  for  the  same  office  and  the  suc 
cessful  candidate  dies  on  the  day  after  the  election,  a  vacancy  would 
be  thus  created,  and  it  would  have  to  be  filled  in  some  manner  pro 
vided  by  law,  but  the  defeated  candidate  could  gain  nothing  by  the 
death  of  his  opponent.  If  a  candidate  receives  a  majority  of  the 
votes,  and  upon  inspection  turns  out  to  be  ineligible,  the  rule  u 
the  United  States  statute  and  "  '~~  *'' 


according  to  law  at  the  polls  I  womd  not  bo  willing  to  vote  to  seat  a 
minority^candidate  because  of  the  ineligibility  of  his  opponent,  un 
less  the  laws  pf  the  State  should  expressly  provide  that,  in  the  event 
of  the  ineligibility  of  the  successful  candidate,  the  person  who  had 
received  the  next  highest  number  of  votes  should  be  considered  as 
elected.  I  do  not  understand  that  this  is  provided  for  by  the  laws  of 
Oregon  or  that  any  construction  of  her  constitution  to  this  effect  has 
been  given  by  her  courts.  I  repeat  that  there  are  strong  authorities 
the  other  way,  in  view  of  which  Governor  Grover  can  readily  be  un 
derstood  to  have  felt  himself  justified  in  believing  that  Mr.  Cronin 
was  entitled  to  the  place,  and  certain  it  is  that  his  certificate  that 
Cronin  was  one  of  the  three  eligible  candidates  for  the  office  who  re 
ceived  the  highest  number  of  votes  is  precisely  true  and  is  sustained 
by  all  the  facts  in  the  case. 

The  Constitution  of  the  United  States  is  the  supreme  law  of  the 
land,  and  Governor  Grovels  official  oath  bound  him  to  sustain  it; 
and  it  was  his  duty  to  refuse  to  certify  the  fact  of  an  election  of  a 
United  States  official  to  the  office  of  elector  when  the  same  was  dis 
tinctly  prohibited  by  the  Constitution.  As  the  governor  of  the  State 
he  represents  in  his  own  person  the  executive  branch  of  the  State 
government,  and  is  bound  in  all  respects  to  see  that  the  laws  are  faith 
fully  executed  ;  and  I  therefore  consider  that,  having  personal  and 
official  knowledge  that  Watts  was  a  postmaster  of  the  United  States, 
it  was  his  duty  to  refuse  to  certify  that  ho  had  been  duly  elected  a 
presidential  elector.  It  is,  therefore,  my  j  udgment  that  but  two  votes 
of  the  State  of  Oregon  can  bo  counted,  and  that  they  are  the  votes  of 
Odell  and  Cartwright,  the  Hayes  electors.  . 


STATE   OF  SOUTH   CAROLINA. 

On  the  26th  of  February  the  case  of  the  State  of  South  Carolina 
was  reached,  there  being  two  certificates,  No.  1,  of  C.  C.  Bowen  and 
his  six  associates,  certified  by  D.  H.  Chamberlain  as  governor;  No.  2, 
of  Theodore  E.  Barker  and  his  six  associates,  the  Tilden  electors,  not 
having  any  gubernatorial  certificate  attached.  Objections  were  made 
under  the  law  to  both  of  these  certificates.  It  was  offered  to  bo 
proven  before  this  Commission  that  the  free  election  and  power  of 
appointment  by  the  State  of  her  electors  was  interfered  with  and  con 
trolled  by  the  Army  of  the  United  States  to  the  number  of  several 
thousand  men,  and  by  the  employment  and  presence  at  tho  polls  of 
an  army  of  United  States  deputy  marshals. 

It  is  a  public  fact  of  which  this  Commission  will  take  notice  that 
the  executive  power  of  the  State  of  South  Carolina  was  wholly  in 
the  hands  of  Governor  D.  II.  Chamberlain,  who  was  himself  a  candi 
date  for  re-election  and  had  by  law  the  power  of  appointment  and 
removal  of  every  officer  of  election  throughout  tho  State  ;  and  that 
it  was  at  his  instance  and  in  the  absence  of  such  a  state  of  facts  as 


ELECTORAL  COMMISSION. 


221 


under  the  Constitution  of  the  United  States  alone  would  have  -war 
ranted  it  that  the  State  of  South  Carolina  was  filled  with  troops  of 
the  United  States  for  months  prior  to  the  election,  which  military 
occupation  continues  until  this  day.  The  presence  and  influence  of 
the  troops  were  wholly  lent  to  the  support  of  the  political  party  to 
which  Chamberlain  belongs,  and  were  in  aid  of  his  re-election  and  of 
the  presidential  electors  who  have  obtained  his  certificate. 

The  Constitution  provides  that  the  electors  shall  be  appointed  by 
tlie  State  ;  and  in  the  present  case  it  is  offered  to  be  proven  to  this 
Commission  that  the  actual  power  which  influenced  the  appointment 
of  the  electors  was  extraneous  to  the  State,  and  that  in  truth  and 
fact  the  result  of  the  election  of  electors  in  the  State  of  South  Caro 
lina,  on  the  7th  of  November,  1876,  was  caused  and  controlled  by  the 
unlawful  presence  of  the  agents  and  officials  of  the  Government  of 
the  United  States  ;  so  that  the  choice  was  not  that  of  the  State  or  its 
people  but  of  Federal  officers  who  had  neither  right  nor  color  of 
right  to  interfere  in  the  election  of  that  State. 

It  appears  that  the  Tilden  electors,  Mr.  Barker  and  his  six  associ 
ates,  did  endeavor  by  a  writ  of  quo  warranto  to  dispute  the  election  of 
Bowen  and  his  six  associates,  claiming  that  the  board  of  State  can 
vassers  had  made  an  erroneous,  imperfect,  false,  and  fraudulent  state 
ment  of  the  result  of  the  election ;  but  the  said  suit  is  now  pending 
in  the  court  and  undecided.  They  had  previously  made  application 
in  the  supreme  court  of  the  State  for  a  writ  of  mandamus  to  compel 
the  board  of  State  canvassers  to  correct  the  count  according  to  the 
true  vote  of  the  people  as  cast  at  the  election ;  but  pending  that  pro 
ceeding  the  board  determined  and  certified  the  persons  elected  upon 
their  fraudulent  and  erroneous  count,  and  after  making  a  return  to 
the  court,  and  just  before  the  decision  thereof,  they  secretly  and  un 
lawfully  adjourned  in  defiance  and  contempt  of  the  authority  of  the 
supreme  court. 

This  Commission  will  also  take  notice  of  the  illegal  and  unwar 
ranted  interference  by  Judge  Bond  of  the  circuit  court  of  the  United 
States,  who  by  the  most  flagrant  usurpation  and  outrage,  without 
having  any  jurisdiction  over  the  subject-matter  or  the  persons,  dis 
charged  from  custody  the  board  of  canvass  while  they  were  impris 
oned  for  contempt  of  the  supreme  court  of  the  State  of  South  Car 
olina,  having  disregarded  and  disobeyed  its  mandates  in  respect  of 
the  lawful  and  reg'ular  canvass  of  the  votes  cast  at  said  election. 

While  I  am  making  these  remarks  Senator  FRELINGHUYSEN  lays 
before  me  and  invites  my  present  commentary  upon  certain  express 
ions  made  by  me  in  the  course  of  debate  in  the  Senate  two  years  ago 
when  the  question  of  the  jurisdiction  and  powers  of  the  two  Houses 
of  Congress  over  the  count  of  the  electoral  votes,  came  up  for  consid 
eration.  The  passage  ho  has  marked  is  in  the  CONGRESSIONAL  REC 
ORD,  February  25,  1875,  page  160,  volume  3,  part  3  : 

Mr.  President,  from  the  foundation  of  the  Government  up  to  the  year  1865  the 
American  people  had  managed  to  conduct  the  count  of  the  electoral  votes  for 
President  and  Vice-President  of  the  United  States  -without  any  other  aid  than  the 
constitutional  provision  and  a  single  statute  that  had  been  passed  during  the  first 
presidential  term  of  George  Washington.  In  1792,  on  the  1st  of  March,  an  act  was 
passed  "relative  to  the  election  of  a  President  and  Vice-President  of  the  United 
States,  and  declaring  the  officer  who  shall  act  as  President  in  case  of  vacancies  in 
the  office  both  of  President  and  "Vice-President."  One  thing  is  observable  in  this 
act  of  Congress,  as  in  all  acts  of  that  period  of  our  country's  history,  that  great 
care  was  ta>ken  to  assume  no  power  not  distinctly  granted  or  necessarily  implied 
by  the  terms  of  the  Federal  Constitution. 

Therefore  in  this  law  (which  is  to  be  found  on  pages  305,  306,  307,  and  308  of  the 
last  compilation  of  the  Constitution,  Rules,  and  Manual  provided  by  the  Senate) 
there  will  be  found  no  attempt  to  transcend  the  grant  of  power  of  the  Constitution 
as  to  the  reception  and  count  of  the  electoral  votes.  It  provided  the  method  of 
certification  of  the  results ;  and  it  will  be  observed  that  not  only  was  the  manner 
of  the  election  of  the  electoral  college  confided  to  each  State,  and  to  the  discretion 
of  the  Legislature  of  each  State,  but  that  the  certification,  the  authentication  of  the 
electoral  vote  was  confided  whoHy  and  unreservedly  by  the  Constitution  to  the 
States.  And  nowhere  is  power  given  to  either  House  of  Congress  to  pass  upon  the 
election,  either  the  manner  or  the  iact,  of  electors  for  President  and  Vice-Presi 
dcnt  ;  and  if  the  Congress  of  the  United  States,  either  one  or  both  Houses,  shall 
assnme,  under  the  guise  or  pretext  of  telling  or  counting  a  vote,  to  decide  the  fact 
of  the  election  of  electors  who  are  to  form  the  college  by  whom  the  President  and 
Vice-President  are  to  be  chosen,  then  they  will  have  taken  upon  themselves  an  au 
thority  for  which  I,  for  one,  can  find  no  warrant  in  this  charter  of  limited  powers. 

I  am  very  glad  that  this  extract  from  my  former  speech  has  been 
thus  brought  to  my  attention,  because  I  am  aware  that  it  had  been 
furnished  before  now  to  members  of  this  Commission,  although  I  will 
not  suggest  that  the  object  in  bringing  it  now  to  my  notice  is  to  im 
pale  me  upon  a  supposed  inconsistency  between  my  views  as  ex 
pressed  in  1875  and  now.  To  the  doctrine,  however,  contained  in 
these  remarks  I  can  only  give  my  renewed  approval  and  assent,  al 
though  I  must  frankly  admit  that  within  the  two  years  which  have 
elapsed  I  have  had  a  better  opportunity  for  the  study  and  attention 
of  this  subject,  which  had  been  denied  me  then,  and  which  has  given 
to  my  mind  information  and  light  not  obtained  before.  I  trust  the 
time  will  never  come  when  I  shall  cling  obstinately  to  an  error  which 
can  only  grow  into  a  wrong  by  becoming  willful,  nor  do  I  believe 
that  I  shall  be  found  to  lack  the  courage  to  retract  an  opinion  when 
I  am  convinced  that  it  is  erroneous. 

No  one  believes  more  than  I  in  the  necessity  of  preserving  the  rights 
of  the  State  from  invasion  by  the  authority  of  the  General  Govern 
ment,  and  this  it  is  not  necessary  for  me  now  to  repeat.  I  consider 
the  election  of  electors  to  be  the  act  of  the  States,  who  are  the  sole 
judges  of  the  manner  and  the  fact  of  such  election,  and  that  Congress 
has  no  right  to  interfere  with  such  choice  either  by  military  power  or 
by  coercion  of  swarms  of  deputy  marshals  or  of  the  official  influence 
in  any  shape  of  any  branch  of  the  Federal  Government.  What  I  now 


contend  for  is  that  the  act  of  election  which  I  am  called  upon  thus  to 
respect  as  the  act  of  the  State  shall  be  the  act  of  the  State,  and  not 
the  act  of  a  false  personation  of  a  State.  Thus,  when  in  the  case  of 
Florida  that  State,  by  the  voice  of  every  department  of  her  govern 
ment,  legislative,  judicial,  and  executive,  came  here  before  us  to  CTI- 
treat  us  to  hear  her  voice,  and  to  prove  to  us  that  the  electoral  votes 
sent  up  here  for  Hayes  and  Wheeler  under  the  certificate  of  Governor 
Stearns  were  in  violation  of  the  State's  constitution  and  laws  and 
in  opposition  to  the  will  of  her  people  declared  at  the  polls,  I  felt  it 
to  be  my  duty  to  that  State  to  hear  her  complaint,  and  not  allow  her 
rights  to  be  usurped  by  false  men. 

In  1875,  in  the  debate  in  question,  I  was  considering  a  case  where 
"  the  State"  had  chosen  her  electors  in  fact  and  I  was  endeavoring  to 
protest  against  congressional  interference  with  the  exercise  of  her 
free  will  in  making  such  choice  under  the  Constitution  of  the  United 
States.  I  was  not  then  considering  a  dual  government  or  dual  claims 
to  represent  that  government.  When  two  South  Carolinas  appear, 
each  claimiug  to  cast  votes  for  President  and  Vice-Presidont,  one 
must  bo  false,  and  that  question  must  be  decided  or  the  vote  of  the 
State  rejected. 

Again,  such  a  proposition  as  stated  by  me  in  the  debate  referred  to, 
and  was  applicable  only  to  the  admitted  election  of  a  State.  The 
presence  of  fraud  and  its  effects  in  qualifying  every  proposition  was 
not  then  considered.  The  most  solemn  judgments  and  decrees  of  courts; 
pardons  by  kings  and  rulers ;  every  treaty  or  compact  between  nations 
or  individuals  alike  lose  every  quality  of  obligation  when  touched 
by  fraud.  I  know  of  no  human  contract  more  irrevocable  and  binding 
upon  the  parties  than  that  of  Christian  marriage,  in  which  civil  and 
religious  obligation  combine  to  secure  its  performance.  The  sanction 
under  which  marriage  is  entered  into  is  the  most  solemn  known  to 
civilized  men  ;  yet  who  ever  denied  that  the  tie  could  be  and  ought 
to  be  dissolved  upon  proof  of  fraud  by  one  of  the  parties  in  obtaining 
the  marriage  ?  Fraud  is  a  universal  solvent  and  destroys  whatever  it 
touches,  and  it  ought  to  be  hunted  down  and  crushed  whenever  pos 
sible,  in  order  to  protect  human  society.  Every  proposition  as  to 
legal  or  moral  obligation  must  be  considered  as  made  in  the  absence 
of  fraud,  because  fraud  admitted  as  an  element  displaces  all  the  rea 
soning  which  guides  men  in  the  ordinary  conduct  of  life  or  in  the  ad 
ministration  of  human  laws  and  justice. 

Thus  while  I  hold  that  the  State  of  South  Carolina  had  the  solo 
power  of  choosing  her  electors  and  of  certifying  her  choice  in  h«r  own 
manner,  and  that  no  other  power  can  lawfully  obstruct  and  interfere 
with  her  choice,  when  two  voices  attempt  to  speak  for  that  State  we 
must  ascertain  which  is  the  false  voice  and  which  is  the  true.  The 
power  to  decide  which  is  the  true  voice  has  been  assumed  by  Con 
gress  to  be  vested  in  the  two  Houses,  and  by  the  law  under  which  wo 
are  now  proceeding  this  Commission  is  invested  with  "  the  same  pow 
ers  now  possessed  for  that  purpose  by  the  two  Houses  acting  sepa 
rately  or  together." 

The  power  and  duty  of  decision  thus  being  imposed  upon  us,  the 
only  remaining  question  is  whether  we  shall  execute  that  power  in 
telligently  or  blindly  ;  whether  we  shall  receive  and  consider  such 
evidence  as  in  the  nature  of  things  will  enlighten  our  decision  or 
whether  it  shall  be  excluded,  and  the  false  certificates  and  usurpa 
tions  of  power  be  suffered  to  stand  between  us  and  the  real  State  and 
people  whom  they  falsely  assume  to  represent. 

I  will  admit,  whatever  may  be  my  personal  belief  on  the  subject, 
that  the  fact  is  not  established  before  us  by  competent  testimony 
that  Mr.  Barker  and  his  six  associates  (the  Tilden  electors)  did  re 
ceive  a  majority  of  the  votes  actually  cast  at  the  election  in  Novem 
ber  last  in  South  Carolina ;  and  therefore  I  shall  not  vote  in  favor  of 
such  votes  being  counted ;  but,  on  the  other  hand,  the  fact  is  before 
me  as  a  matter  of  public  knowledge  coupled  with  specific  tenders  of 
evidence  to  establish  it,  and  which  must  be  accepted  as  true  in  the 
consideration  of  this  case,  that  between  the  State  of  South  Carolina 
and  her  free  choice  of  electors  for  President  and  Vice-President  was 
interposed  a  will  and  a  physical  power  stronger  than  her  own,  and 
that  the  election  of  Bowen  and  his  six  associates  as  certified  by  Cham 
berlain,  the  governor,  was  not  the  election  of  the  State  of  South 
Carolina  and  her  people,  but  the  election  controlled  by  the  President 
of  the  United  States  and  the  official  and  political  agents  of  the  party 
in  favor  of  whom  he  unlawfully  lent  the  great  powers  intrusted  to 
his  control  in  disregard  of  the  Constitution,  of  the  law,  and  the 
spirit  of  free  government. 

The  voice  which  comes  up  to  us  in  the  certificate  of  Bowen  and  his 
associates  is  the  voice  of  the  United  States  Army,  of  swarms  of  deputy 
United  States  marshals,  aided  and  abetted  by  the  profligate  abuse  of 
judicial  power  by  Judge  Bond  of  the  United  States  circuit  court.  It 
is  because  I  am  a  true  friend  and  defender  of  the  rights  of  the  State  of 
South  Carolina  that  I  object  to  this  false  expression  of  her  will,  and  this 
military  mockery  of  free  republican  government  which  is  imposed 
upon  her  unfortunate  people. 

We  have  been  urged  to  reject  the  vote  of  this  State  upon  the  ground 
that  no  registration  of  her  electors  has  ever  been  made  or  provided 
for  by  the  Legislature  in  conformity  with  section  3  of  article  8  of  the 
constitution  of  that  State,  which  provides  that — 

It  shall  be  the  duty  of  the  General  Assembly  to  provide  from  timo  to  time  for 
the  registration  of  all  electors. 

It  is  contended  that  by  reason  of  the  failure  of  the  Legislature  to 
provide  such  registration  no  valid  election  has  been  held  in  that 


222 


ELECTORAL  COMMISSION. 


State  since  the  time  of  the  formation  of  its  constitution  in  1868.  To 
this  proposition  I  am  unable  to  agree.  The  second  section  of  the 
same  article  fixes  the  qualifications  of  all  persons  who  "  shall  be  en 
titled  to  vote  for  all  officers  that  are  now,  or  hereafter  may  be,  elected 
by  the  people,  and  upon  all  questions  submitted  to  the  electors  at 
any  election  ;  "  and  among  these  registration  as  a  voter  is  not  enu 
merated.  It  may  be  doubted  whether  any  new  and  additional  quali 
fication  could  be  imposed  by  the  Legislature  upon  the  voters  in  that 
State,  the  section  of  the  constitution  to  which  I  have  just  referred 
having  enumerated  the  qualifications,  and  by  two  provisos  having 
enumerated  all  classes  and  persons  who  are  excluded  from  the  right 
of  suffrage. 


Remarks  of  Mr.  Commissioner  Hunton. 

FLORIDA. 

Mr,  Commissioner  HUNTON  said : 

Mr.  PRESIDENT  :  I  approach  the  consideration  of  the  questions  in 
volved  in  this  case  with  profound  diffidence.  We  are  sitting  as  a 
court,  the  highest  and  most  august  in  the  history  of  the  world. 
Dynasty  is  the  subject-matter  of  the  suit  to  be  tried.  Forty-four 
millions  of  people  are  the  parties  and  the  civilized  people  of  the  world 
are  the  spectators. 

We  are  to  try  a  disputed  presidential  election  in  which  it  is  alleged 
that  fraud  and  force  strangled  the  true  voice  of  several  States  of  this 
Union. 

We  are  to  determine  when  two  or  more  parties  have  spoken  for  a 
State  which  is  the  true  voice  of  that  State.  In  the  case  of  the  State 
of  Florida  now  before  us,  three  papers  purporting  to  be  certificates 
of  electoral  votes  of  that  State  have  been  sent  to  the  President  of  the 
Senate,  and  under  the  law  they  have  been  by  him  opened,  objected  to, 
and  referred  to  this  Commission.  One  gives  the  votes  of  the  State  to 
Hayes,  the  other  two  to  Tilden ;  which  shall  be  counted  ? 

In  order  to  determine  how  we  shall  proceed  and  what  are  our  powers, 
it  is  necessary  to  examine  the  law  under  which  we  are  acting. 

In  the  second  section  it  is  provided  that — 

All  the  certificates  and.  papers  purporting  to  be  certificates  of  the  electoral  votes 
of  each  State  shall  be  opened,  in  the  alphabetical  order  of  the  States,  as  provided 
in  section  1  of  this  act ;  and  when  there  shall  be  more  than  one  such  certificate  or 
paper,  as  the  certificates  and  papers  from  such  State  shall  be  so  opened,  (excepting 
duplicates  of  the  same  return,)  they  shall  be  read  by  the  tellers,  and  thereupon  the 
President  of  the  Senate  shall  call  for  objections,  if  any.  Every  objection  shall  be 
made  in  writing,  and  shall  state  clearly  and  concisely,  and  without  argument,  the 
ground  thereof,  and  shall  be  signed  by  at  least  one  Senator  and  one  member  of  the 
House  of  Representatives  before  the  same  shall  be  received.  When  all  such  ob 
jections  so  made  to  any  certificate,  vote,  or  paper  from  a  State  shall  have  been  re 
ceived  and  road,  all  such  certificates,  votes,  and  papers  so  objected  to,  and  all  pa 
pers  accompanying  the  same,  together  with  such  objections,  shall  be  forwith  sub 
mitted  to  said  Commission,  which  shall  proceed  to  consider  the  same,  with  the  same 
powers,  if  any,  now  possessed  for  that  purpose  by  the  two  Houses  acting  separately 
or  together,  and,  by  a  majority  of  votes,  decide  whether  any  and  what  votes  from 
such  State  are  the  votes  provided  for  by  the  Constitution  of  the  United  States,  and 
how  many  and  what  persons  are  duly  appointed  electors  in  such  State,  and  may 
therein  take  into  view  such  petitions,  depositions,  and  other  papers,  if  any,  as  shall, 
by  the  Constitution  and  now  existing  law,  be  competent  and  pertinent  in  such  con 
sideration. 

This  Commission  has  all  the  powers  now  possessed  for  this  purpose 
by  the  two  Houses  of  Congress  or  either  one.  If  the  two  Houses  or 
either  one  has  any  power  to  look  into  and  decide  these  matters,  then 
that  power  is  conferred  on  this  Commission. 

This  Commission  is  to  decide  whether  any  and  what  votes  from  this 
State  are  the  votes  provided  for  by  the  Constitution,  and  how  many 
and  what  persons  were  duly  appointed  electors  in  this  State,  and  shall 
take  into  view  such  petitions,  depositions,  and  other  papers,  if  any, 
as  shall  by  the  Constitution  and  now  existing  law  be  competent  and 
pertinent  in  such  consideration. 

What  are  the  powers  of  the  two  Houses,  or  either  one  ? 

This  law  was  enacted  on  the  theory  and  concession  that  the  Presi 
dent  of  the  Senate  has  no  power  to  count  the  electoral  vote,  and  that 
power  in  case  of  double  returns  was  committed  to  this  Commission. 

What  is  this  power  to  count  ?  Is  it  merely  to  add  up  and  declare 
the  number  of  votes  from  a  State  ?  This  cannot  be,  because  we  would 
be  stopped  at  the  beginning  by  the  appearance  of  two  or  more  re 
turns.  We  must  determine  which  of  these  returns  is  the  true  return, 
which  of  these  votes  "  are  the  votes  provided  for  by  the  Constitu 
tion,"  and  "  how  many  and  what  persons  were  duly  appointed  electors 
in  such  State."  To  do  this  demands  examination,  scrutiny,  and  con 
sideration  of  all  the  facts  on  which  the  several  sets  of  electors  pro 
ceeded  to  cast  their  votes.  The  law  gives  the  powers  possessed  by  the 
two  Houses  or  either  one  of  them,  and  makes  a  legislative  declara 
tion  of  the  right  and  imposes  the  duty  to  decide  whether  any  and 
what  votes  are  the  votes  provided  by  the  Constitution.  The  two 
Houses  of  Congress  possess  this  power  or  they  have  been  on  many 
occasions  guilty  of  gross  usurpation  of  power.  Doubts  arose  in  1817 
about  the  right  of  the  electors  of  Indiana  to  cast  their  vote.  In  1821 
iu  Missouri,  and  in  1837  in  Michigan.  (See  House  Document  13,  pages 
46,  51,  and  72.)  In  each  of  these  cases  the  votes  of  the  States  were 
counted  in  the  alternative.  In  1865  the  electoral  votes  of  the  eleven 
seceded  States  were  rejected  by  both  Houses  in  the  electoral  count. 
(Page  229. )  In  1869  the  vote  of  Louisiana  was  objected  to  on  the  ground 
of  fraud,  and  the  same  was  considered  and  counted.  (Page  238.)  In 


1873  there  were  two  certificates  and  seven  objections  raised  to  the 
vote  of  Louisiana.  The  vote  of  that  State  was  not  counted.  (Pago 
391.)  In  1873  the  vote  of  Georgia  was  not  counted  because  it  was  cast 
for  a  dead  man.  (Page  407.) 

The  action  of  the  two  Houses  of  Congress  on  these  several  occasions 
shows  that  this  power  in  the  opinion  of  these  Houses  did  exist.  They 
were  precedents  in  existence  when  the  law  framing  this  Commission 
was  enacted  and  must  be  considered  in  construing  the  law.  But  what 
are  the  constitutional  provisions  on  this  subject? 

ARTICLE  II. 

Each  State  shall  appoint,  in  such  manner  as  the  Legislature  thereof  may  direct, 
a  number  of  electors,  equal  to  the  whole  number  of  Senators  and  Representatives, 
to  which  the  State  may  be  entitled  in  the  Congress :  but  no  Senator  or  Representa- 
tive  or  person  holding  an  office  of  trust  or  profit  under  the  United  States,  shall 
be  appointed  an  elector. 

ARTICLE  XII. 

The  electors  shall  meet  in  their  respective  States  and  vote  by  ballot  for  Presi 
dent  and  "Vice- President,  one  of  whom,  at  least,  shall  not  be  an'  inhabitant  of  the 
same  State  with  themselves ;  they  shall  name  in  their  ballots  the  person  voted  for 
as  President,  and  in  distinct  ballots  the  person  voted  for  as  Vice-President,  and 
they  shall  make  distinct  lists  of  all  persons  voted  for  as  President  and  of  all  per 
sons  voted  for  as  Vice-President,  and  of  the  number  of  votes  for  each;  which  lists 
they  shall  sign  and  certify,  and  transmit  sealed  to  the  seat  of  Government  of 
the  United  States,  directed  to  the  President  of  the  Senate.  The  President  of  the 
Senate  shall,  in  the  presence  of  the  Senate  and  House  of  Representatives,  open  all 
the  certificates  and  the  votes  shall  then  be  counted — the  person  having  the  great- 
est  number  of  votes  for  President  shall  be  the  President,  if  such  number  be  a  major 
ity  of  the  whole  number  of  electors  appointed ;  and  if  no  person  have  such  majority, 
then  from  the  persons  haying  the  highest  numbers  not  exceeding  three  on  the  list 
of  those  voted  for  as  President,  the  House  of  Representatives,  shall  choose  immedi 
ately,  by  ballot,  the  President.  But  in  choosing  the  President,  the  votes  shall  bo 
taken  by  States,  the  representation  from  each  State  having  one  vote  ;  a  quorum  for 
this  purpose  shall  consist  of  a  member  or  members  from  two-thirds  of  the  States, 
and  a  majority  of  all  the  States  shall  be  necessary  to  a  choice.  And  if  the  House 
of  Representatives  shall  not  choose  a  President  whenever  the  right  of  choice  shall 
devolve  upon  them,  before  the  4th  day  of  March,  next  following,  then  the  "Vice- 
President  shall  act  as  President,  as  in  the  case  of  death  or  other  constitutional  dis- 
ability  of  the  President. 

The  person  having  the  greatest  number  of  votes  as  Vice-Presidont  shall  bo 
the  Vice-President,  if  such  immber  be  a  majority  of  the  whole  number  of  electors 
appointed;  and  if  no  person  nave  a  majority,  then  from  the  two  highest  numbers 
on  the  list  the  Senate  shall  choose  the  Vice-President ;  a  quorum  for  the  purpose 
shall  consist  of  two-thirds  of  the  whole  number  of  Senators,  and  a  majority  of  the 
whole  number  shall  be  necessary  to  a  choice. 

The  Congress  may  determine  the  time  of  choosing  the  electors,  and  the  day 
on  which  they  shall  give  their  votes;  which  day  shall  be  the  same  throughout  the 
United  States. 

These  are  the  constitutional  provisions  on  this  subject,  and  by  them 
the  power  to  appoint  electors  is  given  to  the  States  to  be  exercised  in 
such  manner  as  the  Legislature  may  direct,  and  the  only  limitation 
on  this  power  to  appoint  is  that  "  no  Senator  or  Representative,  or 
person  holding  an  office  of  trust  or  profit  under  the  United  States, 
shall  be  appointed." 

It  is  conceded  that  the  power  to  appoint  belongs  to  the  State,  but 
it  is  our  power  and  duty  under  this  law  to  decide  who  has  been  ap 
pointed  by  the  State.  The  State  appointed,  if  at  all,  on  the  7th  of 
November,  1876.  The  question  for  us  to  decide  is  whom  did  she  appoint 
or  who  were  duly  appointed  electors  and  which  are  the  votes  pro 
vided  by  the  Constitution. 

I  cannot  doubt  our  power  to  go  into  the  inquiry  which  set  of  elect 
ors  uttered  the  true  voice  of  the  State  of  Florida. 

It  is  offered  in  proof  by  counsel  for  objectors  to  the  certificate  of 
Hayes  electors  as  follows : 

First.  On  December  6.  1876,  being  the  regular  law  day,  both  the  Tililen  and  the 
Hayes  electors,  respectively,  met  and  cast  their  votes  and  transmitted  the  same 
to  the  seat  of  Government.  Every  form  prescribed  by  the  Constitution,  or  by  any 
law  bearing  on  the  subject,  was  equally  complied  with  by  each  of  the  rival  elect 
oral  colleges,  unless  there  be  a  material  difference  between  them  in  this  respect. 
The  certified  lists  provided  for  in  section  136  of  the  Revised  Statutes  were,  as  to 
the  Tilden  electors,  certified  by  the  attorney-general,  and  were,  as  to  the  Hayes 
electors,  certified  by  Mr.  Stearns,  their  governor. 

All  this  appears  of  record ;  and  no  additional  evidence  is  needed  in  respect  to  any 
part  of  it. 

Secondly.  A  quo  warranto  was  commenced  against  the  Hayes  electors  in  the 
proper  court  of  Florida  on  the  said  6th  of  P.  ecember,  1876,  before  they  had  cast  their 
votes,  which  eventuated  in  a  judgment  against  them  on  January  25,  1877,  a  deter 
mination  that  the  Tilden  electors  were  duly  appointed.  The  validity  and  effect  of 
this  judgment  is  determinable  by  the  record,  and  no  intrinsic  evidence  seems  to  bo 
desirable  on  either  side  unless  it  bo  thought — 

1.  That  the  Tilden  electors  should  give  some  supplemental  proof  of  the  precise 
fact  that  the  writ  of  quo  warranto  was  served  before  the  Hayes  electors  cast  their 
votes :  or 

2.  It  be  desired  on  the  other  side  to  show  the  entry  and  pendency  of  an  appeal 
from  the  judgment  in  the>quo  warranto. 

"With  these  two  possible  and  very  slight  exceptions,  the  whole  case  in  this  branch 
of  it  depends  upon  the  record. 

Thirdly.  To  show  what  is  the  common  law  of  Florida,  and  to  show  also  the  true 
construction  of  Florida  statutes,  the  Tilden  electors  desire  to  place  before  the  Com 
mission  the  record  of  a  judgment  of  the  supreme  court  in  that  State  on  a  mandamus 
prosecuted  on  the  relation  of  Mr.  Drew,  the  present  governor  of  that  State,  by  force 
of  which  Mr.  Stearns  was  ousted  and  Mr.  Drew  was  admitted  as  governor.  This 
judgment  together  with  the  court's  opinion  are  matters  of  record  and  they  require 
no  other  proofs,  nor  is  there  any  technical  rule  as  to  the  manner  in  which  this  Com 
mission  may  inform  itself  concerning  the  law  of  Florida. 

Fourthly.  The  legislation  of  Florida  authorizing  a  new  canvass  of  the  electoral 
vote,  and  the  fact  of  such  new  canvass,  the  casting  anew  of  the  electoral  votes,  and 
the  due  formal  transmission  thereof  to  the  seat  of  Government,  in  perfect  conformity 
with  the  Constitution  and  laws,  (except  that  they  were  subsequent  in  point  of  timo 
to  December  6,  1870,)  are  all  matters  of  record  and  are  already  regularly  before  the 
Commission. 

Fifthly.  The  only  matters  which  the  Tilden  electors  desire  to  lay  before  the  Com 
mission  by  evidence  actually  extrinsic,  will  now  be  stated : 

1.  The  board  of  State  canvassers,  acting  on  certain  erroneous  views  when  making 


ELECTORAL  COMMISSION. 


223 


their  canvass,  by  which  the  Hayes  electors  appeared  to  he  chosen,  rejected  wholly 
the  returns  from  the  county  Manatee  and  part  of  returns  from  each  of  the  follow 
ing  counties,  to  wit:  Hamilton,  Jackson,  and  Monroe. 

In  so  doing  the  said  State  board  acted  without  jurisdiction,  as  the  circuit  and 
supremo  courts  iu  Florida  decided.  It  was  by  overruling  and  setting  aside  as  not 
warranted  by  law  these  rejections  that  the  courts  of  Florida  readied  their  respect 
ive  conclusions  that  Mr.  Drew  was  elected  governor,  that  the  Hayes  electors  were 
usurpers,  and  that  the  Tilden  electors  were  duly  chosen. 

No  evidence  that  in  any  view  could  be  called  extrinsic  is  believed  to  be  needful 
in  order  to  establish  the  conclusions  relied  upon  by  the  Tilden  electors,  except  duly 
authenticated  copies  of  the  State  canvass,  and  of  the  returns  from  the  above-named 
four  counties,  one  wholly,  and  the  others  in  part  rejected  by  said  State  canvassers. 

2.  Evidence  that  Mr.  Humphreys,  a  Hayes  elector,  held  office  under  the  United 
States. 

Sixthly.  Judging  from  the  objections  taken  by  those  supporting  the  Hayes  elect 
ors,  and  the  opening  and  arguments  here  offered  in  their  behalf  believed  that  no 
evidence  is  needed  or  intended  to  be  offered  by  the  supporters  of  the.Hayes  electors 
nnless  it  be — 

1.  That  the  above-mertioned  appeal  was  taken. 

2.  That  Mr.  Humphreys,  one  of  the  Hayes  electors,  had  resigned  his  office  under 
the  United  States  before  his  appointment  as  an  elector. 

This  is  the  proof  they  offer  to  us.  They  say  they  can  make  good 
this  offer  by  the  production  of  evidence,  and  they  propose  to  satisfy 
the  minds  of  this  tribunal,  if  allowed,  that  the  State  of  Florida,  on 
the  7th  day  of  November,  1876,  appointed  Tilden  electors,  and  that 
they,  and  they  alone,  are  "  the  duly  appointed  electors  of  the  State." 

One  would  suppose,  when  the  past  action  of  Congress  on  this  sub 
ject  arid  the  provisions  of  the  electoral  bill  are  considered,  that  there 
would  be  no  voice  raised  here  against  hearing  this  evidence ;  but  it 
was  maintained  by  counsel,  and  is  insisted  on  here,  that  the  Hayes 
electors,  having  the  governor's  certificate,  based  on  certificate  of  re 
turning  board,  we  cannot  go  behind  these  certificates  to  inquire 
whether  they  contain  the  truth  or  are  false  and  fraudulent. 

It  must  be  conceded  that  there  may  be  cases  which  will  force  an 
examination  into  the  truth  of  these  certificates. 

Suppose  it  were  alleged  that  these  certificates  are  forged,  it  will 
hardly  be  maintained  that  they  would  present  a  conclusive  case. 
Can  a  forged  certificate  be  less  powerful  than  a  fraudulent  one? 
Would  any  one  desire  to  uphold  a  fraud  any  more  than  a  forgery  ? 

By  the  laws  of  Congress  it  is  provided  : 

SEC.  136.  It  shall  be  the  duty  of  the  executive  of  each  State  to  cause  three  lists 
of  the  names  of  the  electors  of  such  State  to  be  made  and  certified,  and  to  be  de 
livered  to  the  electors  on  or  before  the  day  on  which  they  are  required,  by  the  pre 
ceding  section,  to  meet.  (1  Mar.,  1792,  c.  8,  s.  3,  v.  1,  p.  240.) 

The  laws  of  Florida  also  provide  for  certificates  from  returning 
board  and  from  the  governor  to  the  electors.  I  deny  that  under  the 
precedents  (already  cited)  of  the  action  of  the  two  Houses  and  tinder 
the  authorities  that  these  certificates  are  conclusive.  I  maintain  that 
they  furnish  evidence  of  the  action  of  the  State  iu  the  appointment 
of  electors  not  conclusive  but  prima  facie,  and  that  we  have  the  right 
to  go  behind  them  to  ascertain  whether  they  speak  the  truth  or  are 
fraudulent  and  false. 

Chief-Justice  Whiton,  in  4  Wisconsin,  792,  commenting  on  the  effect 
of  certificates  of  canvassers,  says : 

Before  proceeding  to  state  our  views  in  regard  to  the  law  regulating  the  canvass 
of  votes  by  the  State  canvassers,  we  propose  to  consider  how  far  the  right  of  a  per 
son  to  an  office  is  affected  by  the  determination  of  the  canvassers  of  the  votes  cast  at 
the  election  held  to  choose  the  officer.  Under  our  constitution,  almost  all  our  officers 
are  elected  by  the  people.  Thus  the  governor  is  chosen,  the  constitution  provid 
ing  that  the  person  having  the  highest  number  of  votes  for  that  office  shall  be 
elected.  But  the  constitution  is  silent  as  to  the  mode  in  which  the  election  shall  be 
conducted,  and  the  votes  cast  for  governor  shall  be  canvassed  and  the  result  of  the 
eloctiou  ascertained.  The  duty  of  prescribing  the  mode  of  conducting  the  election 
and  of  canvassing  the  votes  was,  therefore,  devolved  upon  the  Legislature.  They 
have  accordingly  made  provision  for  both,  and  the  question  is,  whether  the  canvass, 
or  the  election,  establishes  theright  of  a  person  to  an  office.  It  seems  clear  that  it  can 
not  be  the  former,  because  by  our  constitution  and  laws  it  is  expressly  provided 
that  the  election  by  the  qualified  voters  shall  determine  the  question.  To  hold  that  the 
canvass  shall  control  ivould  subvert  the  foundations  upon  which  our  governmentrests. 
But  it  has  been  repeatedly  contended  in  the  course  of  this  proceeding  that  although 
the  election  by  the  electors  determines  the  right  to  the  office,  yet  the  decision  of 
the  persons  appointed  to  canvass  the  votes  cast  at  the  election 'settles  finally  and 
completely  the  question  as  to  the  persons  elected,  and  that,  therefore,  no  court  can 
have  jurisdiction  to  inquire  into  the  matter.  It  will  be  seen  that  this  view  of  the 
question,  while  it  recognizes  the  principle  that  the  election  is  the  foundation  of  the 
right  to  the  office,  assumes  that  the  canvassers  have  authority  to  decide  the  matter 
finally  and  conclusively.  We  do  not  deem  it  necessary  to  say  anything  on  the  pres 
ent  occasion  upon  the  subject  of  the  jurisdiction  of  this  court,  as  that  question  has 
already  been  decided  and  the  reasons  for  the  decision  given.  Bearing  it  in  mind, 
then,  that  under  our  constitution  and  laws  it  is  the  election  to  an  office,  and  not 
the  canvass  of  the  votes,  which  determines  the  right  to  the  office,  we  will  proceed 
to  inquire  into  the  proceedings  of  the  State  canvassers  by  which  they  determined 
that  the  respondent  was  duly  elected. 

The  title  to  an  elective  office  is  derived  from  the  people  through  the  ballot-box. 
Somebody  must  declare  the  will  of  the  electors  as  thus  expressed.  Canvassers  are 
provided  for  that  purpose.  The  certificate  of  a  board  of  canvassers  is  evidence  of 
the  person  upon  whom  the  office  has  been  conferred.  Upon  all  questions  arising 
collaterally,  or  between  a  party  holding  the  certificate  ana  a  stranger,  it  is  conclu 
sive  evidence  ;  but,  in  a  proceeding  to  try  the  right  to  the  office,  it  is  only  prima 
fade  evidence.  In  such  a  proceeding,  now  regarded  as  a  civil  action,  it  is  compe 
tent  for  the  court  to  go  behind  the  adjudication  of  the  canvassers.  The  whole 
question  is  thrown  open  and  extrinsic  evidence  is  allowed  to  show  which  was  the 
true  state  of  the  votes.  In  such  an  action,  where  the  right  to  the  office  is  the  very 
thing  in  issue,  the  court  will  allow  nothing  to  stand  in  the  way  between  it  and  the 
ballot-box.  It  will  put  in  requisition  all  the  means  within  its  reach  to  ascertain  the 
expressed  will  of  the  electors,  and  will  conform  its  judgment  to  such  ascertained 
will.  (Morgan  vs.  Quackenbush,  22  Barb.,  72.) 

In  deciding  the  question  as  to  which  candidate  has  received  the  greater  number 
of  votes  cast  by  the  electors  for  a  particular  office,  the  court  and  jury  will  go  be 
hind  the  canvasa  to  ascertain  the  intention  of  the  voters,  and,  when  ascertained, 
will  give  effect  to  that  intention  by  giving  to  each  candidate  the  votes  the  voters 
gave  him.  (People  vs.  Ferguson,  8'Cow.,  102 ;  People  »s.  Cook,  8  N.  Y.,  67,  83  ;  Peo 
ple  vs.  Pease,  27  N.  Y.,  45  ;  People  vs.  Love,  03  Barb.,  535 ;  People  vs.  Wilson,  62  N. 
Y.,  186;  People  vs.  Vail,  20  Wend.,  12.) 


These  authorities  and  many  more  that  might  be  cited  prove  that  the 
certificates  are  not  the  election.  They  only  form  evidence  in  one 
form  of  the  result  of  it. 

It  is  further  submitted  that  no  law  that  could  be  enacted  in  Florida 
could  make  these  certificates  conclusive  and  absolutely  binding  on 
the  two  Houses  or  this  Commission  in  the  electoral  count.  That  State 
could  by  law  make  a  certificate  binding  and  conclusive  between  her 
own  citizens,  but  cannot  give  it  this  effect  out  of  the  State  between 
persons  not  her  citizens. 

It  has  been  declared  that  to  go  behind  these  certificates  and  to  find 
contrary  to  them  would  be  a  violation  of  State  rights.  I  am  an  ad 
vocate  for  State  rights,  of  the  straightest  sect.  I  did  not,  I  do  not 
expect  to  learn  a  lesson  in  that  direction  from  those  who  have  pro 
claimed  it  in  this  case.  Indeed  it  is  feared  that  it  is  used  here  to 
cover  up  a  great  wrong  to  a  State.  But  in  this  case  these  new-made 
converts  to  the  doctrine  need  have  no  apprehension  because  the  State 
of  Florida,  through  the  executive,  legislative,  and  judicial  depart 
ment  of  her  State  government,  has  labored  to  convince  us  and  the 
country  that  the  Hayes  electors  are  not  the  duly  appointed  electors 
of  that  State.  She  has  done  what  she  could  to  correct  this  great 
wrong,  and  she  relies  on  us  to  do  the  balance. 

When  the  Hayes  electors  met  and  before  their  vote  was  cast  the 
Tilden  electors  commenced  a  quo  warranto  proceeding  against  them, 
which  it  is  offered  to  prove  was  served  before  the  vote  was  cast.  On 
the  25th  of  January,  1877,  judgment  was  rendered  in  this  case,  declar 
ing  the  Hayes  electors  were  usurpers  and  that  the  Tilden  electors  were 
duly  appointed.  From  this  judgment  there  was  an  appeal,  but  it  has 
never  been  reversed.  The  vote  for  the  Tilden  electors  was  about  the 
same  as  the  vote  for  Drew,  the  democratic  candidate  for  governor.  If 
one  was  duly  elected  the  other  was.  This  same  returning  board  that 
gave  certificates  to  the  Hayes  electors  also  gave  certificate  to  Stearns, 
the  opponent  of  Drew. 

On  a  mandamus  prosecuted  by  Drew  against  Stearns  in  the  highest 
court  of  Florida,  Mr.  Stearns  was  ousted  and  Mr.  Drew  installed  as 
governor. 

The  effect  of  these  two  decisions  is  to  declare  by  the  courts  of  Florida 
what  the  laws  of  Florida  are,  and  when  so  declared  these  decisions 
bind  all  other  courts  as  fully  as  if  the  decisions  had  been  incorporated 
into  the;  law. 

But  it  is  said  that  the  electors  became/wnciws  offlcio  before  judgment 
in  quo  warranto.  Although  the  electors  had  voted  before  judgment  in 
quo  warranto,  yet  that  judgment  was  rendered  in  time  to  instruct  us  on 
the  point  which  we  are  to  decide  and  determine,  to  wit :  which  set 
of  electors  has  been  duly  appointed. 

The  court  had  jurisdiction  to  proceed  to  judgment  after  December 
6,  according  to  the  current  of  authorities  both  in  England  and  this 
country.  When  the  office  shall  expire  before  judgment,  the  court 
may  in  its  discretion  refuse  the  writ ;  but  when  once  granted  it  must 
go  on  to  judgment. 

In  The  People  vs.  Sweeting,  2  Johns.,  184,  the  supremo  court  of 
New  York,  in  denying  a  similar  application,  said  : 

This  court  has  a  discretion  to  grant  motions  of  this  kind  or  to  refuse  them,  if  no 
sufficient  reasons  appear  for  allowing  this  mode  of  proceeding. 

That  this  was  the  sole  effect  of  this  decision  appears  from  the  sub 
sequent  case  of  The  People  vs.  Tibbetts,  4  Cow.,  358,  381,  bottom. 
Here  the  same  court  granted  such  a  motion  for  leave  to  file  an  infor 
mation,  notwithstanding  the  former  case,  which  was  cited  and  con 
sidered.  They  say  : 

Here  the  motion  was  brought  before  us  at  the  term  next  after  the  election.  We 
cannot  refuse  i  t,  upon  the  mere  chance  that  a  trial  may  fail.  To  do  this  would  be  equiv 
alent  to  a  refusal  in  all  cases  where  the  office  is  annual ;  a.  length  to  which  wo  pro- 
sumo  the  court  did  not  intend  to  go,  and  to  which  it  was  not  necessary  they  should 
go,  in  The  People  vs.  Sweeting.  On  the  whole,  we  are  clear  upon  the  nature  of  the 
case  as  to  our  right  of  allowing  the  information  to  be  filed ;  and  that  the  lapse  of  time 
is  not  such  as  to  require  us  in  the  exercise  of  a  sound  discretion  to  deny  it. 

Says  Chief-Justice  Ames,  in  delivering  the  opinion  of  the  supremo 
court  of  Rhode  Island,  State  vs.  Brown,  5  Rhode  Island,  1 : 

When  the  information  is  filed  all  the  discretionary  power  of  the  court  is  expended, 
and  the  issues  of  law  or  fact  raised  by  the  pleadings  must  bo  tried  and  decided 
under  the  law  and  iu  the  same  manner  and  with  the  same  strictness  as  in  any  other 
case,  civil  or  criminal.  (P.  4.) 

According  to  these  decisions  the  court  in  Florida  had  jurisdiction 
to  issue  and  try  this  quo  warranto,  and  the  judgment  that  the  Tilden 
electors  were  the  duly  appointed  electors  of  Florida  until  reversed 
binds  all  courts  in  the  United  States. 

This  judgment  and  that  in  mandamus  settle  the  question  that  ac 
cording  to  the  laws  of  Florida  the  canvassing  board  committed  an 
error  (to  use  no  stronger  term)  in  granting  certificates  to  the  Hayes 
electors  and  that  their  certificate  and  that  of  the  governor  founded 
on  it  gave  the  said  Hayes  electors  no  valid  title  to  their  office,  and  that 
the  Tilden  electors  were  duly  appointed. 

But  the  State  of  Florida  did  not  stop  here.  Upon  the  decision  of 
the  mandamus  Governor  Drew  was  installed  into  office  with  his  demo 
cratic  associates  on  the  State  ticket,  and  also  a  democratic  Legisla 
ture.  The  old  returning  board,  consisting  of  secretary  of  state,  at 
torney-general,  and  comptroller  of  public  accounts,  died,  and  the  new 
board  under  mandamus  came  into  office. 

Under  a  law  of  the  new  Legislature  passed  in  January,  1877,  a  new 
canvass  was  held  and  the  Tilden  electors  declared  elected  ;  this  was 
followed  by  the  certificate  of  the  governor.  About  the  same  time 
another  act  was  passed  declaring  tho  Tilden  electors  were  the  duly 


224 


ELECTORAL  COMMISSION. 


appointed  electors  of  that  State.  Thus  the  State  of  Florida  has, 
through  all  of  its  three  several  departments,  declared  that  according 
to  her  laws  the  Tilden  electors  were  duly  chosen.  In  the  face  of  all 
this  accumulated  evidence  of  the  truth  shall  we  shut  our  eyes  and 
say  we  will  hear  nothing  on  the  subject  f  We  are  acting  under  a  law 
•which  requires  us  to  decide  "  what  persons  were  duly  appointed  elect 
ors"  in  Florida,  and  yet  we  are  urged  to  decide  this  grave  question  in 
favor  of  one  set  of  electors  on  the  governor's  certificate  and  that  of  the 
returning  board  when  before  our  eyes  stands  evidence  which  must  be 
satisfying  to  all  that  the  other  set  is  duly  elected.  They  also  offer  to 
produce  for  our  consideration  the  actual  vote  of  the  State  that  we 
may  revise  the  canvass  for  ourselves  and  decide  according  to  the  laws 
of  Florida  and  the  veiy  right  of  the  case.  If  this  offer  of  proof  be  re 
jected,  let  it  not  be  on  the  affectation  of  regard  for  the  rights  of  the 
State  of  Florida.  She  is  suffering  under  a  grievous  State  wrong,  and 
through  all  her  departments  has  tried  to  correct  it,  and  is  now  stretch 
ing  out  her  hands  to  us  for  relief.  I  cannot  believe  this  Commission 
will  refuse  to  hear  this  testinlony,  and  (if  it  comes  up  to  the  offer  of 
proof)  to  correct  this  foul  wrong. 

But  it  has  been  maintained  that  though  the  Hayes  electors  may  not 
have  been  duly  appointed  and  though  the  Tilden  electors  may  have 
1  KMMI  duly  appointed  on  the  7th  of  November,  yet  as  the  Hayes  electors 
had  some  color  of  authority  under  the  governor's  certificate,  they  be 
came  electors  de  facto,  and  their  action  in  casting  the  vote  of  the  State 
for  Hayes  was  binding  on  all  persons.  What  a  monstrous  doctrine ! 
It  must  shock  the  moral  sense  of  every  member  of  this  Commission. 

It  will  be  recollected  that  both  sets  of  electors,  both  claiming  to  be 
the  duly  appointed  electors  of  Florida,  met  according  to  law  at  the 
same  time  and  with  the  same  forms  cast  their  votes — the  one  for 
Hayes,  the  other  for  Tilden.  We  are  told  we  cannot  inquire  which 
was  the  true  set  of  electors,  because  one  set  had  the  governor's  cer 
tificate,  and  because  they  were  the  de  facto  electors.  This  seems  an 
entirely  new  application  of  the  doctrine,  and  common  sense  will  an 
swer  and  repudiate.  Where  two  persons  both  claiming  to  hold  an 
office  attempt  to  discharge  the  duties  of  the  office  at  the  same  time, 
there  can  be  no  claim  on  the  part  of  either  that  he  is  a  de  facto  officer. 
One  or  the  other  is  de  jure,  and  hia  acts  must  be  respected  and  those 
of  the  other  repudiated. 

The  doctrine  of  the  authorities  on  this  subject  seems  to  be  this : 
If  the  act  of  the  de  facto  officer  has  not  operated  to  accomplish  some 
change  in  the  relation  of  parties  to  each  other  or  to  property  or  to  the 
public,  such  acts  will  not  be  regarded,  especially  if  a  like  act  was  per 
formed  by  the  officer  de  jure  at  the  same  time.  (Wilcox  vs.  Smith,  5 
Wend.,  231.  Hildrethi's.  Mclntire,  1  J.  J.  Marshall,  206.  Green  vs. 
Burke,  23  Wend.,  490.) 

It  cannot  be  that  the  fact  that  the  Hayes  electors  acted  can  give  va 
lidity  to  their  acts  when  there  could  be  no  inquiry  here  unless  they  had 
acted  and  the  very  question  to  decide  is  which  of  the  two  parties  act 
ing  had  the  right  to  act,  and  before  the  act  of  either  was  accomplished 
by  the  count  here  this  action  on  the  part  of  the  Hayes  electors  was 
declared  void  by  the  court  of  Florida. 

But  the  proof  is  also  offered  that  one  of  the  Hayes  electors,  Mr. 
Humphreys,  held  an  office  of  trust  and  profit  under  the  United  States 
Government  at  the  time  of  his  appointment. 

Surely  wo  caunot  refuse  to  hear  this  proof. 

The  Constitution  says  in  article  2,  section  1 : 

The  executive  poorer  shall  he  vested  in  a  President  of  the  United  States  of 
America.  He  shall  hold  his  office  during  the  term  of  four  years,  and  together  with 
tho  Vice-President,  chosen  for  the  same  term,  be  elected  as  follows  : 

Each  State  shall  appoint,  in  such  manner  as  the  Legislature  thereof  may  direct, 
a  number  of  electors,  equal  to  the  whole  number  of  Senators  and  Representatives 
to  which  the  State  may  be  entitled  in  the  Congress :  but  no  Senator  or  Representa 
tive,  or  person  holding  an  office  of  trust  or  profit  under  the  United  States,  shall  be 
appointed  an  elector. 

The  right  and  power  to  appoint  electors  is  not  an  original  State 
right,  not  one  of  thoee  rights  reserved  to  the  State  in  the  formation 
of  the  Constitution.  Without  the  Constitution  and  Union  it  formed 
there  would  have  been  no  such  thing  as  presidential  electors.  It  was 
a  power  and  a  right  secured  by  the  compact  to  each  State  and  owed 
its  existence  to  the  compact.  This  power,  then,  must  be  exercised  in 
conformity  to  the  compact.  If  there  is  a  limitation  on  this  right  or 
an  inhibition  on  its  exercise,  this  limitation  or  inhibition  must  be  re 
spected  or  the  exercise  of  the  right  is  void.  This  power  to  appoint 
electors  in  the  Constitution  is  subject  to  the  limitation  on  that  power 
in  these  words:  "  But  no  Senator  or  Representative,  or  person  hold 
ing  an  office  of  trust  or  profit  under  the  United  States,  shall  be  ap 
pointed  an  elector."  This  is  an  express  limitation  on  the  right  to  ap 
point  electors,  and  if  the  State  does  appoint  any  of  the  prohibited 
class,  it  is  void.  She  has  under  the  Constitution  no  more  right  to 
appoint  such  than  she  would  have  to  appoint  any  if  this  section  of 
the  Constitution  had  not  been  adopted. 

Tho  States  can  now  fail  or  refuse  to  appoint  electors.  If  so,  then 
they  decline  to  take  part  in  electing  a  President.  If  they  appoint 
three  eligible  electors  and  one  who  is  ineligible,  then  she  can  only  give 
three  votes  for  President  instead  of  four. 

It  is  plain  that  the  object  of  this  prohibition  or  limitation  of  the 
power  of  appointment  was  wise.  It  was  to  prevent  the  interference 
of  Federal  officers  in  the  presidential  election — to  make  the  electoral 
colleges  independent  of  the  existing  President  and  prevent  him  from 
re-electing  himself  or  naming  his  successor. 


It  has  always  been  considered  a  wise  and  salutary  provision  which 
should  be  rigidly  adhered  to. 

In  the  presidential  count  of  1837  it  was  suggested  that  several 
postmasters  had  been  appointed  electors.  A  committee  was  raised 
to  ascertain  and  report  on  this  matter.  Felix  Grundy,  Henry  Clay, 
and  Silas  Wright  were  members  of  this  committee  on  part  of  the  Sen 
ate,  and  the  following  is  an  extract  from  their  report,  submitted  by 
Mr.  Grundy : 

The  committee  are  of  opinion  that  the  second  section  of  the  second  article  of  tho 
Constitution,  which  declares  that  "no  Senator  or  Representative,  or  person  hold 
ing  an  office  of  trust  or  profit  under  the  United  States,  shall  be  appointed  an 
elector,"  ought  to  be  carried,  in  itg  whole  spirit,  into  rigid  execution,  in  order  to  pre 
vent  officers  of  the  General  Government  from  bringing  their  official  power  to  influence 
the  elections  of  President  and  Vice-President  of  the  United  States.  This  provisimi  of 
the  Constitution,  it  is  believed,  excludes  and  disqualifies  deputy  postmasters  from  the. 
appointilMnt  of  electors  ;  and  the  disqualification  relates  to  the  time  of  the  o,ppoint- 
ments,  and  that  a  resigration  of  the  office  of  deputy  postmaster,  after  his  appointment 
as  elector,  would  not  entitle  him  to  vote  as  elector  under  the  Constitution. 

In  the  debate  ensuing  in  the  House  of  Representatives  upon  the 
report  of  the  joint  committee,  Mr.  Francis  Thomas,  chairman  of  the 
House  committee,  said  that  "  the  committee  came  unanimously  to  tho 
conclusion  that  they  (the  postmasters  in  question)  were  not  eligible 
at  tho  time  they  were  elected,  and  therefore  tho  whole  proceeding 
was  vitiated  ab  initio." 

These  great  men,  considering  it  most  important  that  this  provision 
should  be  strictly  adhered  to,  gave  strong  and  convincing  reasons  for 
it,  and  declared  that  the  appointment  of  such  was  a  void  act;  that 
the  disqualification  relates  to  the  time  of  appointment,  and  that  sub 
sequent  resignation  of  Federal  office  before  voting  in  electoral  col 
lege  did  not  entitle  one  to  vote  as  elector.  Unfortunately  the  vote 
of  those  ineligible  electors  did  not  affect  the  presidential  count  of 
1837,  and  no  legislation  followed ;  but  the  principle  then  declared 
is  as  true  to-day  as  it  was  when  declared.  Ever  since  the  Wilkes 
case  in  the  British  Parliament  it  has  been  held  in  a  long  and  an  al 
most  harmonious  current  of  decisions  both  in  this  country  and  En 
gland  that  the  election  or  appointment  of  an  ineligible  person  is  a 
void  act.  Authorities  differ  as  to  whether  the  next  highest  candi 
date  is  elected,  but  I  know  of  no  case  in  which  the  ineligible  candi 
date  was  held  to  be  elected. 

I  beg  leave  to  refer  to  some  of  the  leading  cases  in  which  this  doc 
trine  was  held. 

The  doctrine  was  held  in  the  case  of  Searcy  vs.  Grow,  15  Cal.,  118, 
where  the  opinion  was  pronounced  by  Baldwin,  J.,  Cope,  J.,  and  Field, 
C.  J.,  concurring.  It  was  a  contest  for  the  office  of  sheriff  of  Siski- 
you  County.  Grow  had  been  returned  as  elected  to  the  office.  At  tho 
time  of  the  election  he  was  postmaster  in  the  town  of  Yreka,  the  com 
pensation  of  which  exceeded  $500  per  annum.  The  court  below  found 
for  Searcy,  rnd  Grow  appealed.  The  constitution  of  California  pro 
vides  that  "  no  person  holding  any  lucrative  office  under  the  United 
States  or  in  their  power  shall  be  eligible  to  any  civil  office  of  profit 
under  this  State,  provided  that  offices  in  the  militia  to  which  there 
is  attached  no  annual  salary,  or  local  officers  and  postmasters  whose 
compensation  does  not  exceed  $500  per  annum,  shall  not  be  deemed 
lucrative."  Grow  was  postmaster  at  the  time  of  the  election,  but  had 
resigned  at  the  time  of  his  qualification.  The  Supreme  Court  unani  - 
mously  confirmed  the  judgment  of  the  court  below. 

In  the  opinion  Justice  Baldwin  says,  (page  121 :) 

The  people  in  this  case  were  clothed  with  this  power  of  choice.  Their  selection 
of  a  candidate  gave  him  all  the  claim  to  the  office  which  he  has.  His  title  to  tho 
office  comes  from  their  designation  of  him  as  sheriff.  But  they  conld  not  designate 
or  choose  a  man  not  eligible — that  is,  not  capable  of  being  selected.  They  might 
select  any  man  they  chose,  subject  only  to  this  exception  :  that  tho  man  they  so. 
lected  was  capable  of  taking  what  they  had  tho  power  to  give.  "Wo  do  not  see  how 
the  fact  that  he  became  capable  of  taking  office  after  they  had  exercised  their  power 
can  avail  the  appellant.  If  he  was  not  eligible  at  the  time  the  votes  were  cast  for 
him,  tho  election  failed.  We  do  not  see  how  it  can  be  assumed  that  by  the  act  of 
the  candidate  the  votes  which,  when  cast,  were  ineffectual  because  not  given  for  a 
qualified  candidate,  became  effectual  to  elect  him  to  office  (Price  vs.  Baker,  41  Ind., 
572 ;  Stewart  vs.  Hayes,  3  Chicago  Legal  News,  117 ;  State  vs.  Giles,  1  Chand.,  Win., 
112;  Stater*.  Boal,  46  Mo.,  426  ;  Saunders  vs.  Haynes,  13  Cal.,  145.) 

The  electors  must  be  all  appointed  on  the  same  day  under  the  act 
of  Congress,  Revised  Statutes — 

SEC.  131.  Except  in  case  of  a  Presidential  election,  prior  to  the  ordinary  period, 
as  specified  in  sections  147  to  149  inclusive,  when  the  offices  of  President  and  Vice- 
President  both  become  vacant,  the  electors  of  President  and  Vico-President  shall 
be  appointed  in  each  State  on  the  Tuesday  next  after  the  first  Monday  in  Novciu 
ber  in  every  fourth  year  succeeding  every  election  of  a  President  and  Vice-Presi 
dent. 

The  appointment  must  be  complete  on  that  day.  The  canvass  and 
certificate  made  after  are  only  evidence  of  appointment,  and  cannot 
be  said  in  any  sense  to  be  an  appointment.  These  questions  were 
well  considered  in  a  case  in  Rhode  Island  growing  out  of  the  appoint 
ment  on  7th  of  November,  1876,  of  George  H.  Corliss,  an  elector. 
Corliss  was  at  the  date  of  the  election  (the  day  of  his  appointment) 
a  Centennial  commissiorer.  The  question  of  his  eligibility  was  sub 
mitted  by  the  governor  to  the  supreme  court. 

The  following  is  a  history  of  the  action  of  the  court :  In  the  matter 
of  George  H.  Corliss,  (16  American  Law  Register,  N.  S.  15,  number 
for  January,  1877,)  Corliss  was  a  Centennial  commissioner  on  Novem 
ber  7,  1876,  when  the  qualified  voters  of  Rhode  Island  cast  a  majority 
of  their  votes  for  him  for  the  office  of  presidential  elector.  The  gov 
ernor,  nnder  the  laws  of  Rhode  Island,  submitted  to  tho  supreme 
court  five  questions,  the  answers  to  which  were  to  guide"  his  action  in 
making  tho  required  executive  lists  of  electors  appointed.  Of  these 


ELECTORAL  COMMISSION. 


225 


the  third,  upon  the  assumption  that  the  court  should  answer  that  the 
office  was  one  of  trust  and  prolit  under  the  Constitution  of  the  United 
States,  was:  "lathe  disqualification  removed  by  the  resignation  of 
said  office  of  trust  and  protit  ?"  There  was  a  dissenting  opinion  of 
one  judge  out  of  five  in  answer  to  the  first  question,  but  all  agreed  in 
answering  the  third  question  as  follows  : 

"Wo  think  the  disqualification  is  not  removed  by  the  resignation  of  the  office  of 
trust  unless  the  otlice  is  resigned  before  tho  election.  Tho  language  of  the  Con 
stitution  is  that  ''no  person  holding  an  office  of  trust  or  profit  under  tho  United 
States  shall  bo  appointed  an  elector."  Under  our  law,  (General  Statutes,  chapter 
11,  sections  1  and  2,)  tho  election  by  the  people  constitutes  tho  appointment.  Tho 
duty  of  the  governor  is  to  examine  and  count  tho  votes,  and  give  notice  to  the 
elector.  He  merely  ascertains — ho  does  not  complete — the  appointment.  A  resig 
nation,  therefore,  after  the  election  is  too  late  to  be  effectual. 

Upon  reason  and  authority  both.  Humphreys,  if  a  Federal  officer 
on  the  day  of  election,  could  not  act  as  elector,  even  though  he  re 
signed  his  Federal  office  before  theo'th  December,  when  he  attempted 
to  vote. 

Shall  we  then  refuse  to  hear  evidence  to  show  that  he  held  Fed 
eral  office  on  7th  November,  1876  ? 

Au  attempt  is  made  to  liken  this  provision  of  the  Constitution  to 
the  third  clause  of  third  section  of  article  1 : 

No  person  shall  be  a  Senator,  who  shall  not  have  attained  to  the  age  of  thirty 
years,  and  been  nine  .years  a  citizen  of  the  United  States,  and  who  shall  not,  when 
elected,  be  an  inhabitant  of  that  State  for  which  he  shall  be  chosen. 

This  provision  it  is  claimed  has  never  prevented  a  person  from  being 
Senator  who  is  at  the  time  he  is  sworn  in  thirty  years  of  age  and 
who  has  then  been  nine  years  a  citizen  of  the  United  States. 

But  how  different  is  the  language  of  these  two  provisions.  In  tho 
former  the  language  is  "  no  person  shall  be  appointed."  In  the  latter 
"  no  person  shall  be  a  Senator."  He  is  not  a  Senator  until  he  is  sworn 
in,  aud  then  the  qualifications  apply.  Ho  cannot  bo  called  a  Senator 
until  he  assumes  the  duties  of  that  high  position.  He  is  only  Senator- 
elect  and  may  never  become  a  Senator.  There  is  much  more  similar 
ity  in  the  last  prohibition  as  to  Senator,  to  wit,  "  and  who  shall  not 
when  elected  be  an  inhabitant  of  the  State  for  which  he  shall  be 
chosen."  No  case  can  be  found  where  this  iueligibility  of  non-resi 
dence  at  date  of  election  has  been  removed  by  afterward  becoming 
an  inhabitant.  He  must  at  date  of  election  be  an  inhabitant  or  ho  is 
forever  disqualified.  Nothing  occurring  subsequent  can  remove  this 
ineligibility.  So  with  elector  he  must  not  when  appointed  be  a  Federal 
officer.  If  he  is  no  resignation  can  make  him  eligible. 

Suppose  the  State  of  Florida  had  attempted  to  appoint  her  two 
Senators  and  two  Representatives  her  four  electors,  and  they  had 
met,  formed  an  electoral  college,  and  cast  their  votes  for  President  and 
Vice-President,  will  anyone  maintain  that  such  votes  could  be  counted 
or  that  we  could  not  go  behind  tho  certificates  to  ascertain  if  these 
four  men  were  her  Senators  aud  Representatives  f  Could  we  who  have , 
sworn  to  support  the  Constitution,  and  have  also  sworn  to  decide 
what  are  the  votes  of  the  State  of  Florida,  provided  for  by  the  Consti 
tution  of  the  United  States,  decide  that  these  Senators  aud  Representa 
tives  bad  cast  the  votes  provided  for  by  the  Constitution,  which  in 
terms  prohibits  them  from  being  electors  ? 

The  statement  of  the  case  is  the  answer  to  the  proposition. 

Mr.  President,  when  I  consider  the  past  action  of  the  two  Houses 
of  Congress,  the  phraseology  of  the  law  under  which  we  are  acting, 
tho  offers  of  proof,  and  the  authorities  which  I  have  examined,  I  have 
no  doubt  left  on  my  mind  that  it  is  not  only  our  right  but  our  duty 
to  hear  the  proof  offered  and  to  decide  which  certificate  contains  the 
true  and  lawful  electoral  vote  of  Florida.  Any  other  course  would 
disappoint  the  expectations  of  the  country,  looking  tons  to  solve  this 
vexed  presidential  election  according  to  the  very  right  of  the  case.  Any 
other  course  dwarfs  this  high  Commission  into  a  tribunal  to  ascertain 
merely  whether  the  four  votes  of  Florida  have  been  correctly  added 
up  or  not  and  whether  the  governor's  certificate  accompanies  the 
votes.  This  duty  might  as  well  have  been  performed  by  a  page  of 
either  House.  The  business  of  the  two  Houses  would  not  then  have 
been  interrupted  by  withdrawing  five  members  from  each  House,  and 
waiting  for  days  for  us  to  arrive  at  tne  most  difficult  decision  that 
Florida  had  really  cast  four  votes  and  that  the  electors  who  cast  tho 
four  votes  had  tho  governor's  certificate.  The  business  of  the  Supreme 
Court  would  not  then  have  been  entirely  suspended  by  the  with 
drawal  of  five  of  its  associate  justices,  to  form  this  Commission,  aud 
play  the  role  of  boys  in  primary  arithmetic.  No,  sir,  this  Electoral 
Commission  was  designed  (as  tho  law  creating  it  directs)  to  "decide 
whether  any  and  what  votes  from  such  State  are  the  votes  provided 
by  the  Constitution  of  tho  United  States,  and  how  many  and  what 
persons  were  duly  appointed  electors  in 'such  State."  To  do  this  and 
to  discharge  our  duties  under  the  bill  and  satisfy  our  consciences 
under  the  oaths  we  have  taken,  we  must  go  behind  these  certificates 
and  ascertain  whether  they  represent  the  persons  duly  appointed 
electors. 


LOUISIANA. 

Mr.  Commissioner  HUNTON  said  : 

Mr.  PRESIDENT:  Wo  have  reached  the  second  State  in  the  history 
of  this  Commission,  and  it  remains  to  be  seen  whether  tho  frauds, 
forgeries,  antl  perjuries  by  which  the  certificate  of  the  returning  board 


of  Louisiana  was  sustained  are  to  be  upheld  by  this  Commission ; 
whether  the  vote  of  this  State  is  to  be  counted  for  Hayes  on  the  cer 
tificate  of  the  governor  based  on  certificate  of  returning  board  when 
the  proof  is  offered  that  these  certificates  are  founded  on  fraud,  for 
gery,  and  perjury;  whether  the  vote  of  Louisiana  is  to  be  counted  for 
Hayes  when  the  proof  is  offered  that  she  voted  for  Tilden  by  from 
six  to  nine  thousand  majority. 

^  There  are  features  in  this  case  that  distinguish  it  from  that  of 
Florida,  and  I  shall  address  myself  to  these  points  in  the  hopes  that 
the  Commission  will  undertake  in  this  case  to  arrive  at  the  true  vote 
of  Louisiana  without  regard  to  the  certificates  of  governor  and  can 
vassing  board,  except  so  far  as  they  may  afford  one  character  of  evi 
dence  as  to  how  the  State  voted. 

Three  papers  purporting  to  be  certificates  of  tho  votes  of  this  State 
were  opened  and  referred  to  this  Commission.  The  two  first  are  votes 
for  Hayes  and  Wheeler  and  the  last  for  Tilden  and  Hendricks.  The 
electors  who  certified  in  the  first  two  certificates  have  the  certificate 
of  W.  P.  Kellogg,  who  certified  as  governor  of  Louisiana  that  the 
Hayes  electors  were  chosen  according  to  law.  The  electors  who  cer 
tified  in  the  third  certificate  have  the  certificate  of  John  McEnery, 
who  signs  himself  as  governor  of  Louisiana,  that  they,  the  Tilden 
electors,  were  duly  and  legally  appointed,  &c.  We  have  to  determine 
between  these  which  set  has  been  duly  appointed. 

Objections  have  been  filed  to  each  of  these  certificates,  and  on  be 
half  of  the  objectors  to  certificates  Nos.  1  and  '<5  (the  Hajes  votes)  it 
is  offered  to  prove  as  follows : 

I. 

"We  offer  to  prove  that  "William  P.  Kellogg,  who  certifies,  as  governor  of  the 
State  of  Louisiana,  to  the  appointment  of  efcctors  of  that  State,  which  certifl- 
cate  is  now  before  this  Commission,  is  tho  same  William  P.  Kellogg  who,  by  said 
certilicate,  was  certilied  to  have  been  appointed  one  of  said  electors,  lu  other 
words,  that  Kellogg  certitied  his  own  appointment  as  such  elector. 

2.  That  said  Kellogg  was  governor  defacto  of  said  State  during  all  the  mouths  of 
November  and  December,  A.  D.  1«76. 

COXSTITtlTION  OF  LOUISIANA. 

"ART.  117.  No  person  shall  hold  or  exercise  atthesame  time  more  thanoneoCice 
of  trust  or  profit,  except  that  of  justice  of  the  peace  or  notary  public." 

II. 

"We  offer  to  prove  that  said  William  P.  Kellogg  was  not  duly  appointed  one  of  the 
electors  of  said  State  in  A.  D.  187ii,  and  that  the  certificate  is  untrue  in  fact. 
To  show  this  we  offer  to  prove — 

(1)  By  certitied  copies  of  the  lists  made  ont.  signed,  and  sworn  to  by  tho  com- 
missioners  of  election  in  each  poll  and  vo  ing-place  in  the  State,  and  delivered  by 
said  commissioners  to  the  clerk  of  the  district  court  wherein  said  polls  were  estab 
lished,  except  iu  the  parish  of  Orlea  s,  and  in  that  parish  delivered  to  the  secretary 
of  state,  that  at  the  election  for  electors  in  the  State  of  Louisiana,  on  the  7th  day  of 
November  last,  tho  said  William  P.  Kellogg  received  for  elector  6.300  votes  less 
than  were  at  said  election  cast  for  each  and  every  of  the  following-named  pe  sons, 
that  is  to  say:  John  MeEuery.  K.  C.  Wickliffo,  L  St  Martin,  E.  P.  Poche,  A.  De 
Blanc,  W.  A.  Seay,  R.  G.  Cob'b.  K.  A.  Cross.    (-Sec.  43.  act  ISV2.) 

(2)  In  connection  with  the  crrtitied  copies  of  said  lists  we  offer  to.prove  that  the 
returning  board,  which  protended  to  canvass  thn  said  election  under  tho  act  ap 
proved  November  20,  1872,  did  not  receive  from  any  poll,  vol ing-place,  or  parish  in 
said  State,  nor  have  before  iliem,  any  statement  of  any  supervisorof  registration  or 
c  mmissioner  of  e  ection  in  form  as' required  by  section  2o  of  saiil  act.  on  affidavit 
of  three  or  more  citizens,  of  any  riot,  t.imult,  acts  of  violence,  intimidation  armed 
d  sturbanco,  bribery,  or  corrupt  influences  which  prevented  o  •  teiide:!  to  prevent  a 
fair,  free,  and  peaceable  vote  of  all  qualified  electors  entitled  to  vote  at  such  poll  or 
voting-place. 

(3)  Wo  further  offer  to  show  that  in  many  instances  the  supervisors  of  registra 
tion  of  tho  several  parishes  willfully  and  fraudulently  omitted  from  their  consoli 
dated  statement,  returned  by  them  to  the  State  returning  board,  tho  result  aud  all 
mention  of  the  votes  g?  ^eu  at  certain  polls  or  voting-places  within  their  respective 

Garishcs,  as  shown  to  tneui  by  tho  rein  us  and  papeis  returned  to  said  supervisors 
y  the  commissioners  of  election,  as  required  by  law  ;  and  that  in  consequence  of 
this  omission  the  said  consolidated  statements  on  their  face,  omit  ed  of  mu.joi  ities 
against  tho  said  Kellogg,  and  in  favor  of  each  and  every  the  said  McEnery,  WicLuffe, 
St.  Martin,  Poche,  De  Blanc.  Seay,  Cobb,  and  Cross,  amounting  to  2,207,  but  that  said 
supervisors  of  registration  did  as  by  law  required,  return  to  tho  said  returning 
board,  with  their  consolidated  statements,  the  lists,  papers,  and  returns  received  by 
them  according  to  law  from  the  commissioners  of  election  at  the  several  polls  and 
voting-places  omitted  as  atoresaid  from  said  consolidated  statements  of  said  super 
visors. 

And  that  the  said  returning  board  willfully  and  fraudulently  neglected  and  re 
fused  to  make  any  canvass  of  tho  majorities  so  omitted  or  estimate  them  iu  any 
way  iu  their  pretended  determination  that  the  said  Kellogg  was  duly  elected  an 
elector  at  the  election  aforesaid. 

(4)  We  offer  to  show  that  by  tho  consolidated  statements  returned  to  said  re 
turning  board  by  the  supervisors  of  registration  of  tho  several  parishes  of  the 
State  of  tho  result  of  the  voting  at  tho  several  polls  or  voting-places  within  their 

Earishes  lespeetively,  it  anpeared  that,  said  Keiloirsr  received  at  said  election  3  459 
;ss  votes  for  elector  than  the  said  McEnery,  Wiekliffe,  St.  Martin,  Poehe,  De  Blanc, 
Seay,  Cobb,  and  Cross,  and  each  and  every  of  them. 

(5)  We  further  offer  to  show  that  the  said  returning  board  willfully  and  fraudu 
lently  estimated  and  counted  as  votes  in  favor  of  said  Kellogg  234  votes  which 
were'not  shown  to  have  been  given  at  any  poll  or  voting-place  in  saia  State,  either 
by  any  consolidated  statement  returned  to-said  returning  board  by  any  of  tho  said 
supervisors,  nor  by  the  statements,  lists,  tally-sheets,  or  returns  made  by  any  com 
missioners  of  election  to  any  of  said  supervisors,  or  which  were  before  said  return 
ing  board. 

(6)  We  offer  to  prove  thit  the  votes  cast  and  given  at  said  election  on  the  7th 
November  last  for  the  electioti  of  electors,  as  shown  by  tho  return  made  by  the 
commissioners  of  election  from  tho  several  polls  or  voting  places  iu  said  State,  have 
never  been  compiled  nor  canvassed  ;  and  that  the  said  returning  board  never  even 


(7)  We  offer  to  prove  that  the  votes  given  for  electors  at  the  election  of  Novem 
ber  7  last  at  the  several  voting- places  or  polls  in  said  State  have  never  been  opened 
by  tho  governor  of  tho  said  State  in  presence  of  the  secretary  of  state,  tho  attoruey- 


15 


226 


ELECTORAL  COMMISSION. 


general,  and  a  district  judge  of  tho  district  in  which  the  seat  of  government  was 
established,  nor  in  the  presence  of  any  of  them ;  nor  has  tho  governor  of  said  State 
ever,  in  presence  as  aforesaid,  examined  tho  returns  of  the  commissioners  of  elec 
tion  for  said  election  to  ascertain  therefrom,  nor  lias  he  over,  in  such  presence,  as 
certained  therefrom,  the  persons  who  were,  or  whether  any  one  was,  duly  elected 
electors,  or  elector,  at  said  election ;  nor  has  he  ever  pretended  so  to  do.  (Revised 
Statutes,  section  2826.) 

(8)  We  further  offer  to  prove- 
That  tho  said  William  P.  Kellogg,  governor  as  aforesaid,  when  ho  made,  exe 
cuted,  and  delivered  tho  said  certificate,  by  which  he  certified  that  himself  and 
others  had  been  duly  appointed  electors  as  aforesaid,  well  knew  that  said  certifi 
cate  was  untrue  in  fact  in  that  behalf,  and  that  ho,  tho  said  Kellogg,  then  well 
knew  that  he,  tho  said  Kellogc,  had  not  received,  of  tho  legal  votes  cast  at  tho 
election  of  November  7,  187C.  for  electors,  -within  flvo  thousand  of  as  many  of  such 
votes  as  had  at  said  election  been  cast  and  given  for  eacli  and  every  of  tho  said 
McEnery,  Wickliflfe,  St.  Martin,  Poch6,  Do  Blanc,  Seay,  Cobb,  and  Cross ;  and  that 
he,  the  said  Kellogg,  when  he  made  and  executed  the  aforesaid  certificate,  well 
knew  that  of  tho  legal  votes  cast  at  the  popular  election  held  in  tho  State  of  Louisi 
ana  on  the  7th  day  of  November  last,  for  tho  election  of  electors  in  said  State,  as 
shown  by  the  lists,  returns,  and  papers  sent,  according  to  law,  by  tho  commission 
ers  of  election,  who  presided  over  and  conducted  the  said  election  at  tho  several 
polls  and  votinsc-places  in  said  State,  to  the  supervisors  of  registration,  and  as 
shown  by  the  saiu  lists,  returns,  papers,  and  ballots  deposited  by  said  commission 
ers  of  election  in  the  office  of  the  clerks  of  tho  district  courts,  except  the  parish 
of  Orleans,  and  deposited  for  tho  parish  of  Orleans  in  ihe  ollice  of  secretary  of 
elate,  according  to  law ;  that  each  and  every  the  said  McEnery,  Wickliffe,  St.  Mar- 
tin,  Poch6,  l)o  Blanc,  Seay,  Cobb.  aud  Cross  had  received  more  than  flvo  thousand 
of  the  legal  votes  cast  at  said  election  for  electors,  more  than  had  been  cast  and 
given  at  said  election  for  the  said  Kellogg  as  elector,  and  that  tho  said  McEnery, 
"XVicklitfe,  St.  Martin,  Poche.  Do  Blanc,  Seay,  Cobb,  and  Cross  had  been  thus  and 
thci  eby  duly  appointed  electors  for  said  State  in  the  manner  directed  by  the  Legis 
lature  of  said  State. 

(9)  Wo  furt  her  offer  to  prove- 
That  at  tho  city  of  New  Orleans  in  the  State  of  Louisiana,  in  the  month  of  Octo 
ber.  A.  D.  187G,  the  said  William  P.  Kellogg,  J.  H.  Burch,  Potor  Joseph,  L.  A.  Shel 
don,  Morris  Marks,  A.  B.  Levissee,  O.  II.  Brewstcr.  Oscar  Joffnon,  S.  B.  Packard, 
John  Ray,  Frank  Morey,  llngh  J.  Campbell.  D.  J.  M.  A.  Jewett.  II.  C.  Dibble, 
Michael  Hahu,  B.  P.  Blancharu,  J.  R.  G.  Pitkin.  J".  Madison  Wolls,  Thomas  C.  An 
derson,  G.  Casanavo,  L.  M.  Kenner.  George  P.  Davis,  W.  L.  Catliu,  C.  C.  Nash, 
George  L.  Smith.  Isadora  McCprmick,  and  others  entered  into  an  unlawful  and 
criminal  combination  and  conspiracy  to  and  wiih  each  other,  and  each  to  and  whh 
each  of  the  others,  to  cause  it  to  be  certified  and  returned  to  tho  secretary  of  state 
by  the  returning  board  of  said  State,  upon  their  pretended  compilation  and  canvass 
of  (he  election  for  electors,  to  be  thereafter  held  in  tho  7th  day  of  November,  A.  D. 
1876,  that  the  said  Kellogg,  Burch,  Joseph,  Sheldon,  Marks,' Levissee,  Brewster, 
aud  Joffrion  had  received  a  majority  of  all  votes  given  and  cast  at  said  election  for 
electors,  whether  such  should  bo  tho  fact  or  not ;  and 

That  afterward,  to  wit.  on  the  17th  day  of  November,  A.  D.  1876,  after  said 
election  had  been  held,  and  it  was  well  known  to  all  of  said  conspirators  that  said 
Kelloirg  and  others  had  not  been  elected  at  said  election,  but  had  been  defeated, 
and  thear  opponents  hud  been  elected  at  said  election,  the  said  returuingboard  assem 
bled  at  tho  city  of  New  Orleans,  the  seat  of  government  of  said  State,  to  pretend  to 
compile  and  canvass  tho  statement  of  votes  made  by  the  commissioners  of  election 
from  the  several  polls  and  voting-places  in  said  State  for  presidential  electors,  and 
make  returns  of  saiii  election  to  the  secretary  of  state,  as  required  by  an  act  of  tho 
Legislature  of  that  State,  approved  Novcmb'er  20,  1872;  that  when  said  returning 
board  so  assembled,  said  Wells,  said  Anderson,  said  Kenner,  and  said  Casanave, 


nave,  as  members  of  said  board,  to  fill,  then  aud  there,  by  tho  election  or  appoint 
ment  of  some  person  belonging  to  some  other  political  party  than  tho  repub  iean 
party;  but  that  the  said  Wells,  Anderson,  Keuner,  and  Casanave  then  and  there, 
in  pursuance  of  said  unlawful  aud  criminal  combination  aforesaid,  then  and  there 
neglected  aud  refused  to  iiil  said  vacancy,  for  the  reason,  as  assigned  by  them,  that 
they  did  not  wish  to  have  a  democrat  to  watch  tho  proceedings  of  said  board  ;  and 
thatalthough  frequently  during  the  session  of  said  board,  assembled  fort  ho  purpose 
aforesaid,  they,  the  said  Wells,  Audetsou,  Kenuer,  and  Casanave,  were  duly,  and 
in  writing,  requested  by  said  McEnery,  Wickliffe,  St.  Martin,  Poche,  Do  Blanc, 
Scay,  Cobb,  and  Cross  to  fill  said  vacancy,  they  refused  to  do  so,  aud  never  did  till 
the  same,  but  proceeded  as  such  board,  in  pursuance  of  said  combination  and  con 
spiracy,  to  make  a  pretended  compilation  and  canvass  of  said  election  without  fill 
ing  the  vacancy  in  said  returning  board ;  and 

That  said  Wells,  Anderson,  Kenner,  and  Casanavo,  while  pretending  to  be  in 
session  as  a  returning  board  for  the  purpose  of  compiling  and  canvassing  the  said 
election,  and  in  pursuance  of  said  combination  and  conspiracy,  employed  persons 
of  notoriously  bad  character  to  act  as  their  clerks  and  assistants,  to  wit,  one  Davis, 
a  man  of  notoriously  bad  character,  who  was  then  under  indictment  in  t  ho  criminal 
courts  of  Louisiana,  and  said  Cathii,  said  Blanc-hard,  and  said  Jewett,  three  of  said 
conspirators,  who  were  then  under  indictment  for  subornation  of  pe- jury  in  the 
criminal  courts  of  Louisiana ;  tho  said  Jowett  being  also  under  indictment,  in  one 
of  the  criminal  courts  of  Louisiana  for  obtaining  money  under  false  pretenses;  and 
Isadore  MeConuiok.  who  was  then  under  indictment  in  a  criminal  court  of  said 
State  charged  with  murder. 

And  that,  in  pursuance  of  said  unlawful  combination  and  conspiracy  aforesaid, 
tho  said  We'ls,  Anderson,  Koauer,  and  Cassnavo,  act  ing  in  said  returning  board, 
confided  to  their  said  clerks  and  employes,  said  co-conspirators,  the  duty  of  compil 
ing  and  canvassing  all  returns  which  were  by  said  returning  board  ordered  to  bo 
canvassed  and  compiled;  and,  although  thereto  particularly  requested  by  a  com 
munication,  as  follows — 

"To  the  honorable  returning  board  of  the  State  of  Louisiana: 

"GENTLEMEN:  The  undersigned,  acting  as  counsel  for  the  various  candidates 
upon  tho  democratic-conservative  ticket,' State,  national,  and  municipal,  with  re 
spect  show  : 

"  That  the  returns  from  various  polls  and  parishes  are  inspected  by  this  board 
and  tho  vote  announced  by  it  is  merely  that  for  governors  and  elector's  ; 

"  That  tho  tabulation  of  all  other  vbt"e8  is  turned  over  to  a  corps  of  clerks,  to  be 
done  outside  of  tho  presence  of  this  board  ; 

"That  all  of  said  clerks  are  republicans,  and  that  tho  democratic-conservative 
candidates  have  no  check  upon  them,  and  no  means  to  detect  errors  aud  fraudu 
lent  tabulations,  or  to  call  the  attention  of  this  board  to  any  such  wrong,  if  any 
exist : 

"  That  by  this  system  the  fate  of  all  other  candidates  but  governor  and  electors 
is  placed  in  the  hands  of  a  body  of  republican  clerks  with  no  check  against  erro 
neous  or  dishonest  action  on  their  part ; 

"  That  fair  play  requires  that  some  check  should  be  placed  upon  said  clerks  and 
some  protection  afforded  to  the  said  candidates  against  error  or  dishonest  action  on 
the  part  of  said  clerks  ; 

"Wherefore  they  respectfully  ask  that  they  bo  permitted  to  name  three  respect- 
ablo  persons,  and  that  to  such  parties  bo  accorded  tho  privilege  of  being  present 
in  tho  room  or  rooms  where  said  tabulation  is  progressing,  ami  of  inspecting  tho 
tabulation  and  comparing  tho  same  with  the  returns,  and  also  of  fully  inspecting 


tho  returns,  and  previous  to  tho  adoption  by  this  board  of  said  tabulation,  with  a 
view  to  satisfy  all  parties  that  there  has  been  no  tampering  or  unfair  practice  in 
connection  therewith 

"  Very  respectfully, 

"F.  C.  ZACHARIE. 
"  CHARLES  CAVANAC. 
"E.  A.  BURKE. 

"J.  R.  ALCEE  GAUTHREAUX. 
"HEXRY  C.  BROWN. 
"FRANK  McGLOIN. 
"  I  concur  herein. 

"H.  M.  SPOFFORD, 

"  Of  Counsel  " — 

they,  the  said  "Wells,  Anderson,  Kenner,  and  Casanave,  acting  as  said  board,  ex 
pressly  refused  to  permit  any  democrat,  or  any  person  selected  oy  democrats,  to  bo 
present  with  said  clerks  and  assistants  while  they  were  engaged  in  the  compilation 
and  canvass  aforesaid,  or  to  examine  into  the  correctness  of  tho  compilation  and 
canvass  made  by  said  clerks  and  assistants  as  aforesaid. 

And  that  said  returning  board,  in  pursuance  of  said  unlawful  combination  and 
conspiracy  aforesaid,  aud  for  the  purpose  of  concealing  the  animus  of  said  board 
and  inspiring  confidence  in  the  public  mind  in  tho  integrity  of  their  proceedings, 
on  tho  18th  day  of  November,  A.  D.  187C,  adopted  and  passed  a  preamble  and  reso 
lution,  as  follows : 

"  Whereas  this  board  has  learned  with  satisfaction  that  distinguished  gentlemen 
of  national  reputation,  from  other  States,  some  at  the  request  of  the  President  of 
the  United  States  and  some  at  the  request  of  the  national  executive  committee  of 
tho  democratic  party,  are  present  in  this  city,  with  the  view  to  witness  tho  pro 
ceedings  of  this  board  in  canvassing  and  compiling  tho  returns  of  tho  recent  elec 
tion  in  this  State  for  president  ial  electors,  in  order  that  the  public  opinion  of  the 
country  may  be  satisfied  as  to  tho  truth  of  the  result  and  the  fairness  of  the  means 
by  which  it  may  have  been  attained  ; 

"And  whereas  this  board  recognizes  the  importance  which  may  attach  to  the  re 
sult  of  their  proceedings,  and  that  the  public  mind  should  bo  convinced  of  its  jus 
tice  by  a  knowledge  of  the  facts  on  which  it  may  bo  based  :  Therefore, 

"Be  it  resolved,  That  this  board  does  hereby  cordially  invite  and  request  five  gen 
tlemen  from  each  of  tho  two  bodies  named,  to  be  selected  bv  themselves  respectively, 
to  attend  and  bo  present  at  tho  meetings  of  this  board  while  engaged  in  the  dis 
charge  of  its  duties  under  the  law,  in  canvassing  and  compiling  the  returns  aud 
ascertaining  and  declaring  tho  result  of  said  election  for  presidential  electors,  in 
their  capacity  as  private  citizens  of  eminent  reputation  and  high  character,  and 
as  spectators  and  witnesses  of  tho  proceedings  in  that  behalf,  of  this  board." 

But  that  said  returning  board,  being  convinced  that  a  compilation  and  canvass 
of  votes  given  at  said  election  for  presidential  electors,  made  fairly  and  openly, 
would  result  in  defeating  the  object  of  said  conspiracy,  and  compelling  said  re 
turning  board  to  certify  that  said  McEuery,  Wickiiffo,  St.  Martin,  Poche,  Do  Blanc, 
Seay,  Cobb,  and  Cross  had  been  at  said  election  duly  chosen,  elected,  and  appointed 
electors  by  the  said  State  of  Louisiana  ;  and  in  pursuance  of  said  unlawful  combi 
nation  and  conspiracy,  did  afterward,  to  wit.  on  tho  20th  day  of  November,  A.  D. 
1876,  adopt  and  pass  the  following  rules  for  the  bettor  execution  and  carrying  into 
effect  said  combination  and  conspiracy ;  that  is  to  say  : 

VII. 

"  The  returning  officers,  if  they  think  it  advisable,  may  go  into  secret  session  to 
consider  any  motion,  argument,  or  proposition  which  may  be  presented  to  them  ; 
any  member  shall  have  the  right  to  call  for  secret  session  for  the  above  purpose." 

X. 

"That  the  evidence  for  each  contested  poll  in  any  parish,  when  concluded,  shall 
•be  laid  aside  until  all  the  evidence  is  in  from  all  tho  contested  polls  in  tho  several 
parishes  where  there  may  be  contests,  and  after  tho  evidence  is  all  in  the  return 
ing  officers  will  decide  the  several  contests  in  secret  session  ;  the  parties  or  their 
attorneys  to  bo  allowed  to  submit  briefs  or  written  arguments  up  to  tho  time  fixed 
for  tho  returning  officers  going  into  secret  session,  after  which  no  additional  argu 
ment  to  bo  received  unless  by  special  consent." 

That  tho  proceedings  thus  directed  to  be  had  in  secret  were  protested  against,  by 
tho  said  McEnery,  W'icklifTe,  St.  Martin,  Poch6.  De  Blanc,  Seay,  Cobb,  and  Cross'; 
but  said  board  thereafter  proceeded  and  pretended  to  complete  their  duties  as  such 
returning  board ;  and  did  perform,  execute,  and  carry  out  the  most  important  du 
ties  devolving  upon  said  board  in  secret,  with  close-d  doors,  and  iu  tho  absence  of 
any  member  of  their  board  belonging  to  tho  dcmociYttic  party  or  any  person  what 
ever  not  a  member  of  said  board  not  belonging  to  tho  republican  party. 

That  tho  said  Wells,  Anderson.  Kenner,  and  Casanave,  acting  as  said  returning 
board,  while  engaged  in  tho  compilation  and  canvass  aforesaid,  were  applied  to  to 
permit  tho  United  States  supervisors  of  election,  duly  appointed  and  qualified  as 
such,  to  bo  present  at  and  witness  such  compilation  or  canvass. 

That  application  was  made  to  said  returning  board  in  that  behalf,  as  follows : 

"To  the  president  and  members  of  the  returning  board  of  the  State  of  Louisiana : 


whereby  the.v  are  deprived  of  tho  right  of  being  present  during  the  entire  canvass 
and  compilation  of  tho  results  of  tho  election  lately  held  iu  the  State  of  Louisiana, 
wherein  electors  for  President  and  Vico-President,  and  members  of  the  Forty-filth 
Congress  were  balloted  for,  and  tho  result  of  which  said  board  are  now  canvassing. 
"  That'  under  tho  fifth  section  of  tho  United  States  act  of  February  28, 1871,  they 
are  'to  bo  and  remain  where  the  ballot-boxes  are  kept,  at  all  times  after  the  polls  uro 


United  States  district  attorney  said : 

'"It  cannot  bo  doubted  that  tho  duty  of  the  supervisors  extends  to  the  inspection 
of  tho  entire,  election  from  its  commencement  until  the  decision  of  its  result.  If 
the  United  States  statutes  were  less  explicit  there  still  could  bo  no  doubt  of  tho 
duty  and  authority  of  tho  supervisors  to  inspect  and  canvass  every  vote  cast  for 
each  and  every  candidate,  State,  parochial,  and  Federal,  as  the  law  of  tho  State 
neither  provides  nor  allows  any  separation  of  the  election  for  Representatives  in 
Congress.  &c.,  from  the  election  of  State  and  parish  officers.  Th;;  election  is  in  law 
a  single  election,  and  the  power  of  inspection  vested  in  law  in  the  supervisors  ap- 
p^intedby  tho  court  extends  to  the  entire  election,  a  full  knowledge  of  which  may 
well  become  necessary  to  defeat  fraud." 

"  In  which  opinion  the  attorney-general  of  the  State  of  Louisiana  coincided. 


version  of  tho  popular  will. 


ELECTORAL  COMMISSION. 


"  The  undersignedrespectf  ully  asks  that  the  foregoing  protest  be  entered  upon  the 
minutes  of  the  board. 

"HENRY  M.  SPOFFORD, 

"  Of  Counsel." 

But  that  said  Wells,  Anderson,  Kenner,  and  Casanave,  acting  as  such  returning 
board,  in  further  pursuance  and  execution  of  said  unlawful  combination  and  con 
spiracy,  then  and  there  refused  to  permit  said  United  States  commissioners  of  elec 
tion  to  be  present  for  the  purpose  aforesaid,  but  proceeded  in  their  absence  to  the 
pretended  compilation  and  canvass  aforesaid. 

That  the  said  returning  board,  while  iu  session  as  aforesaid,  for  the  purpose 
aforesaid,  to  wit,  on  the  20th  day  of  November,  1870,  adopted  the  following  rule  to 
govern  their  proceedings;  that  is  to  say  : 

IX. 

"  No  ex  parte  affidavits  or  statements  shall  be  received  in  evidence,  except  as  a 
basis  to  show  that  such  fraud,  intimidation,  or  other  illegal  practice  had  at  some 
poll  requires  investigation  ;  but  the  returns  and  affidavits  authorized  by  law,  made 
by  officers  of  election,  or  in  verification  of  statements  as  required  by  law,  shall  be 
received  in  evidence  as  prima  facie." 

But  that  said  board  subsequently,  while  sitting  as  aforesaid,  for  the  purposes 
aforesaid,  having  become  convinced  that  they  conld  not,  upon  other  than  ex  pane 
testimony,  so  manipulate  the  said  compilation  and  canvass  as  to  declare-  that  said 
Kellogg,' Burch,  Joseph,  Sheldon,  Marks,  Levissee,  Brewster,  and  Jolfriou  were 
elected  electors  at  said  election,  and  in  further  pursuance  of  said  unlawful  combi 
nation  and  conspiracy,  did  subsequently  modify  said  rule,  and  declare  and  decide 
that,  as  such  returning  board,  they  would  receive  ex  parte  affidavits,  under  which 
last  decision  of  said  board  over  two  hundred  printed  pages  of  ex  parlr,  testimony 
was  received  by  said  board  in  favor  of  said  Kellogg  and  others  ;  and  afterward, 
•when  the  said  VcEnery  and  others  offered  ex  parts  evidence  to  contradict  the  ex 
parte  evidence  aforesaid,  the  said  returning  board  reversed  its  last  decision,  and 
refused  to  receive  ex  parte  affidavits  in  contradiction  as  aforesaid. 

And  that  in  pursuance  of  said  unlawful  combination  and  conspiracy  the  said  re 
turning  board,  iu  violation  of  a  law  of  said  State,  approved  November  20,  Is72, 
neglected  and  refused  to  compile  and  canv-tss  the  statement  of  votes  made  by  the 
commissioners  of  election  which  wore  before  them  according  to  law  for  canvass 
and  compilation  as  aforesaid  in  regard  to  the  election  of  presidential  electors,  but 
that  said  board  did,  in  pursuance  "and  further  execution  of  said  combination  and 
conspiracy,  canvass  and  compile  only  the  consolidated  statements  and  returns  made 
to  them  by  the  supervisors  of  registration  of  the  several  parishes  of  said  State. 

And  that  said  returning  board,  in  pursuance  and  further  execution  of  said  unlaw 
ful  combination  and  conspiracy,  did  knowingly,  willfully,  and  fraudulently  refuse 
to  compile  and  canvass  the  votes  given  for  electors  at  said  election  iu  more  than 
twenty  parishes  of  said  State,  as  was  shown  and  appeared  by  and  upon  the  consoli 
dated  statement  and  return  made  to  them  by  said  supervisors  of  said  parishes. 

And  that  said  returning  board  did,  in  said  canvass  and  compilation,  count  and 
estimate,  as  a  foundation  for  their  determination  in  the  promises,  hundreds  of  votes 
which  had  not  been  returned  and  cortitied  to  them  cither  by  the  commissioners  of 
election  in  said  State  or  by  the  supervisors  of  registration  in  said  State,  they,  the 
said  members  of  said  board,  then  and  there  well  knowing  that  they  had  no  right  or 
authority  to  estimate  the  same  for  the  purpose  aforesaid. 

And  that  said  returuiug  board,  in  further  pursuance  and  execution  of  said  unlaw 
ful  combination  and  conspiracy,  knowingly,  willfully,  falsely,  and  fraudulently  did 
make  a,  certificate  and  return  to  the  secretary  of  state  that  said  Kellogg,  Burch, 
Joseph,  Sheldon,  Marks,  Levissee.  Brewster,  and  JolTrion  had  received  majorities  of 
all  the  legal  votes  cast  at  said  election  of  November  7.  187IJ,  for  presidential  elect 
ors,  they  then  and  there  well  knowing  that  the  said  McEncry.  Wickliffe,  St.  Martin, 
Poche,  Do  Blanc,  Seay,  Cobb,  and  Cross  had  received  majorities  of  all  the  votes  c.ist 
at  said  election  for  presidential  electors,  and  were  duly  elected  as  the  presidential 
electors  of  said  State. 

And  that  the  said  returning  board,  in  makius  said  statement,  certificate,  and  re 
turn  to  the  secretary  of  state,  were  not  deceived  nor  mistaken  in  the  premises,  but 
knowingly,  willfully,  and  fraudulently  made  what  they  well  knew  when  they  made 
it  was  a  false  and  fraudulent  statement,  certificate,  and  return  ;  and  that  the  said 
false  and  fraudulent  statement,  certificate,  and  return,  made  by  said  returning  board 
to  the  secretary  of  state  in  that  behalf,  vras  made  by  the  members  of  said  returning 
board  in  pursuance  and  execution  of,  and  only  in  pursuance  and  execution  of,  said 
unlawful  combination  and  conspiracy. 

And  that  said  returning  board  while  in  session  as  aforesaid  for  the  purpose  afore 
said,  in  further  pursuance  and  execution  of  said  unlawful  combination  and  con 
spiracy,  did  alter,  change,  and  forge,  or  cause  to  be  altered,  changed,  and  forged, 
the  consolidated  stateme'nt  and  return  of  the  supervisor  of  registration  for  the  par 
ish  of  Vernon,  iu  said  State,  in  the  manner  following,  to  wit:  The  said  consol 
idated  statement,  as  made  and  returned  to  said  board,  showed  that  of  the  legal 
votes  given  in  said  parish  for  electors  at  said  election  of  November  7,  1876,  said 
McEnery  received  647,  said  Wickliffe  received  647,  said  St.  Martin  received  617, 
said  Poch6  received  647,  said  De  Blanc  received  tin,  said  Seay  received  647,  said 
Cobb  received  C47,  said  Cross  received  647 ;  and  that  said  Kellogg  received  none, 
said  Burch  received  none,  said  Joseph  received  2,  said  Brewster  received  2,  said 
Marks  received  2,  said  Levissee  received  2,  said  Jotfrion  received  2,  said  Sheldon 
received  2;  and  said  board  altered,  cha.uged,  and  forged,  or  caused  to  bo  altered, 
changed,  and  forged,  said  consolidated  statement  so  as  to  make  the  same  falsely 
and  fraudulently  show  that  the  said  McEnery  received  4(iO,  said  Wiekliffe  received 
4ti9.  said  St.  Martin  received  400,  said  Poche  received  469,  said  De  Blanc  received 
46'J,  said  Seay  received  46!),  said  Cobb  received  4GD,  said  Cross  received  469 ;  and 
that  said  Kellogg  received  17rf,  said  Burch  received  178,  said  Joseph  received  178, 
said  Sheldon  received  180,  said  Marks  received  160,  said  Levissee  received  IcO,  said 
Brewster  received  180,  said  Jofi'riou  received  180  ;  and  that  said  returning  board 
•while  in  session  as  aforesaid  for  the  purpose  aforesaid,  to  pretend  to  Justify  the  al 
teration  and  for  ery  of  said  consolidated  statement,  procured  and  pretended  to  act 
upon  three  forged  affidavits,  purporting  to  have  been  made  and  swoin  to  by  Sam 
uel  Carter,  Thomas  Brown,  and  Samuel  Collins,  they,  the  said  members  of  said 
returning  board,  then  and  there,  well  knowing  that  said  pretended  affidavits  were 
false  and  forged,  and  that  no  such  persons  were  in  existence  as  purported  to  make 
naid  affidavits.    And  that  said  members  of  said  returning  lx>ard,  acting  as  saic 
board,  in  pursuance  and  execution  of  said  unlawful  combination  and  conspiracy 
did,  in  their  pretended  canvass  and  compilation  of  the  legal  votes  given  at  saic 
election  on  the  7th  day  of  November,  A.  D.  1876,  for  presidential  electors  in  sai( 
State  of  Lnnisiana.  as  shown  to  thorn  by  the  statements,  papers,  and  returns  made 
according  to  law  by  the  commissioners  of  election  presiding  over  and  conducting 
said  election  at  tho  several  polls  and  voting-places  in  said  State,  all  of  which  vote? 
were  legally  cast  by  legal  voters  in  said  State  at  said  election,  knowingly,  will 
fully,  and  fraudulently,  and  without  any  authority  of  law  whatever,  excluded  am 
refused  to  count  and  estirrat.1,  or  compile  or  canvass  votes  given  at  said  election 
for  electors,  as  follows,  which  papers,  statements,  and  returns  were  before  them 
and  which  it  was  their  dnty  by  law  to  compile  and  canvass,  that  is  to  say:  for  saic 
John  McEnery,  10,280;  for  said  11.  C.  Wiekliffe,  10.293;  for  said  L.  St.  Martin 
10,291;  for  said  F.  P.  Poche,  10,2;0  ;  for  said  A.  De  Blanc,  10,289;  for  said  W.  A 
Snay,  10,291;  for  said  11.  A.  Cobb,  10,261;  for  said  K.  A.  Cross,  10.281  ;  they,  the 
saiii  members  of  said  returning  board,  then  and  there,  well  knowing  that  all  o 
said  votes  which  they  neglected  and  refused  to  canvass  and  compile  had  beei 
duly  and  legally  cast  at  said  election  for  presidential  electors  by  legal  voters  o 
said  State;  and  then  and  there,  well  knowing  that  had  they  considered,  estimatetl 


nd  counted,  compiled,  and  canvassed  said  votes  as  they  then  and  there  well 

knew  it  was  their  duty  to  do,  it  would  have  appeared,  and  they  would  have  been 
ompelled  to  certify  and  return  to  the  secretary  of  state,  that  said  Kellogg  had 
lot  been  duly  elected  or  appointed  an  elector  for  said  State ;  but  that  at  said  elec- 
ion  the  said  McEuery,  the  said  Wickiitfo,  tho  said  St.  Martin,  the  said  Poch6, 
he  said  Do  Blanc,  the  said  Seay,  the  said  Cobb,  and  the  said  Cross  had  been  duly 
ilected  and  appointed  presidential  electors  in  said  State. 

And  that  by  false,  fraudulent,  willful,  and  corrupt  acts  and  omissions  to  act  by 
aid  returning  board  as  aforesaid  in  tho  matter  aforesaid,  and  by  said  nonfeasance, 

misfeasance,  and  malfeasance  of  said  returning  board,  as  hereinbefore  mentioned, 
he  said  returning  board  made  to  the  secretary  of  slate  of  said  State  tho  statement. 
;ertificate,  and  return  upon  which  the  said  Kellogg,  as  de  facto  governor  of  said 
state,  pretended  to  make  his  said  false  certificate,  certifying  that  himself  and  oth- 
^rs  had  been  duly  appointed  electors  for  said  State,  as  hereinbefore  mentioned  ; 

and  that  said  statement,  certificate,  and  return  made  by  said  returning  board,  and 
hat  the  said  certificate  made  by  the  said  Kellogg,  as  de  facto  governor,  each,  every, 
md  all  were  made  in  pursuance  and  execution  of  said  unlawful  and  criminal  combi 

nation  and  conspiracy,  as  was  well  known  to  and  intended  by  each  and  every  of  tho 
nenibers  of  said  returning  board  when  they  made  their  said  false  statement,  certifi- 
•ate,  and  return  te  tho  secretary  of  state  of  said  State,  and  by  the  said  Kellogg 
vhen,  as  sovernor  de  facto  of  said  State,  he  made  his  said  false  certificate  hereinbe- 
bre  mentioned. 

in. 

"Wo  further  offer  to  prove- 
That  Oscar  Joffriou  was  on  the  7th  day  of  November,  A.  D.  1876,  supervisor  of 
registration  of  the  parish  of  Pointe  Coupe6,  and  that  he  acted  and  officiated  as 
such  supervisor  of  registration  for  said  parish  at  the  said  election  for  presidential 
ilectors  on  that  day  ;  and  that  he  is  the  same  person  who  acted  as  one  of  the  elect- 
jr.s  for  said  State,  and  on  tho  Cth  day  of  December.  A.  D.  1876,  as  an  elector  cast  a 
vote  for  Rutherford  B.  Hayes  for  President  of  the  United  States  and  for  William 
A.  Wheeler  for  Vice-President  of  the  United  States. 

IV. 

We  further  offer  to  prore— 

That  on  the  7th  day  of  November,  A.  D.  1876,  A.  B.  Levissee,  who  was  one  of  the 
pretended  college  of  electors  of  the  State  of  Louisiana,  and  who  iu  said  college 
rave  a  vote  for  Rutherford  B  Hayes  for  President  of  the  United  States  and  for 
William  A.  Wheeler  for  Vice-President  of  the  United  States,  was  at  tho  time  of 
such  election  a  court  commissioner  of  the  circuit  court  of  the  United  States  for  the 
district  of  Louisiana,  which  is  an  office  of  honor,  profit,  and  trust  under  the  Gov- 
rnmeut  of  the  United  Sto.tes. 

V. 

We  further  offer  to  prove — 

That  on  the  7th  day  of  November,  A.  D.  1876,  O.  n.  Brewster,  who  was  one  of  the 
pretended  electors  in  tho  pretended  college  of  electors  of  the  State  of  Louisiana, 
and  who  in  said  college  gave  a  vote  for  Rutherford  B.  Hayes  for  President  of  the 
Dnited  States  and  for  William  A.  Wheelerfor  Vice-President of  the  United  States, 
was  at  the  time  of  such  election  as  aforesaid  holding  an  office  of  honor,  profit,  and 
trust  under  the  Government  of  the  United  States,  to  wit,  the  office  of  surveyor- 
general  of  the  laud  office  for  the  district  of  Louisiana. 

VI. 

Wo  further  offer  to  prove — 

That  on  the  7th  day  of  November,  1876,  Morris  Marks,  one  of  tho  pretended 
electors,  who  in  said  college  of  electors  cast  a  vote  for  Rutherford  B.  Hayes  for 
President  of  the  United  States  and  a  vote  for  William  A.  Wheeler  for  Vice-Presi 
dent  of  the  United  States,  was,  ever  since  has  been,  and  now  is  holding  and  exer 
cising  the  office  of  district  attorney  of  tho  fourth  .judicial  district  of  said  State, 
and  receiving  the  salary  by  law  attached  to  said  office. 

VIL 

We  further  offer  to  prove — 

That  on  the  7th  day  of  November,  A.  D.  1876,  J.  HenriBurch,  who  wasoneof  the 
>retended  electors,  who  in  said  pretended  electoral  college  gave  a  yoto  for  Ruther- 
Jord  B.  Hayes  for  President  of  the  UnitedStates  and  a  vote  for  William  A.  Wheeler 
for  Vice-President  of  the  United  States,  was  holding  tho  following  offices  under 
the  constitution  and  laws  of  said  State,  that  is  to  say:  members  of  tho  board  of 
control  of  the  State  penitentiary,  also  administrator  of  deaf  and  dumb  asylum  of 
said  State  to  both  of  which  offices  he  had  been  appointed  by  the  governor,  with 
the  advice  and  consent  of  the  senate  of  said  State,  both  being  offices  with  salaries 
fixed  by  law,  and  also  the  office  of  treasurer  of  the  parish  school  board  for  tho 
parish  of  East  Baton  Rouge ;  and  that  said  Burch,  ever  since  tho  said  7th  day  of 
November,  (and  prior  thereto,)  has  exercised  and  still  is  exercising  the  functions 
of  all  said  offices  and  receiving  the  emoluments  thereof. 

vni. 

We  further  offer  to  prove  tho  canvass  and  compilation  actually  made  by  said  re 
turning  board,  showing  what  parishes  and  voting-places  and  polls  were  compiled 
and  canvassed  and  what  polls  or  voting-places  were  excluded  by  said  returning 
board  from  their  canvass  and  compilation  of  votes  given  for  presidential  electors ; 
and  we  also  offer  to  show  what  statements  and  returns  of  tho  commissioners  of 
election  and  of  the  supervisors  of  registration  were  duly  before  said  returning 
board. 

We  further  offer  to  prove- 
That  the  affidavits  on  which  the  allegations  of  tumult  were  made  were  forged  and 
false. 

One  member  of  the  board  offered  to  receive  a  bribe. 

XI. 

That  they  agreed  to  and  did  receive  as  follows,  votes  never  cast  for  any  elector. 

In  tho  first  place  there  seems  to  be  some  confusion  as  to  what  elec 
tion  laws  were  in  force  in  Louisiana  on  the  day  of  election,  and  I  desire 
to  ascertain  what  laws  the  canvassing  board  acted  under,  so  as  to  be 
able  to  judge  of  their  conduct  tinder  the  law. 

In  1863  there  was  a  general  election  law  passed  in  the  State  which 
provided  for  all  elections,  including  State  and  presidential. 

In  1870  the  laws  of  Louisiana  were  revised,  and  tho  election  law  of 
1868  was  embraced  in  these  revised  statutes  under  two  heads,  or  chap 
ters,  each  making  a  distinct  and  separate  act.  One  provided  for  State 
and  tho  other  for  presidential  elections. 

Iu  1872,  November  20,  an  act  was  passed  on  the  subject  of  both 
State  and  presidential  elections,  the  seventy-first  section  of  which  is 
in  these  words : 

SEC  71.  Be  it  further  enacted,  <6c.,  That  this  act  shall  take  effect  from  and  after 
its  passage,  and  that  all  others  on  the  subject  of  election  laws  be,  and  the  same  are 
hereby,  repealed. 

Approved  November  20,  1872. 

Under  this  repealing  clause  all  other  acts  on  the  subject  of  election 


228 


ELECTORAL  COMMISSION. 


were  repealed,  and  left  the  act  of  1872  the  only  election  law  of  Lou 
isiana. 

The  following  provisions  will  be  found  in  this  law  of  1872  : 

SECTION  1.  lie  it  enacted  by  the  senate  and  house  of  representatives  of  the  State  of 
Louisiana  in  general  assembly  convened,  That  all  elections  for  State,  parish,  and 
judicial  officers,  members  of  the  General  Assembly,  and  for  members  or  Congress, 
shall  bo  held  on  the  'first  Monday  in  November ;  and  said  elections  shall  be  styled 
the  general  elections.  They  shall  be  held  in  the  manner  and  form  and  subject  to 
the  regulations  hereinafter  prescribed,  and  in  no  other. 

SEC.  2.  Jie  it  further  cnacttd,  &c.,  That  five  persons,  to  be  elected  by  the  senate 
from  all  political  parties,  shall  be  the  returning  officers  for  all  elections  in  the 
State,  a  majority  ot'  whom  shall  constitute  a  quorum,  and  ha,ve  power  to  make  the 
returns  of  all  elections.  In  c:>se  of  any  vacancy  by  death,  resignation,  or  otherwise, 
by  either  of  the  board,  then  the  vacancy  shall  be  filled  by  the  residue  of  the  board 
of  returning  officers.  The  returning  officers  shall,  after  each  election,  before  enter 
ing  on  their  duties,  take  and  subscribe  to  the  following  oath  before  a  judge  of  the 
supreme  or  any  district  court. 

"I,  A  B,  do  solemnly  swear  (or  affirm)  that  I  will  faithfully  and  diligently  per 
form  the  duties  of  a,  returning  officer  as  prescribed  by  law  ;  that  1  will  carefully 
and  honestly  canvass  and  compile  the  statements  of  the  votes,  and  make  a  true  and 
correct  return  of  the  election  :  So  help  me  God." 

Within  ten  days  after  the  closing  of  the  election  said  returning  officers  shall  meet 
in  New  Orleans  to  canvass  and  compile  the  statement  of  votes  'made  by  the  commis 
sioners  of  election,  and  make  returns  of  the  election  to  the  secretary  of  state.  They 
shall  continue  in  session  until  such  returns  have  been  compiled.  The  presiding 
officer  shall,  at  such  meeting,  open,  in  the  presence  of  the  said  returning  officers, 
the  statements  of  the  commissioners  of  election,  and  the  said  returning  officers 
shall,  from  said  statements,  canvass  ami  compile  the  returns  of  the  election  in 
duplicate  ;  one  copy  of  such  returns  they  shall  file  in  the  office  of  the  secretary  of 
state,  and  of  one  copy  they  shall  make  public  proclamation,  by  printing  in  the  offi 
cial  journal  and  such  other  newspapers  as  they  may  deem  proper,  declaring  the 
names  of  all  persons  and  officers  voted  for,  the  number  of  votes  for  each  person,  and 
the  names  of  the  persons  who  have  been  duly  and  lawfully  elected.  The  returns  of 
the  election  thus  rnade  and  promulgated  shall  be  prima  facie  evidence  in  all  courts  of 
justice  and  before  all  civil  officers,  until  gf.t  aside  after  conttnt  according  to  law,  of  the 
right  of  any  person  named  therein  to  hold  and  exercise  the  office  to  which  he  shall  by  such 
return  be  declared  el"i  ted.  The  governor  shall,  within  thirty  days  thereafter,  issue 
commissions  to  all  officers  thus  declared  elected,  who  are  required  by  law  to  be  com 
missioned. 

SEC.  3.  Be  it  further  enacted,  rf-c.,  That  in  such  canvass  and  compilation  the  re 
turning  officers  shall  observe  the  following  order :  They  shall  compile  first  the 
statements  from  all  polls  or  voting-places  at  which  there  shall  have  been  a  fair, 
free,  and  peaceable  registration  and  election.  "Whenever,  from  any  poll  or  voting- 
place,  there  shall  be  received  the  statement  of  any  supervisor  of  registration  or 
commissioner  of  election,  in  form  as  required  by  section  2G  of  this  act,  on  affidavit 
of  three  or  more  citizens,  of  any  riot,  tumult,  acts  of  violence,  intimidation,  armed 
disturbance,  bribery,  or  corrupt  influences,  which  prevented,  or  tended  to  prevent, 
a  fair,  free,  and  peaceable  vote  of  all  qualified  electors  entitled  to  vote  at  such  poll 
or  voting-place,  such  returning  officers  shall  not  canvass,  count,  or  compile  the 
statement  of  votes  from  such  poll  or  voting-place  until  the  statements  from  all 
other  polls  or  voting-places  shall  have  been  canvassed  and  compiled.  The  return 
ing  otlicers  shall  then  proceed  to  investigate  the  statements  i.f  riot,  tumult,  acts  of 
violence,  intimidation,  armed  disturbance,  bribery,  or  corrupt  influences  at  any 
such  poll,  or  voting-place ;  and  if  from  the  evidence  of  such  statement  they  shall  be 
convinced  that  such  riot,  tumult,  acts  of  violence,  intimidation,  armed  disturbance. 
bribery,  or  corrupt  influences,  did  not  materially  interfere  with  tin  purity  and 
freedom  of  the  election  at  such  poll  or  voting-place,  or  did  not  prevent  a  snflicient 
number  of  qualitied  voters  thereat  from  registering  or  voting  to  materially  change 
the  result  of  the  election,  then,  and  not  otherwise,  said  returning  officers  shall  can- 


end  they  shall  have  power  to  send  for  persons  and  papers.  If,  after  such  examina 
tion,  the  said  returning  officers  shall  be  convinced  that  said  not.  tumult,  acts  of 
violence,  intimidation,  armed  disturbance,  bribery,  or  corrupt  influences  did  ma 
terially  interfere  with  the  purity  and  freedom  of  the  election  at  such  poll  or  voting- 
place,  or  did  prevent  a  sufficient  number  of  the  qualitied  electors  thereat  from 
registering  and  voting  to  materially  change  the  result  of  the  election,  then  the  said 
returning  otlicers  shall  not  canvass  or  compile  the  statement  of  the  votes  of  such 
poll  or  voting-place,  but  shall  exclude  it  from  their  returns :  Provided,  That  any 
person  interested  in  said  election  by  reason  of  being  a  candidate  for  office  shall  be 
allowed  a  hearing  before  said  returning  officers  upon  making  application  within  the 
time  allowed  for  the  forwarding  of  the  returns  of  said  election. 

In  the  first  place,  it  is  offered  to  prove  that  this  canvassing  board  was 
not  legal  because  it  should  have  consisted  of  five  whereas  they  offer  to 
prove  that  it  only  consisted  of  four.  That  these  four  persistently  re 
fused  to  fill  the  board  and  give  the  democrats  a  representation  in  said 
board,  and  that  such  refusal  was  for  the  purpose  of  concealing  from 
opposite  party  the  fraudulent  acts  of  said  board  by  which  they  gave 
the  returns  to  the  Hayes  electors. 

Was  it  a  legal  board  ? 

The  general  doctrine  seems  to  be  that  when  authority  of  a  public 
nature  has  been  delegated  to  a  certain  number  the  authority  cannot 
be  exercised  by  less  than  the  full  number,  and  although  a  quorum 
shall  consist  of  a  majoiity,  yet  all  of  the  five  must  have  the  oppor 
tunity  to  attend  if  they  please. 

This  is  especially  true  when  the  board  is  to  consist  of  the  represent 
atives  of  the  different  political  parties  and  only  one  of  them  is  repre 
sented  in  an  incomplete  board.  • 

This  question  was  well  considered  in  the  case  of  Wentworth  vs. 
Farmington,  49  N.  Hanip.,  120. 

The  case  is  directly  in  point  on  the  proposition  submitted,  and  the 
court,  in  its  opinion, says: 

Even  if  the  statute  goes  no  further  than  the  common-law  rule,  a  report  signed 
by  the  majority,  under  the  circumstances  of  this  case,  would  have  been  good.  "Ac 
cording  to  the  case  of  Glindley  et  al.  vs.  Barker,  1  B.  &  P.,  2i8,  before  cited  it 
would  have  been  deemed  to  be  the  report  of  the  whole.  The  real  point  of  the 
objection  is  that  at  the  time  when  the  report  was  signed  there  was  a  vacancy  in 
the  board  of  commissioners  caused  by  the  removal  of  the  chairman  from  the  county  • 
and  the  general  doctrine  that  in  case  there  bo  a  vacancy  in  the  board  the  remaining 
mem  hois  cannot act  seems  to  bo  unquestionable.  (Palmer  vs.  Conwav  22  N  H 
148 ;  Mitchell  vs.  Ilolderness,  31  N.  H.,  209,  214.) 


members  of  the  board  in  office  at  the  time,  there  was  no  such  board  as  the  statute 
requires,  and  therefore  there  could  be  no  action  of  the  majority. 

In  that  ease  a  report  laying  out  a  highway  had  been  recommitted  to  the  same 
board,  and  a  hearing  notified,  and  before  the  time  appointed  one  of  the  commis 
sioners  died,  but  the  others  went  on  with  the  hearing  and  made  several  changes  in 
the  report,  and  upon  the  report  being  again  recommitted,  the  same  two  commis 
sioners  made  further  changes,  and  the  report,  upon  full  consideration,  was  set  a  side 
for  want  of  authority  in  those  commissioners  to  act. 

Reference  is,  also  made  to  Pell  vs.  Ullman,  21  Barb.,  500;  Pulaski 
Co.  vs.  Lincoln,  9  Ark.,  320 ;  People  vs.  Coghill,  47  Cal.,  361. 

I  desire  on  this  point  also  to  refer  to  an  able  opinion  pronounced 
on  this  question  by  Associate  Justice  MILLER,  a  member  of  this  Com 
mission,  which  has  been  furnished  me  by  Mr.  Representative  ABBOTT. 
It  will  be  found  in  1  Woolworth's  Circuit  Court  Report,  175,  and  was 
pronounced  in  the  case  of  Schenck  TS.  Peay.  Mr.  Justice  MILLER 
says : 

We  understand  it  to  bo  well  settled  that  where  authority  of  this  kind  is  conferred 
on  three  or  more  persons,  in  order  to  make  its  exercise  valid,  all  must  be  present 
and  participate,  or  have  an  opportunity  to  participate,  in  the  proceedings,  although 
some  may  dissent  from  the  action  determined  on.  The  ;iction  of  two  out  of  three 
commissioners,  to  all  of  whom  was  confided  a  power  to  be  exercised,  cannot  be 
upheld  when  the  third  party  took  no  part  in  the  transaction  and  was  ignorant  of 
what  was  done,  gave  no  implied  consent  to  the  action  of  the  others,  and  was  neither 
consulted  by  them  nor  had  any  opportunity  to  exert  his  legitimate  influence  in  the 
determination  of  the  course  to  be  pursued.  Such  is  the  uneontradicted  course  of 


466;  Green  vs.  Miller,  6  Johnson,  39;  Kirk  vs.  Ball,  12  Eng  L.  &  E.,  385;  Crocker 
vs.  Crane,  21  Wendell,  211 ;  Doughtery  vs.  Hope,  1  Comstock,  79,  252;  ib.,  3  Demo, 
252,  259.) 

The  case  before  us  goes  even  beyond  this,  for,  according  to  the  statement  of  the 
bill,  there  never  was  a  board  of  commissioners  in  existence  until  after  the  proceed 
ings  in  regard  to  his  title  were  completed.  The  law  required  three  commissioners. 
A  l*ss  number  was  not  a  board  and  could  do  nothing.  The  third  commissioner  fur 
Arkansas,  although  nominated  and  confirmed,  did  not  qualify  or  enter  upon  the 
duties  of  his  otlice  until  after  the  sale  of  the  lots  to  the  defendants.  There  was, 
therefore,  no  board  of  commissioners  in  existence  authorized  to  assent:  the  tax,  to  re  five 
the  money,  or  to  sell  the  property.  If  Congress  had  intended  to  confide  them  important 
functions  to  tivo  persons,  it  would  not  hive  required  the  appointment  of  the  third.  If 
it  had  been  willing  that  two  out  of  the  three  should  act,  the  sta'ute  could  easily  have 
made  provision  for  that  contingency,  as  has  since  been  done  by  the  act  of  1865. 

This  reasoning  seems  perfectly  conclusive,  and  I  take  it  for  granted 
will  satisfy  the  mind  of  at  least  one  of  this  Commission  that  this 
board  of  four  had  no  right  to  canvass  the  Louisiana  returns,  and  that 
their  determination  amounts  to  nothing — absolutely  nothing. 

But  this  is  not  all.  By  the  law  of  1872,  above  quoted,  in  the  third 
section  the  order  to  be  observed  by  the  said  returning  officers  is  spe 
cifically  laid  down.  They  shall  compile  first  the  statements  from  all 
polls  where  the  election  was  fair,  free,  and  peaceable.  Thisls  a  mere 
addition  or  summarizing  of  the  results  of  each  poll,  and  shall  be  con 
tinued  through  the  entire  list  of  polls  or  parishes  in  the  State,  unless 
there  shall  be  received  from  some  poll  or  polls  a  statement  required 
by  section  26,  and  then  these  last  polla  are  not  to  be  canvassed  until 
all  the  others  are  compiled. 

Section  26  is  as  follows : 

SEC.  £6.  Be  it  further  enacted,  d-c..  That  in  any  parish,  precinct,  ward,  city,  or 
town  in  which  during  the  time  of  registration,  or  re  vision  of  registration,  or  onauy 
day  of  election,  there  shall  be  any  riot,  tumult,  acts  of  violence,  intimidation,  and 
disturbance,  bribery  or  corrupt  influences,  at  any  place  within  said  parish. or  ator 
near  any  poll  or  voting-place,  or  place  of  registration  or  revision  of  registration, 
which  riot,  tumult,  acts  of  violence,  intimidation,  and  disturbance,  bribery,  or  cor 
rupt  influences  shall  prevent,  or  tend  to  prevent,  a  fair,  free,  peaceable.' and  lull 
vote  of  all  the  qualified  electors  of  said  parish,  precinct,  ward,  city,  or  town,  it  shall 
bo  the  duty  of  the  commissioners  of  election,  if  such  riot,  tumult,  acts  of  violence, 
intimidation,  and  disturbance,  bribery,  or  corrupt  influences  occur  on  the  day  of 
election,  or  of  the  supervision  of  registration  of  the  parish,  if  they  occur  during  the 
time  of  registration,  or  revision  of  registration,  to  make  in  duplicate  and  under  out  h 
a  clear  and  full  statement  of  all  the  facts  relating  thereto  and  of  the  effect  produced 
by  such  riot,  tumult,  acts  of  violence,  intimidation,  and  disturbances,  bribery  or 
corrupt  influences  in  preventing  a  fair,  free,  peaceable,  and  full  registration  or  elec 
tion,  and  of  the  number  of  qualified  voters  deterred  by  such  riots,  tumult,  acts  of 
violence,  intimidation,  and  disturbance,  bribery,  or  corrupt  influences,  from  regis 
tering  or  voting,  which  statement  shall  also  be  corroborated  under  oath  by  three  re 
spectable  citizens,  qualified  electors  of  the  parish.  When  such  statement  is  made 
by  a  commissioner  of  election  or  a  supervisor  of  registration,  he  shall  forward  it  in 
duplicate  to  the  supervisor  of  registration  of  the  parish,  it'  in  the  city  of  New  Or 
leans  to  the  secretary  of  state,  one  copy  of  which,  if  made  to  the  supervisor  of  reg 
istration,  shall  be  forwarded  by  him  to  the  returning  officers  provided  for  in  section 
two  of  this  iict,  when  ho  makes  the  returns  of  election  in  his  parish.  His  copy  of 
said  statement  shall  bo  so  annexed  to  his  returns  of  elections,  by  paste,  wax,  or 
some  adhesive  substance,  that  the  same  can  be  kept  together,  anil  the  other  copy 
the  supervisor  of  registration  shall  deliver  to  the  clerk  of  the  court  of  his  parish  tor 
the  use  of  the  district  attorney. 

Now,  unless  this  twenty-sixth  section  is  complied  with  and  the  cif- 
fidavit  therein  prescribed  is  made  within  twenty-four  hours  after  the 
election  and  shall  accompany  the  returns  from  the  polls  attached  to 
the  certificate,  the  returning  officers  are  absolutely  without  jurisdic 
tion  to  inquire  into  any  alleged  riot,  tumult,  or  acts  of  violence.  It 
is  offered  to  be  proved  that  the  returning  officers  did  inquire  into  and 
throw  out  polls  when  no  such  affidavits  accompanied  the  returns,  and 
that  by  thus  throwing  out  polls  and  parishes,  the  majority  for  the  Til- 
den  electors  was  overcome  and  a  majority  made  to  appear  for  the  Hayes 
electors.  We  must  act  on  this  offer  to  prove  in  a  motion  to  admit  the 
evidence  as  if  the  proof  would  come  up  to  the  offer.  If  this  be  so, 
then  the  returning  officers — granting  for  the  sake  of  the  argument 
that  they  had  the  right  to  proceed  without  filling  the  board — pro 
ceeded  without  jurisdiction  and  had  no  more  right  to  throw  out  par 
ishes  than  any  other  persons  had  to  act  in  the  premises.  If  the  offer 
of  proof  is  made  good,  these  returning  officers  did  not  commit  an  er 
ror  of  judgment  in  a  matter  committed  to  their  discretion,  but  pro- 


ELECTORAL  COMMISSION. 


229 


ceeded  without  jurisdiction  and  were  mere  usurpers.  It  is  alleged  in 
the  offers  of  proof  that  affidavits  provided  for  by  the  twenty-sixth 
section  did  not  accompany  the  returns  from  the  polls,  but  were  sup 
plied  in  New  Orleans  long  after  the  time  prescribed  by  that  section, 
and  were  made  by  persons  who  knew  nothing  about  the  facts  they 
were  swearing  to  ;  that  fraud  and  perjury  were  resorted  to  to  afford 
these  returning  officers  a  chance  or  pretext  for  throwing  out  these  re 
turns. 

To  confirm  my  view  of  tho  powers  and  duties  of  these  returning 
officers,  under  the  third  and  twenty-sixth  sections,  I  quote  from  a 
report  of  House  committee  dated  February  23,  1875,  and  signed  by 
GEORGE  F.  HOAR,  William  A.  Wheeler,  and  W.  P.  Frye. 
After  quoting  said  sections  the  report  proceeds  to  state  : 
Upon  this  statute  we  are  clearly  of  opinion  that  tho  returning  board  had  no  rir/ht 
to  do  any  tiling  except  to  canvass  and  compile  the  returns  which  were  lawfully  made  to 
them  by  the  local  officers,  exc-pt  in  cases  where  they  were  accompanied  by  the  certificate 
of  the  supervisor  or  commissioner  provided  in  the  third  section.  In  such  cases  the 
last  sentence  of  that  section  shows  that  it  was  expected  that  they  would  ordinarily 
exercise  the  grave  and  delicate  duty  of  investigating  charges  of  riot,  tumult, 
bribery  or  corruption,  on  a  hearing  of  the  parties  interested  in  the  ollico.  Itnever 
could  have  been  meant  that  this  board  of  its  own  notion,  sitting  in  Xew  Orleans, 
at  a  distance  from  the  place  of  voting,  and  without  notice,  could  decide  the  rights 
of  persons  claiming  to  be  elected. 

This  construction  of  tho  powers  of  the  returning  board  of  Lou 
isiana  has  been  acquiesced  in  by  both  Houses  of  Congress,  and  the 
electoral  vote  of  Louisiana  cast  in  1S72  was  rejected  by  tho  concur 
rent  action  of  the  Senate  and  House  of  Representatives,  because  the 
laws  of  said  State  had  not  been  complied  with  in  the  canvass  and 
return  of  the  votes  cast  for  the  appointment  of  the  electors.  See 
pages  39(5-407  Compilation  of  Proceedings  of  Counting  the  Elect 
oral  Votes. 

Of  the  votes  actually  cast  at  the  late  election  for  appointment  of 
electors  in  Louisiana,  the  democratic  electors  received  majorities  rang 
ing  from  5,'.WO  to  8,990 ;  on  the  face  of  the  returns  as  made  by  the 
supervisors  of  registration  to  the  board  of  returning  officers,  their 
majorities  ranged  froin3,4~>9to  0,405,  but  by  the  canvass  and  the  return 
made  by  the  returning  officers  majorities  were  certified  in  favor  of 
the  republican  electors,  ranging  from  3,437  to  4,800.  To  produce  this 
result,  sixty-nine  polls  wore  rejected,  embracing  twenty-two  parishes 
in  whole  or  in  part. 

It  is  believed  that  in  no  single  instance  did  the  returning  officers 
have  this  foundation  laid  for  inquiring  into  and  rejecting  the  re 
turns  from  any  parish.  This  board  was  of  special  jurisdiction,  and 
its  action,  according  to  well-settled  principles,  must  show  on  its  face 
jurisdiction. 

In  Thatcher  vs.  Powell,  6  Wheaton,  119,  the  court,  by  Marshall,  C. 
J.,  say : 

In  summary  proceedings,  when  a  court  exercises  an  extraordinary  power  under 
a  special  statute  prescribing  its  course,  we  think  that  course  ought  to  be  exactly 
observed,  and  those  facts  especially  which  give  jurisdiction  ought  to  appear  in 
order  to  show  that  its  proceedings  are  quoram  judice.  Without  this  act  of  assembly 
the  order  for  sale  would  have  been  totally  void.  This  act  gives  the  power  only  on 
a  report  to  be  made  by  the  sheriff.  This  report  gives  the  court  jurisdiction,  and 
without  it  the  court  is  as  powerless  as  if  the  act  had  never  passed.  (Walker  vs. 
Turner,  9  Wheat.,  54]  ;  Atkins  vs.  Brewer,  3  Cowen,  306  ;  2  Lord  Raymond,  1144.) 

I  have  endeavored  to  show  that  this  board  of  returning  officers  had 
no  right  to  act  because  it  did  not  consist  of  the  statutory  number  and 
because  they  refused  to  fill  the  vacancy  in  it  from  fraud  ;  that  if  em 
powered  to  act  they  had  no  jurisdiction  to  throw  out  parishes,  and 
that  their  action  was  a  mere  usurpation.  In  addition  to  all  this,  it  is 
proposed  to  prove  that  this  board  was  corrupt,  that  its  action  was 
f  i  audulei  t,  that  they  proceeded  upon  forged  papers  and  affidavits 
knowing  them  to  be  forged,  that  they  encouraged  and  promoted  per 
jury  and  forgery  in  their  criminal  attempt  torobthe  State  of  her  true 
electoral  vote,  that  they  offered  to  sell  their  services  to  one  of  tho 
political  parties  contending  for  the  vote.  That  this  fraudulent  and 
most  wicked  conduct  of  the  returning  officers  reflects  a  flood  of  light 
on  their  refusal  to  fill  the  vacancy  in  the  board  Avith  a  political  op 
ponent,  who  would  have  exposed  and  denounced  their  conduct  on  the 
spot  and  prevented  the  consummation  of  their  hellish  purpose.  It 
also  reflects  light  on  their  assumption  of  jurisdiction  to  throw  out 
parishes  when  by  the  law  under  which  they  were  acting  they  had  no 
such  jurisdiction. 

Taken  altogether  the  offer  of  proof  shows  that  there  was  a  dam 
nable  conspiracy  to  cheat  the  people  of  this  State  out  of  their  vote  and 
to  elect  a  President  against  the  wishes  of  the  people  by  the  most  dis 
reputable  and  fraudulent  means.  This,  too,  in  a  State  where  the 
whole  election  machinery  was  in  the  hands  of  republicans,  and 
not  the  remotest  chance  given  to  their  opponents  to  use  unfair  means 
to  carry  the  State  if  they  had  been  disposed  to  use  them.  Now,  how 
shall  we  discharge  our  duty  under  this  bill  if  we  shut  our  eyes  to 
thesemonstrous  acts  of  fraud,  perjury,  and  forgery,  by  which  the  votes 
of  this  State  have  been  certified  for  Hayes  ?  Can  we  say  tho  Hayes 
votes  are  the  true  votes  of  tho  State  and  such  as  are  provided  for  by 
theCoustiturioninthefaceof  these  facts  offered  to  be  proved?  Heaven 
forbid  that  this  Commission  shall  by  its  action  legalize  and  confirm 
these  outrageous  acts,  and  make  fraud  respectable  and  potent  in 
shaping  the  political  destinies  of  the  American  people. 

Under  pretense  that  wo  cannot  interfere  with  State  action,  for  God's 
sake  do  not  let  us  inflict  this  grievous  wrong  on  the  already  down 
trodden  people  of  that  State.  Let  us  not  by  our  action  make  these 
despicable  and  corrupt  returning  officers  a  power  in  the  land,  and  give 


to  returning  boards  in  future  elections,  instead  of  to  tho  people,  the 
power  to  elect  a  President. 

This  is  a  question  that  does  not  concern  the  people  of  Louisiana 
alone.  It  affects  the  political  destiny  of  tho  whole  American  people. 
Thirty-seven  States  besides  Louisiana  are  looking  to  our  action  and 
are  interested  in  our  decision.  If  a  corrupt  returning  board  can  cheat 
that  State  of  her  vote,  the  same  fate  may  await  any  other  State  in 
this  Union. 

But  they  also  offer  to  prove  that  two  of  the  pretended  electors  who 
cast  their  votes  for  Hayes,  to  wit,  A.  B.  Levissee  and  O.  H.  Brewster, 
were  holding  offices  of  trust  and  profit  under  the  United  States  when 
they  were  appointed.  They  did  not  attend  the  meeting  at  first,  and 
were  elected  by  the  others  to  fill  the  vacancy.  I  will  not  repeat  here 
the  remarks  I  made  on  this  subject  in  the  Florida  case.  They  com 
mend  themselves  to  my  judgment  the  more  I  reflect  on  them.  I  will 
only  add  a  few  remarks  which  seem  peculiarly  applicable  to  this  case. 
It  seems  that  these  two  persons  felt  that  they  had  not  been  legally  ap 
pointed,  and  that  the  Constitution  prohibited  their  appointment. 
They  therefore  failed  to  attend,  and  the  college  proceeded  to  fill  the 
vacancies  caused  by  their  failure  to  attend.  If  I  am  right  that  tho 
only  election  law  in  force  in  Louisiana  is  tho  law  of  1872,  which  re 
pealed  all  other  acts  on  the  subject  of  election,  then  there  is  no  law 
of  that  State  which  provides  for  filling  these  vacancies  in  that  way. 
The  only  provision  on  the  subject  of  filling  vacancies  will  be  found 
in  the  tsventy-fourth  section,  as  follows: 

SEC.  24.  ~Re  it  further  enacted,  etc.,  That  all  elections  to  bo  held  in  this  State  to 
fill  any  vacancies  shall  be  conducted  and  managed,  and  returns  thereof  shall  bo 
made,  in  the  same  manner  as  is  provided  for  general  elections. 

This  is  a  provision  to  fill  vacancies  by  a  popular  election  and  con 
fers  no  power  on  the  board  to  fill  vacancies. 

Nor  does  any  law  of  Congress  confer  this  power.  All  the  provis 
ions  on  this  subject  will  be  found  in  tho  following  sections  of  re 
vised  statutes : 

SEC.  133.  Each  State  may,  by  law,  provide  for  the  filling  of  any  vacancies  which 
may  occur  in  its  college  of  electors  when  such  college  meets  to  give  its  electoral 
vote. 

SEC.  134.  Whenever  any  State  has  held  an  election  for  the  purpose  of  choosing 
electors,  and  has  failed  to  make,  a  choice  on  the  day  prescribed  by  law,  the  electors 
may  be  appointed  on  a  subsequent  day,  in  such  a  manner  as  tho  Legislature  of  such 
State  may  direct. 

I  beg  leave  to  conclude  what  I  have  to  say  on  this  subject  by  quot 
ing  from  the  brilliant  and  able  speech  of  Hon.  Matt.  Carpenter. 

After  quoting  the  two  sections  from  re  vised  statutes  above  he  says: 

Two  cases  are  here  provided  for:  one,  the  case  of  a  vacancy  occurring  after  the 
election ;  the  other,  a  failure  to  make  .in  election.  Waiving  at  present  the  question 
whether  as  between  two  candidates,  the  one  receiving  the  greater  number  of  votes 
being  ineligible,  his  opponent  is  elected,  in  virtue  of  a  smaller  number  of  legal 
votes,  and  assuming  that,  he  is  not,  then  it  is  unquestionable  that  the  election  is 
void. 

In  the  case  of  the  contested  seat  in  the  Senate  between  Vance  vs.  Abbott  from 
North  Carolina,  there  was  a  very  full  discussion  upon  this  subject.  Vance,  who 
received  tho  largest  number  of  votes,  -was  ineligible  under  tho  fourteenth  amend 
ment  to  the  Constitution,  and  Abbott,  who  received  the  next  highest  number  of 
votes  and  was  eligible,  claimed  the  seat.  Tho  Senate  decided  that  Abbott  was  uofc 
entitled  to  the  seat,  and,  of  course,  that  the  State  had  failed  to  make  an  election  of 
Senator. 

Tho  Constitution  of  the  United  States,  articles,  section  1,  authorizes  each  State 
to  appoint  an  elector,  but  provides  that  110  person  holding  an  office  of  trust  or  profit 
under  the  United  States  shall  be  appointee!. 


unconstitutional  and  void.  And  hence  it  follows  that  the  State  appointed  but  sis 
electors;  in  other  words,  they  failed  to  elect  the  full  number  to  which  the  State 
was  entitled.  This  is  the  case  provided  for  by  the  last  section  quoted  from  the  Ke- 
vised  Statutes  of  Congress,  which  deciare*  that  the  State  may  by  law  provide  for 
subsequent  appointment.  If  tho  act  of  1868  was  not  in  force,  the  only  provision 
in  relation  to  filling  nuch  a  vacancy  was  by  a  subsequent  popular  election  (Elec 
tion  law  of  1874,  section  24. '  If  the  act  of  1808  was  in  force,  it  only  provided  for 
filling  a  vacancy  occurring  after  the  officer  had  been  elected.  So  then  whether 
the  act  of  1868  was  or  was  not  in  force,  there  was  no  law  of  the  State  which  author 
ized  the  appointment  in  place  of  Levissee  and  Brewster,  as  to  whom  there  had  been 
a  failure  to  elect. 

And  therefore,  in  any  event,  two  of  the  votes  given  by  the  Hayes  electors  must 
be  rejected. 

Th'e  case  of  the  United  States  vs.  The  Armisted,  15  Peters,  518,  is  instructive  on 
this  point.  The  court  say  it  is  argued  "  that  tho  ship  and  cargo  and  negroes  worn 
duly  documented  as  belonging  to  Spanish  subjects,  and  this  court  has  no  right  to 
look  behind  these  documents ;  that  full  faith  and  credit  is  to  bo  given  to  them,  and 
that  they  are  to  be  held  conclusive  evidence  in  this  cause,  even  although  it  .should 
be  established  by  the  most  satisfactory  proofs  that  they  have  been  obtained  by  tho 
grossest  frauds  and  impositions  upon  tho  constituted  authorities  of  Spain."  To 
this  argument  we  can  in  no  wise  assent.  There  is  nothing  in  the  treaty  which  jus 
tifies  or  sustains  the  argument.  We  do  not  here  meddle  with  the  point  whether 
there  has  been  any  connivance  in  this  illegal  traffic  on  the  part  of  any  of  the  colo 
nial  authorities  or  subordinate  officers  of  Cuba;  because,  in  our  view,  such  an  ex 
amination  is  unnecessary,  and  ought  not  to  be  pursued,  unless  it  were  indispensa 
ble  to  public  justice,  although  it  has  been  strongly  pressed  at  the  bar.  What  we 
proceed  upon  is  this  :  that  although  public  documents  of  the  Government  accom 
pany  property  found  on  loard  of  the  private  ships  of  a  foreign  nation  certainly 
are  to  be  deemed  primafac  e  evidence  of  the  facts  which  they  propose  to  state,  yet 
they  are  always  open  to  be  impugned  for  fraud  ;  and  whether  that  fraud  be  in  tho 
original  obtaining  of  these  documents,  or  in  the  subsequent  fraudulent  and  illegal 
use  of  them,  when  once  it  is  .satisfactorily  established,  it  overthrows  all  their  sanc 
tity  and  destroys  them  as  proof.  Fraud  will  vitiateany,  even  the  most  solemn,  trans- 
actions;  and  an  asserted  title  to  property  founded  upon  it  ig  utterly  raid.  The  very 
language  of  the  ninth  article  of  the  treaty  of  1795  requires  the  proprietor  to  make 
due  and  sufficient  proof  of  his  propel  ry. 

"And  how  can  that  proof  be  deemed  either  due  or  sufficient,  which  is  but  a  con 
nected  and  stained  tissue  of  fraud  ?  This  is  not  a  more  rule  of  municipal  jurispru 
dence.  Nothing  is  more  clear  in  the  law  of  nations  as  an  established  rule  to  reg 
ulate  their  rights  and  duties  and  intercourse  than  tho  doctrine  that  the  ship's  pa- 


230 


ELECTORAL   COMMISSION. 


persare  "but  prim  a  fade  evidence,  and  that  if  they  are  shown  to  bo  fraudulent 
they  are  not  to  bo  hold  proof  of  any  valid  title.  This  rule  is  familiarly  applied, 
and"  indeed  is  of  overy-uay  occurrence  in  cases  of  prize,  in  tho  contests  between 
belligerents  and  centre-IB,  as  is  apparent  from  numerous  eases  1o  bo  found  in  the 
reports  of  thia  court ;  and  it  isjust  as  applicable  to  the  transactions  of  civil  inter 
course  between  nations  iu  times  of  peace.  If  a,  private  ship  clothed  with  Spanish 
papers  should  enter  the  ports  of  the  United  States  claiming  the  privileges,  and  im- 
taunitles.  and  rights  belonging  to  bonajidc  subjects  of  Spain,  under  our  treaties  or 
lawn,  and  she  shouul  in  reality  belong  to  the  subjects  of  another  nation,  which  was 
not  entitled  to  any  such  privileges,  ii'iunnuitios,  or  rights,  and  the  proprietors  were 
seeking  by  fraud  to  cover  their  own  illegal  acts  under  the  flag  of  Spain,  there  can 
be  no  doubt  that  it  would  be  the  duty  of  our  cmirts  to  strip  off  the  disguise  and  to  look 
at  the  ca.se  aceordiag  to  its  naked  realities.  In  the  solemn  treaties  between  nations  it 
can  never  be  presumed  that  either  State  intends  to  provide  the  in  cans  of  perpetrating  or 
protecting  frauds,  but  all  the  provisions  are  to  bo  construed  as  intended  to  bo  ap 
plied  to  bonajidc  transactions. ' 


OKEGON. 

Mr.  Commissioner  HUNTON  said : 

Mr.  PRESIDENT:  The  Commission  has  decided  tbo  eases  of  Florida 
auil  Louisiana.  Tho  votes  of  those  States  have  been  given  for  Hayes 
under  the  decision  of  this  Commission  swom  to  decide  what  persons 
were  duly  appointed  electors.  This  requirement  of  the  law  and  this 
obligation  of  the  oath  have  been  met  by  a  decision  that  this  Com 
mission  could  not  go  behind  the  governor's  certificates,  based  on  the 
certificates  of  returning  boards,  although  trio  proof  was  offered  that 
these  certificates  were,  in  Florida,  in  violation  of  the  law  of  the  State ; 
that  the  three  departments  of  that  State  government  had  declared 
in  solemn  form  that  these  certificates  were  illegal  and  void;  that 
the  people  of  the  State  of  Florida  in  the  mode  prescribed  by  the  Legis 
lature  had  by  a  decided  majority  appointed  Tilden  electors. 

In  Louisiana  the  votes  of  that  State  have  been  given  to  Hayes  on 
the  same  ground  of  conclusive  effect  of  governor's  certificate  based 
on  certificate  of  returning  board,  notwithstanding  the  evidence  was 
at  hand  and  ottered  ihat  these  certificates  were  the  result  of  a  most 
fraudulent  conspiracy  to  count  the  vote  for  Hayes;  that  counsel  was 
ready  to  prove  that  these  certificates  were  procured  by  perjury  and 
forgery;  that  the  returning  board  illegally  discarded  many  thousand 
votes  cast  for  the  Tildeu  electors,  without  even  the  color  of  authority ; 
that  the  board  offered  to  sell  the  return  of  the  State  to  one  of  the 
political  parties;  that  the  State  had,  by  about  eight  thousand  ma 
jority,  appointed  Tilden  electors  in  the  mode  prescribed  by  her  Legis 
lature. 

Notwithstanding  all  this  a  majority  of  this  Commission  shut  their 
eyes  to  these  monstrous  facts  and  decided  that  they  must  count  ac 
cording  to  certificates  and  that  they,  representing  the  powers  of  the 
two  Houses  of  Congress,  were  yet  powerless  to  examine  into  and  cor 
rect  these  gross  wrongs,  in  deciding  what  persons  are  duly  appointed 
electors  in  such  States.  These  decisions  must  shock  the  minds  of  the 
legal  profession  and  paralyze  the  love  of  the  American  citizens  for 
their  institutions  when  these  acts  of  fraud,  forgery,  and  perjury  can 
be  committed  with  impunity.  Tho  Constitution  violated  and  the 
guardians  of  the  people's  rights  declared  impotent  to  defend  and  cor 
rect  ! 

In  this  case  of  Oregon  the  technic  al  advantages  seem  to  be  on  the 
Tilden  side  of  tho  case,  and  I  am  curious  to  see  whether  they  are  as 
potential  iu  that  direction  as  the  other.  It  seems  that  a  majority  of 
votes  were  cast  for  Odell,  Watts,  and  Cartwright  on  7th  November, 
1876.  One  of  these,  Mr.  Watts,  was  on  tho  day  of  election  a  postmas 
ter,  and  tho  governor,  acting  under  the  best  legal  counsel,  decided 
that  Watts  was  not,  and  that  Crouiu ,  tho  next  highest,  was,  appointed, 
and  gave  tbo  certificate  required  l»y  law  to  Odell,  Cartwright,  and 
Croniu,  tho  last  having  possession  c-i:  them. 

On  December  C,  according  to  the  offer  of  proof,  Cronin  proposed  to 
act  with  Odell  and  Cartwright  in  formation  of  electoral  college.  They 
refused.  Ho  then  proceeded  to  act  alone ;  filled  the  vacancies  by  the 
appointment  of  Miller  and  Parker,  and  cast  two  votes  for  Hayes  and 
one  for  Tilden.  Odell  and  Cartwrght  proceeded  by  themselves  to 
fill  the  vacancy  caused  by  resignation  of  Watts  by  the  elect  ion  of 
Watts,  and  cast  the  three  votes  for  Hayes. 

Which  are  the  constitutional  votes  and  who  are  the  duly  appointed 
electors  of  Oregon?  If  the  strict  technical  rule  applied  to  Florida 
audLouisiana  be  applied  to  Oregon,  then  the  vote  of  the  Cronin  college 
must  be  recognized  as  the  constitutional  vote  of  Oregon.  By  the 
election  law,  it  is  provided  : 

SEC.  37.  The  county  clerk,  immediately  after  making  the  abstract  of  the  votes 
given  iu  his  county,  jhall  make  a  copy  of  e  ieh  of  said  abstracts,  and  transmit  it  by 
mail  to  tho  secretary  of  state  to  tho  seat  or.  government;  and  it  shall  be  the  ditty  of 
the  secretary  of  state,  in  the  presence  of  the  go  -irnor,  to  proceed  icitl.in.  thirty  days  after 
the  flection,  and  sooner,  if  the  returns  be  all  received,  to  canvaxx  the  votes  given  for  secre 
tary  and  tre.agv.nr  of  ttate,  State  printer,  just  ices  of  the  supreme  court,  member  of  Con 
gress,  and  district  attorneys ;  and  the  yovcntor  shall  grant  a  cert, jia;it>' of  election  to  the 
person  having  the  hignest  number  of  votes,  an  I  shaila.so  issue  a  proclamation  declaring 
the  election  of  such  person.  In  case  there  f  hall  bo  no  choice,  by  reason  of  any  two 
or  more  persons  having  an  equal  and  the  hi  zhest  number  of  votes  for  eituerof  such 
offices,  the  governor  shall  by  proclamation  order  a  new  election  to  fill  said  olh'ces. 

SKC.  CO.  Tho  votes  for  the  electors  shall  be  given,  received,  returned,  and  can 
vassed  as  tho  same  ure  given,  returned,  and  canvassed  for  members  of  Congress. 
The  secretary  of  state .  thall  prepare  two  lists  of  the.  nnm  es  of  the  electors  elected,  and  affix 
the  seal  of  the,  state  to  the  same.  Such  lists  shall  be  signed  by  the  governor  and  sec 
retary,  and  by  tho  litter  delivered  to  tho  college  of  electors  at  tho  hour  of  their 
meeting  on  such  first  Wednesday  of  December. 

These  provisions  make  the  governor  and  secretary  of  state  tho  re- 
tnrning  board  of  Oregon,  and  the  cerlificatesheld  by  Odell,  Cartwright, 
and  Croniu  wTill  be  found  on  examination  to  comply  strictly  with  the 


above  provisions  of  law.  The  secretary  of  state  in  presence  of  the 
governor  did  canvass  the  votes  according  to  section  37.  He  did  pre 
pare  two  lists  of  the  persons  elected  and  affixed  tho  seal  of  the  State 
to  the  same,  and  the  governor  arid  secretary  did  sign  the  same  as  re 
quired  by  section  GO,  and  all  of  this  will  be  found  in  the  governor's 
certificate  attested  by  the  secretary  of  state,  which  accompanies  the 
Cronin  certificate,  No.  2. 

It  seems  to  mo  therefore  that  the  votes  in  the  Cronin  certificate  ac 
cording  to  the  ruling  of  the  majority  in  Florida  and  Louisiana  are 
the  constitutional  votes  of  Oregon.  If  the  ruling  in  Florida  and  Lou 
isiana  was  right,  I  demand  at  the  hands  of  the  majority  of  this  Com 
mission  a  similar  ruling  in  this  Oregon  case.  But,  sir,  I  do  not  be 
lieve  that  ruling  was  right.  I  am  more  convinced  it  is  wrong  tho 
more  I  think  of  and  study  it.  I  do  not  believe  it  is  right  to  smother 
tho  voice  of  a  State  in  a  presidential  election  on  such  technical  quib 
bles.  I  do  not  believe  we  are  discharging  our  duty  to  tho  country 
and  to  the  law  creating  this  Commission  in  refusing  to  hear  evidence 
to  determine  the-  constitutional  and  duly  appointed  electors  of  a 
State.  I  believe  that  the  State  of  Oregon  by  a  decided,  though  not 
large  majority,  voted  for  Hayes,  and  I  am  not  willing  to  have  any 
part  of  her  vote  cast  for  Tildeu.  I  shall  not,  therefore,  maintain  that 
the  vote  cast  by  the  Crouiu  college  is  the  constitutional  vote  of  Or 
egon. 

In  taking  this  position  I  do  not  mean  to  reflect  on  the  conduct  of 
tbo  governor  in  giving  a  certificate  of  election  to  Croniu  instead  of 
Watts,  who  by  concession  was  a  Federal  officer  on  the  day  of  electiou. 

I  think  the  governor  was  bound  by  his  oath  to  refuse  a  certificate 
to  Watts.  Tha  votes  cast  for  him  were  absolute  nullities,  and  ac 
cording  to  many  of  the  best  considered  authorities  these  votes  for 
Watts  were  thrown  away — considered  as  not  given  to  anybody — and 
Crouiu,  the  next  highest  candidate  or  the  highest  eligible  candidate, 
was  duly  elected. 

While  I  feel  it  would  not  be  proper  to  give  ono  vote  iu  Oregon  to 
Tilden,  the  oath  I  have  taken  as  a  member  of  this  Commission  will 
prevent  me  from  giving  more  than  two  of  the  three  votes  to  Hayes. 

Watts  was  by  concession  a  Federal  officer  on  the  day  of  election 
and  was  ineligible,  could  not  bo  appointed.  See  authorities  cited  in 
Florida  case.  Watts,  Odell,  and  Cartwright  all  seemed  to  have  felt 
aud  acknowledged  this  iueligibility  by  his  resignation  and  its  accept 
ance.  Tho  other  two  at  once  proceeded  to  fill  the  vacancy  by  the 
electiou  or  appointment  of  this  same  Watts.  Now  was  there  a  vacancy? 
I  will  not  repeat  the  argument  made  or  attempted  in  the  Florida  case 
but  content  myself  with  referring  to  it  and  to  some  of  the  author!!  ies, 
most  of  which  are  familiar  to  the  members  of  this  Commission. 
Clark  vs.  Hall,  671.  Story  on  the  Constitution,  sec.  1559.  Sergeant's 
Const.  Law,  (2d  ed.,)  373.  Scheuck  vs.  Peay,  1  Dillon,  267.  State rs. 
Benedict,  15  Minn.,  199.  Battle  vs.  Mclver,  08  N.  C.,  469.  Strattou 
rs.  Oulton,  28  Cal.,  51.  People  rs.  Strattou,  28  Cal.,  382.  People  rs. 
Parker,  37  Cal.,  639.  Dodd  Ex  pnrte,  6  Eng.,  (Ark.)  152.  State  rs. 
Jenkins,  43  Mo.,  261. 

These  authorities  establish  to  rny  mind  there  was  no  vacancy  but  a 
failure  to  elect  if  Crouin  was  not  elected.  These  authorities  are 
greatly  strengthened  by  the  statutory  definition  of  a  vacancy  in  Ore- 
goo. 

The  laws  of  Oregon  bearing  on  this  subject  are  as  follows : 

TITLE  VI— ON  VACANCIES. 

SEC.  43.  Every  office  shall  become  vacant  on  the  occurring  of  either  of  tho  follow" 
ing  events  before  the  expiration  of  the  term  of  such  ollice : 

1.  The  death  of  the  incumbent ; 

2.  His  resignation ; 

3.  His  removal ; 

4.  His  ceasing  to  bo  an  inhabitant  of  the  district,  county,  town,  or  village  for 
which  he  shall  have  been  elected  or  appointed  or  within  which  tho  duties  of  his 
office  are  required  to  be  discharged  ; 

5.  His  conviction  of  any  infamous  crime,  or  of  any  offense  involving  a  violation 
of  his  oath ; 

C.  His  refusal  or  neglect  to  take  his  oath  of  office,  or  to  give  or  renew  his  official 
bond,  or  to  deposit  such  o;:th  or  bond  within  tho  time  prescribed  by  law  ; 

",.  The  decision  of  a  competent  tribunal,  declaring  void  his  election  or  appoint 
ment. 

t'.EC.  49.  Tho  governor  shall  also  declare  vacant  the  office  of  every  officer  required 
by  law  to  execute  an  official  bond,  whenever  a  judgment  shall  be  obtained  against 
such  officer  for  a  breach  of  the  conditions  of  such  bond. 

TITLE  IX. — OP  THE  ELECTION  OF  PRESIDENTIAL  ELKCTOR8. 

SEC.  58.  On  tho  Tuesday  next  after  the  first  Monday  in  ^November,  1864,  and 
every  four  years  thereafter,  there  shall  be  elected  by  tho  qualified  electors  of  this 
State  as  many  electors  of  President  and  Vico-President  as  this  State  may  be  enti- 
tlc-.l  to  elect  of  Senators  and  representatives  in  Congress. 

SEC.  59.  The  electors  of  President  and  Vice-President  shall  convene  at  the  seat 
of  government,  on  the  first  Wednesday  of  December  Betel  after  their  election,  at 
tho  hour  of  twelve  of  the  clock  at  noon  of  tbat  day,  and  if  there  shall  bo  any  va 
cancy  in  tho  office  of  an  elector,  occasioned  by  death,  refusal  to  act,  neglect  to  at 
tend]  or  otherwise,  the  electors  present  shall  immediately  proceed  to  fill,  by  i:ira 
voce  and  pimality  of  votes,  such  vacancy  in  the  electoral  college,  and  when  all  tho 
electors  shall  appear,  or  the  vacancies,  if  any,  shall  have  been  filled  as  above  pro 
vided,  such  electors  shall  proceed  to  perform  tho  duties  required  of  them  by  the 
Constitution  and  laws  of  tho  United  States. 

In  all  cases  of  vacancy  under  this  law  there  must  first  have  been 
a  legal  and  eligible  incumbent ;  aud  no  vacancy  can  exist,  then,  in 
an  office  unless  the  office  has  first  been  duly  filled. 

So  also  the  authority  given  to  the  electors  to  fill  vacancies  by  fifty- 
ninth  section  looks  merely  to  a  vacancy  caused  by  death,  refusal  to 
act,  neglect  to  attend,  or  otherwise,  that  is,  by  any  other  like  cause. 

I  am  constrained  to  believe  that  Odell  and  Cartwright  had  no  au- 


ELECTORAL  COMMISSION. 


231 


thority  to  elect  Watts  or  any  other  person  as  an  elector,  and  conse 
quently  that  Watts  had  uo  right  to  cast  his  vote  for  President. 


SOUTH   CAROLINA. 

Mr.  Commissioner  HTJNTON  said : 

Mr.  PRESIDENT:  We  have  now  reached  the  last  case  to  bo  submit 
ted  to  this  Commission.  That  it  has  disappointed  public  expectation 
in  its  decisions,  I  need  not  declare.  By  a  vote  of  eight  to  seven  this 
Commission  has  decided  on  purely  technical  grounds  that  Florida  and 
Louisiana  voted  for  Hayes,  and  by  the  same  vote  of  the  same  mem 
bers  have,  as  I  think,  discarded  these  same  technical  grounds  to  give 
the  one  disputed  vote  of  Oregon  to  Hayes.  I  say  this  Commission 
has  disappointed  public  expectation,  because  the  country  expected  of 
it  that  it  would  decide  who  had  been  elected  President  and  Vice- 
President  by  the  people.  They  did  not  expect  of  us  that  wo  would 
merely  confirm  the  judgment  of  corrupt  and  illegal  returning  boards, 
who  were  ready  to  put  the  Presideucy  up  to  the  highest  bidder  in 
the  public  market. 

But  our  action  in  the  three  cases  has  become  a  part  of  the  history 
of  the  country,  and  we  must  stand  or  fall  by  the  judgment  of  the 
forty-five  millions  of  people  who  have  been  anxious,  interested,  and 
discontented  witnesses  of  our  conduct. 

In  the  case  of  South  Carolina  different  facts  are  presented  from 
any  heretofore  offered.  We  have  heretofore  been  called  on  to  protect 
States  from  corrupt  returning  boards  who  have  stifled  the  voice,  of 
the  people  on  election  day  and  to  protect  the  Constitution  of  t  he  United 
States  from  infraction  by  the  attempt  to  appoint  persons  electors  when 
the  States  are  expressly  inhibited  by  the  Constitution  from  making 
such  appointments. 

The  South  Carolina  case  will  be  better  understood  by  reference  to 
the  offer  of  proof,  as  follows: 

In  support  of  the  objections  to  certificate  Xo.  1,  it  is  proposed  to  prove  by  compe 
tent  evidence  the  following  facts,  which  said  facts  are  offered  separately  and  as  a 
whole: 

First.  That  by  reason  of  the  failure  and  refusal  of  the  Legislature  of  South  Caro 
lina  to  provide  for  a  registration  of  electors,  as  required  by  article  8,  seel  ion  3,  of 
the  constitution  of  said  State,  and  by  reason  of  the  acts  passed  by  said  Legislature 
in  violation  of  the  spirit  of  such  constitutional  provision,  great  frauds  it  ere  perpe 
trated  by  colored  republican  voters;  that  at  least  3,OUO  illegal  votes  were  cast  for 
the  Hayes  electors,  which  said  votes  being  excluded  would  give  a  large  majority 
to  the  Tildcn  electors. 

Second.  Thatimniediatelyaftertheadjournmentof  Congress,  to  wit,  in  the  month 
of  August,  A.  D.  187G,  a  large  uumberof  United  States  soldiers,  under  command  of 
General  Kuser,  were  sent  by  the  President  into  said  State;  that  on  October  16,  Gen 
eral  linger  telegraphed  to 'the  authorities  at  Washington  that  all  was  quiet,  that 
there  was  no  need  for  further  troops;  that  if  he  (Iluger)  deemed  a  further  force 
necessary  ho  would  call  for  the  same ;  that  he  never  did  call  for  more  troops,  but 
that  ou  October  17  the  President  issued  a  proclamation  declaring  that  the  people  of 
said  State  were  in  acondition  of  insurrection,  and  that  immediately  thereafter  largo 
numbers  of  United  States  soldiers  were  sent  into  said  State ;  that  at  no  time  prior 
to  the  last-mentioned  date  was  there  a  condition  of  violence  or  insurrection  which 
the  authorii  ies  of  the  State  were  unable  to  control ;  that  at  no  time  during  the  year 
1876  did  such  a  state  of  affairs  exist  in  South  Carolina  as  justified  the  intervention 
of  the  Federal  Government. 

Third.  That  the  troops  were  sent  into  said  State  without  any  action  of  the  Legis 
lature  thereof,  although  the  same  could  have  been  readily  convened. 

Fourth.  That  the  troops  were  sent  into  said  State,  not  for  the  purpose  of  quell 
ing  insurrection  and  preserving  peace  and  good  order,  but  for  the  purpose  and  with 
the  design  of  overawing  the  voters  of  said  State  ;  that  said  troop:)  were  stationed 
at  and  near  the  polls  on  election  day,  and  that  their  presence  before  and  on  the  day 
of  tho  election  did  obstruct  and  interfere  with  an  expression  of  the  popular  will  anil 
prevent  a  free  election. 

Fifth.  That  tho  presence  of  said  troops  served  to  embolden  tho  more  desperate 
of  the  negroes.  Being  assured  by  their  party  leaders  that  said  troops  were  there 
for  the  purpose  of  protecting  them  in  any  act  of  violence,  the  blacks  throughout 
the  counties  of  Beaufort  and  Charleston  inaugurated  a  condition  of  riot  and  lawless 
ness;  that  public  officials  incited  them  to  the  commission  of  every  character  of 
crime;  that  murder  was  committed,  and  the  perpetrators  allowed  to  escape  punish 
ment;  that  justices  refused  to  issue  warrants  for  the  arrest  of  criminals  charged 
even  with  tho  crime  of  murder,  and  sheriffs  refused  to  execute  such  warrants  if  is 
sued  ;  that  tho  police  force  of  the  city  of  Charleston,  composed  almost  entirely  of 
republican  negroes,  employed  its  time  in  shooting  down  upon  the  public  streets 
quiet  and  inoffensive  white  men,  members  of  said  force  being  iii  many  instances 
leaders  in  the  riots  which  occurred. 

That  upon  election  day  tho  negroes  assembled  at  the  polls  armed  with  rifles,  shot 
guns,  and  other  weapons,  and  prevented  negroes  who  desired  so  to  do  from  voting 
the  democratic  ticket.  That  the  State  militia,  composed  of  the  worst  element  of 
the  negro  population,  and  supplied  with  State  arms,  was  also  at  tho  polls  aiding  and 
abetting  in  the  violation  of  law  and  in  the  intimidation  of  voters.  That  the  sheriff 
of  Charleston  County,  one  of  tho  republican  electors,  without  warrant  or  author 
ity  of  law,  appointed  hundreds  of  so-called  "deputy  sheriffs,"  all  negroes  and  re 
publicans,  investing  them  with  the  power  to  makearrests  at  their  pleasure.  That 
these  deputy  sheriffs  swarmed  about  tho  various  polls  on  election  day,  and  by  their 
threats  and  violence  did  hinder  and  prevent  many  citizens  from  voting,  and  did 
arrest  and  imprison,  without  information  or  warrant,  many  of  those  who  attempted 
to  vote  tho  democratic  ticket.  That  persons  styled  "  United  States  deputy  mar 
shals  "  were  also  stationed  at  tho  polls  aiding  and  assisting  said  "  deputy  sheriffs." 
That  throughout  the  State  the  negroes  believed  that  the  United  States  soldiers  had 
been  sent  to  shoot  them  if  they  did  not  vote  the  republican  ticket. 

Sixth.  That  such  violence  and  lawlessness  existed  throughout  the  counties  of 
Charleston  and  Beaufort  shortly  before  and  on  tho  day  of  tho  election,  which  said 
lawlessness  was  primarily  attributable  to  tho  occupation  of  said  State  by  United 
States  soldiers ;  that  no  free  election  could  be  or  was  held  in  said  counties,  but  t  hat, 
upon  tho  contrary,  the  popular  will  found  no  expression  at  tho  polls ;  that  by  reason 
of  the  lawlessness  which  existed  in  tho  county  of  Charleston  alone  the  republican 
electors  secured  a  majority  of  about  7,000  votes. 

The  well-understood  rule  must  be  applied.  In  passing  upon  the 
admissibility  of  evidence  wo  must  assume  that  all  that  is  offered  to 
be  proved  can  be  proved. 

Applying  this  rule,  I  'isk,  What  was  the  condition  of  South  Carolina 
on  the  day  of  elect  ion  and  for  several  weeks  preceding  I 


There  was  no  condition  of  violence  or  insurrection  which  the  State 
authorities  were  unable  to  control.  There  was  nothing  to  justify  tho 
intervention  of  the  Federal  Government  in  the  affairs  of  South  Caro 
lina.  On  the  IGth  October  General  Ruger,  commanding  the  Federal 
troops  in  that  State,  reported  all  quiet  and  there  was  no  need  for  fur 
ther  troops. 

That,  notwithstanding,  on  the  very  next  day  the  President,  without 
authority,  declared  by  proclamation  that  the  people  of  the  State  were 
in  a  condition  of  insurrection  and  forced  Federal  troops  into  that 
State. 

That  these  troops  were  sent  into  the  State  not  for  tho  purpose,  as 
avowed,  of  preserving  the  peace  and  quelling  insurrection,  but  to  over 
awe  the  voters.  The  troops  were  stationed  near  the  polls  on  the  day 
of  election  and  did  obstruct  the  free  expression  of  the  popular  will. 

That  the  presence  of  troops  emboldened  the  desperate  colored  men, 
who,  incited  to  deeds  of  violence  by  party  leaders,  committed  all  sorts 
of  acts  of  intimidation  on  colored  men  who  wished  to  vote  the  demo 
cratic  ticket. 

That  the  police  force  of  Charleston,  composed  mainly  of  republican 
negroes,  shot  down  on  tho  public  streets  quiet  white  men. 

That  scenes  of  violence  and  bloodshed  occurred  at  many  of  the 
polls. 

That  all  this  and  much  more  was  done  by  tho  public  authorities 
and  protected  by  the  troops  of  tho  Federal  Government  with  tho  de 
sign  to  deter  men,  and  especially  colored  men,  from  voting  tho  demo 
cratic  ticket. 

If  the  half  of  this  is  true  and  can  bo  proved  as  they  offer  to  do,  can 
it  be  said  there  was  a  free  election  in  that  State!  Can  it  be  said  that 
the  ap-  areut  small  majority  for  Hayes  expressed  the  true  voice  of  tho 
State  of  South  Carolina? 

Can  the  electors  thus  chosen  bo  said  by  us  to  be  duly  appointed? 
Can  we  say  their  votes  are  the  votes  provided  for  by  tho  Constitu 
tion? 

It  is  very  certain,  if  this  state  of  affairs  existed  in  South  Carolina 
on  and  before  tho  day  of  election,  the  Hayes  electors  were  chosen  by 
force  brought  to  bear  by  tbe  Federal  Government  for  the  purpose  of 
compelling  the  result;  that  a  state  of  anarchy  and  lawlessness  pre 
vailed  which  absolutely  prevented,  as  it  was  designed  to  do,  a  free 
and  fair  expression  of  the  political  preferences  of  the  voters  of  tho 
State  ;  that  this  condition  of  affairs  in  that  unhappy  State  was  delib 
erately  planned  and  persistently  and  wickedly  carried  out  to  coerce 
tbe  voters  of  that  State  for  Hayes. 

Weshould  be  most  culpable,  nay  criminal, if  we  allowed  this  wicked 
design  to  culminate  here  by  counting  the  vote  of  the  State  for  Hayes. 

There  was  such  a  state  of  affairs  existing  there  that  there  could 
not  be  said  there  was  on  the  day  of  election  a  republican  government 
in  the  State. 

I  am,  therefore,  for  admitting  the  evidence,  find,  if  tho  proof  comes 
up  to  the  offer,  to  decide  that  no  persons  were  duly  appointed  electors 
in  that  State,  and  that  no  votes  have  been  cast  for  President  and  Vice- 
President  which  are  the  votes  provided  by  the  Constitution  of  the 
United  States. 


Remarks  of  IWr.  Commissioner  Abbott. 

FLORIDA. 

The  Commission  having  under  consideration  the  electoral  vote  of  Florida — 

Mr.  Commissioner  ABBOTT  said  substantially: 

Mr.  PRESIDENT:  I  understand  the  Senator  from  Vermont  claimsthat 
it  is  not  within  the  power  of  this  Commission  to  take  evidence  to  con 
tradict  the  governor's  return  made  in  pursuance  of  the  act  of  Congress, 
while  the  Senator  from  Indiana  is  of  the  opinion  that  the  governor's 
return  under  the  act  of  Congress  may  be  inquired  into,  but  that  any 
return,  whether  of  the  governor  or  any  other  State  officer,  required 
by  State  laws,  is  conclusive  and  cannot  be  controlled  or  in  any  way 
contradicted,  varied,  or  explained.  I  readily  understand  tho  position 
of  the  latter  Senator;  it  is  taken  not  only  for  this  case  but  for  one  that 
may  be  before  us  in  the  future,  for  in  so  deciding  as  to  get  the  vote 
of  Florida,  it  would  not  do  to  render  it  impossible  to  count  the  vote 
of  Oregon.  I  agree  Avith  the  Senator  from  Indiana  that  the  return  of 
the  governor  under  the  act  of  Congress  may  be  controlled;  indeed, 
set  aside  and  disregarded  by  proving  it  to  be  false  in  fact.  Tho  act 
of  Congress  does  not  make  that  return  either  conclusive  or  prima 
facie  evidence,  or  even  evidence  at  all,  in  express  terms.  If  it  had 
undertaken  to  make  it  conclusive  evidence,  it  certainly  would  havo 
been  unconstitutional.  Clearly,  Congress  has  no  authority  to  pre 
scribe  what  shall  bo  conclusive  evidence  in  such  a  case,  aud,  pr<!l>- 
ably,  it  would  be  held,  had  no  right  to  impose  such  a  duty  upon  tho 
chief  executive  of  a  State. 

But  upon  tho  Senator's  second  proposition  I  by  no  means  agree 
with  him.  He  claims,  as  I  understand  him,  that  in  no  event  can  a 
return  made  under  the  laws  of  a  State  be  controlled,  inquired  into, 
varied,  or  shown  to  bo  wrong,  not  according  to  the  fact,  whether  this 
falsity  arise  from  innocent  mistakes,— a  mere  error  in  the  addition  of 
iigures,  for  example,-— or  from  fraud  and  corruption  ;  nay,  further,  if 
the  retnni  is  once  made  by  the  ol'iicers  appointed  under  the  State  la  w 
to  count  the  votes  aud  determine  the  persons  ele.-ied.  ii  cannot  bo 
shown  that  such  otlicers  have  exceeded  the  jurisdiction  given  them 


232 


ELECTORAL  COMMISSION. 


by  that  law,  have  done  what  the  law  forbid  them  to  do,  so  that,  in  fact 
their  return  is  not  ail  execution  of  the  State  law,  but  a  direct  viola 
tion  of  it. 

Under  this  claim  we  are  told  that  both  Houses  of  Congress  must 
count  the  votes  given  by  electors  from  any  State  who  are  certified  to 
bo  elected  by  State  officers,  appointed  by  the  law  of  the  State  to 
count  the  votes  and  determine  the  persons  elected,  although  it  may 
be  proven  beyond  all  question  that  the  return  is  untrue  in  lact,  either 
because  the  officers  making  it  had  made  an  innocent  mistake  in  add 
ing  up  a  column  of  figures,  or  because,  actuated  by  the  grossest  and 
most  fraudulent  of  motives  even  to  the  extent  of  having  been  paid 
so  to  do,  they  deliberately  and  willfully  made  an  utterly  false  return, 
even  certifying  persons  to  be  elected  who  never  had  been  voted  for. 

I  understand  the  claim  goes  even  further  than  this,  which  would 
seem  to  be  going  far  enough  in  all  conscience.  We  are  told  that  if 
this  return  is  once  made,  the  certificate  of  election  once  given,  there 
is  no  power  to  recall  it,  to  show  that  it  is  false  either  from  fraud 
or  mistake;  that  it  must  stand;  that  the  persons  in  whose  favor 
it  is  made  must  cast  the  vote  of  the  State  for  President ;  and  that 
snch  vores  must  be  counted  by  the  two  Houses  of  Congress,  al 
though  known  to  every  man,  woman,  and  child  in  the  land  to  be  false 
and  wrong,  and  although  it  may  have  been  declared  false  and  wrong 
by  the  parties  making  it,  by  the  highest  courts,  by  the  Legislature  and 
the  executive  of  the  State  !  Such  a  claim  is  most  extraordinary  and 
atari f ing.  It  is  abhorrent  to  the  sense  of  .justice  and  right  of  every 
fair-rninded  man  in  the  land.  Nothing  but  the  strongest,  clearest, 
and  most  incontrovertible  reasons  can  ever  compel  the  public  con 
science  and  judgment  to  assent  to  it. 

We  are  told  that  the  two  Houses  of  Congress,  for  it  is  admitted 
that,  this  Commission  has  all  their  powers  in  the  promises,  have  no 
power  to  do  anything  more  than  simply  to  perform  an  arithmetical 
operation  in  ascertaining  the  persons  voted  for  as  President ;  that 
they  are  to  count  the  votes  and  nothing  more.  I  agree  that  they  are 
to  count  the  votes;  but,  in  order  to  count  the  votes,  they  must  first 
determine  whether  there  are  any  votes  to  count,  and  whether  those 
votes  have  been  cast  by  duly  appointed  electors,  or  by  impostors. 
They  not  only  have  the  power,  but  it  is  a  duty  imposed  upon  them, 
to  inquire  into  and  to  authenticate  the  votes,  and,  where  there  are 
several  returns  claiming  to  be  votes,  to  determine  which  are  the  true 
votes,  and  which  truly  declare  the  real  will  of  the  State  according  to 
the  State  law. 

Each  a'id  every  State  has  the  greatest  interest  not  only  in  its  own 
vote  lor  President  but  in  the  vote  of  each  of  the  other  States.  No 
greater  wrong  could  be  done  to  the  people  of  all  the  other  States 
than  to  have  a  President  imposed  upon  them,  not  by  the  honest,  real 
vole  of  a  single  State,  but  by  a  fraudulent  and  wicked  misrepresenta 
tion  of  that  vote,  so  that  the  high  office  should  be  tilled  by  one 
never  elected  by  the  people  or  the  States. 

The  Constitution  meant  to  give  the  power  of  determining  the 
greatest  political  question  that  could  ever  arise,  namely,  who  should 
be  Chief  Magistrate,  to  some  persons  or  bodies  of  persons  ;  it  was  not 
intended  to  be  left  unprovided  for;  it  must  be  determined  every 
four  years,  and  it  is  absurd  to  claim  that  no  provision  was  made  by 
the  organic  law  for  so  doing.  It  is  a  question  which  does  not  de 
termine  itself,  it  must  be  done  by  human  means  ;  and  if  provision  had 
not  been  made,  the  Government  would  not  have  survived  the  first 
election,  for  it  could  never  have  been  decided  who  had  been  elected. 
Nor  is  this  determination  confined  merely  to  the  arithmetical  duty 
of  counting  what  are  claimed  to  be  votes.  Each  and  every  State,  as 
I  have  said,  has  the  same  interest  in  the  vote  of  every  other  State  as 
in  its  own;  each  State  has  the  highest  interest,  nay,  right,  that  the 
voteof  every  other  State  should  be  the  real votoof that  State  according 
to  its  law.  ami  should  not  misrepresent  its  true  voice.  Without  the 
power  some  where  to  determine  this  question,  to  decide  which  are  the 
true  votes  to  be  counted,  both  the  spirit  and  letter  of  the  Constitution 
could  be  violated  with  impunity,  and  both  the  States  and  the  people 
grossly  defrauded  and  deprived  of  the  rights  guaranteed  to  them  by 
their  organic  law.  There  was  no  meeting  together  of  all  the  electors 
from  the  different  States  provided  for,  so  that  all  could  pass  on  the 
question  who  were  entitled  to  cast  the  vote  of  each  State.  No  power 
was  given  to  the  electoral  college  of  each  State  to  pass  upon  or  de 
termine  the  election  of  its  members.  And  still  that  question  must  be 
determined  or  the  Government  could  never  have  got  itself  even 
launched.  And  to  whom  should  that  most  vital  power  be  granted 
but  to  the  two  great  legislative  bodies  to  which  are  intrusted  most  of 
the  powers  to  be  exercised  under  the  Constitutiou ;  upon  ono  of 
which  is  impos-  d  the  great  duty  of  choosing  the  President,  if  none 
has  been  chosen  by  the  States  and  Ihe  people,  and  upon  the  other 
the  like  duty  of  choosing  a  Vice-President  in  the  same  contingency. 
The  language  of  the  Constitution  is  amply  sufficient  to  impose  this 
duty  of  determining  who  has  been  elected  President  upon  the  two 
Houses  of  Congress.  If  those  two  Houses  refuse  to  perform  this 
duty,  confine  themselves  merely  to  the  arithmetic  of  the  count  in 
stead  of  discharging  their  great  obligation  to  the  people  and  to  the 
States  of  determining  what  is  the  real,  honest  vote  of  each  State  ac 
cording  to  the  law  of  that  State,  then  they  are  unworthy  of  the  great 
trust  confided  to  them.  This  trust  can  only  be  discharged  by  ascer 
taining  whether  the  vote  offered  from  each  State  is  the  vote  of  that 
State  according  to  its  law ;  nothing  more,  nothing  less  is  the  measure 
and  requirement  of  that  trust. 


Let  me  not  be  misunderstood  ;  it  is  claimed  by  the  Senator  from 
Indiana  and  those  agreeing  with  him,  that  the  doctrine  of  State  rights 
bars  the  way  to  any  inquiry  into  the  question  whether  the  persons 
from  any  State  claiming  to  cast  its  vote  are  the  true  electors,  and  com 
pels  Congress  to  confine  itself  merely  to  count  ing.  1  have  always  been 
a  true  and  faithful  disciple  of  the  greatdoctrine  of  State  rights  I  have 
always  believed  in  it,  and  always  expect  and  hope  to  remain  stead 
fast  in  my  faith.  From,  day  to  day  I  am  the  more  assured  ihat  there 
is  no  way  known  to  man  by  which  our  Government  can  be  preserved 
except  by  the  strictest  and  firmest  maintenance  of  .all  the  rights  of  the 
States.  I  yield  tonoonein  my  fidelity  to  the  doctrine  of  State  lights, 
but  I  am  not  willing  to  carry  it  to  the  extent  of  doing  in  its  name 
the  greatest  wrongs  to  States,  instead  of  upholding  their  rights. 
There  never  was  a  clearer  case  of  stealing  the  livery  of  heaven  to 
serve  the  devil  withal,  than  in  thus  attempting  to  wrest  the  doctrine 
of  State  rights  to  excuse  and  justify  this  great  wrong  to  States. 

Those  with  whom  I  agree  do  not  desire  to  interfere  in  the  slightest 
degree  with  the  smallest  right  of  a  State.  We  agree  that  each  State 
by  its  Legislature  can  prescribe  the  manner  of  the  appointment  of  its 
electors,  and  that  Congress  can  in  no  way  interfere.  We  agree,  fur 
ther,  that  Ihe  State  Legislature  may  prescribe  the  manner  of  voting 
for  the  electors,  the  method  of  counting  the  vote  and  of  ascertaining 
and  determining  who  has  been  elected,  and  Congress  cannot  interfere. 
Wo  agree  that,  if  the  law  of  the  State  has  been  followed  out  and 
complied  with  and  a  return  made  according  to  and  complying  with 
its  provisions,  Congress  must  take  ami  give  full  effect  to  such  a  re 
turn. 

Much  has  been  said  here  by  those  opposed  to  us  about  "going  bo- 
hind  the  returns,"  and  the  terrible,  consequences  of  such  an  act.  You 
would  suppose  that  if  it  was  once  established  that  so  terrible  ;i  crime- 
as  to  go  for  a  moment  "  behind  the  returns"  could  be  perpetrated, 
we  should  wander  in  the  great  wilderness  which  the  imagination  of 
our  friends  on  the  other  side  has  conjured  up  as  lying  beyond  that 
mysterious  limit  for  as  many  years  as  did  the  Israelites  in  the  deserts 
of  arid  and  burning  sands  before  they  entered  into  the  promised  laud. 
It  is  a  chimera  conjured  up  not  to  enlighten  but  rather  to  darkou 
and  mislead  counsel. 

In  no  real,  p roper,  true  sense  is  it  proposed  to  go  "  behind  the  returns." 
On  the  contrary,  it  is  only  proposed  to  go  to  the  returns,  not  behind 
them  ;  to  go  to  them,  I  say,  and  near  enough  to  them  to  ascertain 
whether  they  are  real,  true,  honest  returns  ;  whether  they  are  made 
according  to  and  in  conformity  with  the  laws  of  the  State,  or  in  con 
flict  with  and  in  violation  of  such  laws;  whether  they  are  true  and 
honest,  or  the  mere  results  and  creations  of  fraud  and  bribery  and 
corruption  on  the  part  of  those -making  them  ;  for  if  in  making  them 
the  makers  were  simply  endeavoring  to  perpetrate  a  fraud,  to  estab 
lish  a  lie,  instead  of  certifying  to  the  facts  and  the  truth,  then  they 
are  no  returns  by  any  law  ever  recognized  by  any  civilized  people 
who  ever  lived  on  the  earth. 

Is  it  not  as  clear  as  the  sun  in  the  heavens  that,  if  we  do  not  in 
quire  whether  the  returns  are  the  returns  in  truth  and  fact,  whether 
they  are  in  accordance  with  the  law  of  the  State  instead  of  in  co:  flict 
with  it,  whether  they  certify  the  truihor  a  lie,  whet  her  they  are  honest 
or  steeped  in  fraud,  we  are  not  only  doing  a  great  wrong  to  all  ihe 
other  States,  but,  a  greater  to  the  State  whoso  vote  is  the  subject  of 
inquiry,  depriving  it  indeed  of  ono  of  its  greatest  rights? 

Let  it  not  be  said,  then,  that  wo  propose  "to  go  behind  there- 
turns  "  in  the  popular  acceptation  of  the  words,  or  in  the  sense  hero 
claimed.  We  have  no  occasion  to  go  behind  them,  but  we  can  go  to 
them.  We  can  examine  whether  they  aro  returns  in  fact  and  in 
truth,  whether  they  aro  made  in  accordance  with  and  not  in  viola 
tion  of  law,  whether  the  makers  of  them  executed  the  law  under 
which  they  acted  and  certified  the  truth;  or  whether,  being  corrupt 
and  fraudulent,  they  not  only  refused  to  execute  it  and  certify  tl;o 
truth,  but  on  the  contrary  put  a  lie  in  its  place. 

Take  the  case  under  consideration.  What  is  proposed  ?  Fraud  is 
not  directly  and  in  terms  .alleged,  I  agree;  but  it  is  alleged  that  ihe 
return  is  not  made  in  accordance  with,  but  in  direct  violation  of  ihe 
law  of  the  State  of  Florida,  and  that  the  persons  making  it  exceeded 
and  went  beyond  any  jurisdiction  given  them  by  law  in  the  premises 

What  are  the  facts  offered  to  be  proved — indeed  proved  by  the 
copies  of  records  and  papers  before  us  ?  Why,  by  the  law  of  Flor 
ida  the  secretary  of  state,  the  attorney  general,  and  the  comptrolkT- 
general  aro  made  a  board  of  State  canvassers  to  canvass  the  county 
returns  and  to  determine  and  declare  who  have  been  elected.  They 
aro  to  make  a  certificate  of  such  determination,  which  is  to  be  died 
in  the  office  of  tho  secretary  of  state,  and  that  officer  is  to  send  to 
each  person  elected  a  certificate  of  his  election,  which  is  made  prinia 
facie  evidence,  nothing  more.  This  board,  if  the  return  from  anj  count;/ 
is  so  irregular  or  fraudulent  that  the  truth  cannot  be  ascertained 
from  it,  have  power  to  i eject  the  whole  return,  nothing  more.  Two 
only  of  the  canvassers  joined  in  the  certificate  of  the  Hayes  electors; 
the  third  refused  to  do  so  on  the  ground  that  the  statements  in  ihe 
certificate  were  not  true. 

It  is  offered  to  bo  proved  that  the  two  canvassers  did  not  execute 
the  law  which  gave  them  their  only  jurisdiction  to  act,  but  violated 
that  law,  exceeded  their  jurisdiction,  and  in  and  by  their  return  stated 
not  the  truth  but  a  lie.  Here  is  no  attempt  to  go  behind  the  return, 
only  to  go  to  it,  to  see  if  it  is  a  return  under  and  by  virtue  of  the  State 
law,  or  whether  it  is  in  fact  no  return.  To  show  that  it  is  no  return 


ELECTORAL   COMMISSION. 


by  which  any  one  could  bo  hound,  it  is  offered  to  be  proved  that  the, 
supreme  court  of  Florida  has  passed  upon  and  decided  the  question- 
in  fact,  decided  that  in  making  the  return  the  canvassers  \vent  out 
side  of  and  beyond  their  jurisdiction.  It  is  also  offered  to  be  proved 
that  a  circuit  court,  having  jurisdiction  under  the  State  constitution, 
in  a  process  of  quo  warrniitn  instituted  by  the  Tilden  electors  against 
the  Hayes  electors  and  served  upon  the  latter  before  they  h;ul  cast 
their  votes,  has  given  judgment  that  the  Hayes  electors  were  not,  but 
that  the  Tilden  electors  were  legally  elected,  and  has  also  given  judg 
ment  of  ouster  against  the  foruier. '  It  is  further  offered  to  be  proved, 
and  we  have  the  proof  before  us,  that  by  judgment  of  the  supremo 
court  of  Florida  all  the  State  officers,  from  governor  down,  who  were 
voted  for  at  the  same  elect  ion  and  on  the  same  ticket  with  the  Tilden 
electors,  and  who  received  substantially  the  same  number  of  votes, 
have  been  declared  legally  elected,  and  been  put  in  possession  of  their 
respective  offices,  although  the  candidates  upon  the  Hayes  ticket  for 
State  officers  had  been  declared  elected  by  the  State  canvassers  at  the 
same  time  they  had  declared  the  Hayes  electors  to  bo  elected. 

It  is  offered  to  be  proved,  and  here  again  we  have  the  proof  before 
us,  that  the  Legislature  of  the  State  of  Florida  has  passed  an  act  re 
quiring  the  board  of  canvassers  to  make  a  new  canvass  of  the  votes 
cast  for  electors  in  conformity  with  the  principles  laid  down  by  the 
supreme  court ;  that  such  canvass  has  been  made,  by  which  it  appears 
that  the  Tildeu  electors  were  elected  ;  that  in  consequence  of  such 
new  canvass  the  Legislature  has  passed  another  act  declaring  that 
the  Tilden  electors  were  duly  elected  and  were  the  only  persons  au 
thorized  to  cast  the  vote  of  the  State,  that  the  Hayes  electors  had  no 
authority  to  cast  such  vote,  and  ratifying  and  adopting  the  vote  of 
the  Tilden  electors,  and  directing  the  governor  to  certify  to  the  Presi 
dent  of  the  Senate  the  election  of  the  last-named  electors  together 
with  the  act  itself,  which  the  governor  has  done. 

Thus  it  is  offered  to  be  proved  that  the  certificate  of  the  State  can 
vassers  is  false  in  fact ;  that  in  making  it  they  exceeded  their  juris 
diction  and  authority  ;  that  this  has  been  so  decided  by  the  supreme 
court  of  the  State;  that  the  Hayes  electors  have  been  ousted  from 
office  by  the  judgment  of  a  court  of  competent  jurisdiction :  that  the 
Legislature  of  the  State  has  intervened  and  declared  that  the  Hayes 
electors  do  not  represent  the  true  voice  of  the  State  ;  that  the  gov 
ernor  has  so  declared;  and  that  in  fact  the  Hayes  electors  never  were 
elected,  or  declared  to  be  elected,  in  accordance  with  the  laws  of  the 
State.  And  still  we  arc  told  that  this  false  certificate,  made  by  two 
men  with  purely  ministerial  functions — the  appointees  of  a  governor 
who  was  himself  a  candidate  for  re-election — and  which  is  by  law 
made prima  jade  evidence  only,  we  are  told  that  this  certificate  must 
stand,  and  cannot  be  in  any  way  controlled.  All  powers,  all  rights, 
all  persons,  and  hodusof  persons,  courts,  Legislature,  governor,  peo 
ple,  the  State  itself,  pale  and  stand  powerless  before  this  false  certifi 
cate  of  two  men.  No  power  on  earth,  we  are  told,  is  broad  and  high 
and  great  and  strong  enough  to  cope  with  these  two  men  and  their 
false  cerlificate.  They  have  the  power  to  make  a  President  of  a  per 
son  who  confessedly  was  never  elected,  while  two  and  forty  millions 
of  people  and  their  representatives  in  Congress  and  all  the  States  have 
no  power  to  prevent  it.  Such  a  proposition  is  monstrous.  It  is  ab 
horrent  to  all  sense  of  right  and  justice.  It  is  shocking  to  the  con 
science  of  the  whole  people  and  ought  not  to  be  entertained.  It  is  a 
scandal  upon  all  law  and  would  bring  it  info  deserved  contempt, 
By  it  law  would  be  made  to  uphold  wrong  and  fraud  instead  of  right 
and  honesty.  The  establishing  of  such  a  doctrine  would  offer  a 
premium  to  fraud  ;  it  would  tell  the  world  that  fraud  may  be  perpe 
trated  with  impunity,  and  that  there  is  no  help  for  it,  no  way  of  pre 
venting  it,  and  that  the  guilty  persons  may  enjoy  the  fruits  of  their 
guilt. 

Consider  for  a  moment  this  claim.  The  Hayes  electors  have  voted; 
and  we  are  asked  to  declare  their  vote  the  true  vote  of  Florida,  be 
cause  two  irresponsible  ministerialofficers,  keepingback  their  decision 
till  the  day  the  vote  was  to  bo  east,  have  so  declared;  and  this 
although  the  court  having  jurisdiction  of  the  case  has  adjudged  that 
they  had  no  right  to  cast  the  vote  and  were  not  electors  either  in  fact 
or  in  law  ;  although  the  supremo  court  of  the  State  has  in  fact  so  de 
clared  ;  although  the  Legislature  and  the  governor  have  joined  in  so 
finding  and  declaring;  and  although  these  men  have  never  been  in  fact 
elected  by  the  voters  of  Florida.  We  are  told  that  neither  the  two 
Houses  of  Congress,  nor,  if  I  understand  it  rightly,  any  other  author 
ity  on  earth,  have  power  against  this  simple  certificate  signed  by 
two  ministerial  officers — the  creatures  of  the  governor — and  made  by 
law  prima  facie  cvid(  nee  only  ;  that  we  must  sanction  it,  declare  it 
sacred,  although  we  know  it  to  bo  a  lie,  and  thus,  in  fact,  permit  two 
obscure  men  to  elect  a  person  to  the  high  office  of  President.  This  is 
not  only  to  encourage  fraud,  it  is  to  sanctify  it.  Instead  of  declaring, 
as  heretofore  we  have  been  taught  to  believe — foolishly  it  would 
seem — that  fraud  vifiates  everything  it  touches,  it  is  proclaiming 
that  the  greater  the  fraud,  the  more  sacred  is  the  act. 

Here  in  Florida  we  have  this  strange  spectacle:  The  governor  and 
all  the  State  officers  having  been  voted  for  on  the  same  ticket  with 
the  Tilden  electors,  having  received  substantially  the  same  vote,  and 
having  been  counted  out  by  the  same  board  of  canvassers,  have  been 
declared  elected  by  the  highest  judicial  authority  of  the  State,  and 
are  now  exercising  the  powers  of  their  respective  offices  peaceably 
and  to  the  general  contentment  of  the  whole  people,  while  the  Tilden 
electors,  we  are  told, — although  they  too  have  been  declared  electedby 


the  courts,— have  no  po;verto  act,  and  their  vote  must  not  bo  counted. 
What  greater  scandal  upon  the  law  could  be  imagined  '? 

Why  have  not  the  State  courts  full  authority  and  right  to  construe 
the  State  statutes?  Is  there  any  doubt  that  such  is  the  law  ?  It  is 
so  admitted  everywhere.  I  appeal  to  the  members  of  the  Supremo 
Court  upon  this  board  if  such  is  not  the  inflexible  rule  which  governs 
the  action  of  that  court  in  construing  any  statute  of  a  State  ?  Is  not 
the  construction  put  upon  a  statute  of  a  State  by  the  supremo  court 
of  that  State  as  controlling  as  if  such  construction  had  been  in  ex 
press  words  incorporated  into  and  made  a  part  of  the  law? 

Apply,  then,  this  rule  to  the  Florida  case.  The  supreme  court  of 
that  State  have  construed  the  statute  under  which  the  State  canvass 
ers  act  and.  which  alone  gives  them  any  authority  to  act.  By  their 
construction  the  canvassers  in  giving  a  certificate  to  the  Hayes  elect 
ors  exceeded  and  went  beyond  any  jurisdiction  and  power  conferred 
upon  them,  and  their  action  is  therefore  void  and  of  no  effect.  Tell 
mo  why  we,  why  all  the  world  are  not  bound  by  that  construction? 
Where  do  we  get  the  right  to  set  up  our  construction,  or  rather  the 
construction  of  the  board  of  canvassers,  of  a  statute  of  Florida  against 
the  judgment  of  the  supremo  court  of  Florida  ?  Yet,  by  giving  effect 
to  their  certificate,  we  do  in  fact  declare  that  the  judgment  of  i  IK;  two 
canvassers  as  to  what  the  law  is  shall  prevail  over  that  of  the  high 
est  judicial  authority  of  the  State. 

But  it  is  claimed  that  these  Hayes  electors  having  received  certifi 
cates  of  election  and  having  voted  are  dc  facto  officers,  and  tliut  there 
fore  their  acts  must  bo  held  to  be  legal  and  valid.  Indeed !  But  how 
are  the  Hayes  more  than  the  Tilden  electors  dc  facto  officers  '?  Both 
voted  at  the  same  time.  The  vote  of  neither  has  been  followed  by 
any  consequences  affecting  the  rights  of  any  person.  The  effect  of 
the  votes  is  to  be  determined  in  the  future,  and  it  is  to  determine  it 
that  we  arc  now  hero. 

The  doctrine  of  do  facto  officers  in  no  way  applies  to  presidential 
electors  or  to  their  votes.  The  act  of  voting  affects  nobody  ;  it  has 
no  power  or  vitality  until  they  are  given  by  the  votes  being  counted 
by  the  Houses  of  Congress. 

A  strange  perversion  is  it  of  the  equitable  rule  that  the  acts  of  a  de 
facto  officer  shall  bo  considered  valid  as  to  third  persons,  to  apply  it 
in  this  case.  That  rule  was  established  for  the  protection  of  inno 
cent  third  persons  who  have  trusted  to  and  acted  upon  the  fact  that 
an  officer  was  in  open  and  apparently  peaceable  possession  of  an 
office,  and  to  whom  great  injustice  would  be  done  by  permitting  the 
acts  of  such  a  person  to  be  held  void  because  of  a  subsequent  de 
termination  that  he  was  not  a  legal  officer.  This  rule,  that  official 
acts  are  valid  although  performed  by  one  having  no  legal  right  in 
that  regard,  is,  however,  but  an  exception,  and  is  applied  only  in 
favor  of  those  who  have  trusted  to  and  acted  upon  such  acts  as  offi 
cial,  and  in  order  to  prevent  great  wrong  to  innocent  third  persons. 
But  in  the  case  of  the  vote  of  these  electors,  nobody  has  trusted  to 
or  acted  upon  it;  nobody's  rights  have  been  affected  by  it;  nobody's 
condition  has  been  changed  l>y  it;  it  is  inoperative  until  counted; 
its  whole  force  .and  effect  is  derived  from  the  act  and  determination 
of  other  authorities.  We  are  to  give  it  effect  now  for  the  first  time. 

Besides,  this  doctrine  of  the  validity  of  the  acts  of  de  facto  officers 
and  authorities  has  never  been  applied  or  extended  to  their  poll  ical 
action.  While  very  many  of  the  acts  of  the  governments  of  the 
States  while  in  rebellion,  and  of  their  officers  have  been  held  valid 
on  the  ground  that  they  were  dc,  facto,  if  not  dcjitrc,  entitled  to  act  in 
the  premises,  none  of  their  political  action  has  ever  been  recognized 
as  binding  on  any  one.  And  this  has  been  the  rule  adopted  by  the 
Supreme  Court  of  the  United  States. 

I  submit  that  there  is  no  ground  upon  which,  the  votes  of  the  Hayes 
electors  can  be  counted.  They  were,  in  fact,  never  elected.  To  count 
their  votes  would  be  to  set  aside  the  judgment  of  the  supreme  court, 
the  Legislature,  and  the  governor  of  the  State  of  Florida;  it  would 
he  to  give  to  the  certificate  of  two  ministerial  officers,  made  by  law 
merely  prima  fade  evidence,  a  power  and  effect  and  conclusiveness 
not  given  to  the  judgments  of  the  highest  courts  of  law ;  a  result  never 
before  heard  of  in  the  administration  of  justice.  To  count  those  votes 
would  be  to  declare  elected  to  the  high  oOice  of  President  a  person 
who  never  received  the  votes  of  tho  people  as  required  by  the  Con 
stitution,  but  whose  title  would  depend  simply  on  the  illegal,  fraud 
ulent  action  of  two  State  canvassers  in  Florida.  If  it  were  intended 
to  encourage  fraud  and  to  show  that  there  was  no  way  known  to  tho 
law  to  prevent  its  perpetration,  no  better  way  to  do  it  could  be  de 
vised. 

To  count  the  votes  of  the  Hayes  electors  would  be  the  grossest  out 
rage,  equally  upon  the  dearest  rights  of  the  State  and  people  of  Flor 
ida,  and  upon  those  of  all  the  other  States.  By  it  wrong  and  injus 
tice  would  be  put  in  the  place  of  right  and  justice. 

If  this  attempt  to  authorize  these  two  irresponsible  officers,  not  tho 
State  or  people  of  Florida,  to  appoint  presidential  electors  for  that 
State  is  by  the  judgment  of  this  Commission  to  be  crowned  with 
success,  wo  shall'iu  effect  proclaim  to  all  the  world  that  tho  whole 
armory  of  tho  law  and  the  Constitution  contains  no  weapon  of  of 
fense  or  defense  by  which  the  high  office  of  Chief  Magistrate  of  tho 
greatest  civilized  nation  on  earth  can  be  successfufly  protected  and 
defended  against  being  seized  upon  and  held  by  means  of  the  grossest 
fraud.  Such  a  judgment  would  proclaim  to  tho  world  that,  to  obtain 
and  enjoy  tho  office  of  President  of  the  United  States,  it  Is  not  now,  as 
in  the  olden  time,  necessary  to  be  constitutionally  elected  by  the  States 


234 


ELECTORAL  COMMISSION. 


and  the  people ;  but  that  a  candidate  and  party,  as  lacking  in  prin 
ciple  a.s  they  are  rich  in  money,  can,  by  buying  a  few  weak,  wicked, 
and  irresponsible  State  canvassers,  gain  possession  of  and  hold  that 
high  office;  and  that,  such  an  act  will  be  justified  and  sanctilied  by 
the  two  Houses  of  Congress.  In  fine,  such  a  judgment  would  pro 
claim  that  this  Government  is  no  longer  one  of  the  people,  under  the 
Constitution  and  law,  but  that  it  is  a  government  of  returning  boards 
and  their  creatures. 


LOUISIANA. 

The  Commission  having  under  consideration  the  doctoral  vote  of  Louisiana — 

Mr.  Commissioner  ABBOTT  said  substantially  : 

Mr.  PRESIDENT  :  I  desire  to  correct  a  mistake  which  Mr.  Justice 
MILLER  has  made  in  reference  to  the  grounds  and  effect  of  the  decision 
of  the  court  in  Schenck  vs.  Peay,  1  Woolworth,  C.  C.  Kep.,  175,  just 
referred  to. 

That  decision  settles  the  question  that  the  Louisiana  returning- 
board  was  not  a  legally  constituted  board;  that  it  was,  in  fact,  no 
board  at  L.ll ;  and  that  its  acts  are  not  entitled  to  respect,  and  are  of 
no  force  and  effect. 

That  judgment  was  by  no  means  put  solely  or  mainly  upon  the 
ground  that,  where  three  persons  are  made  a  board  or  commission, 
and  two  undertake  to  act  without  notice  to  the  third,  or  without  the 
third  knowing  of  or  having  any  opportunity  to  participate  in  their 
doings,  the  action  of  the  two  cannot  be  sustained.  That  was  not 
the  chief  reason  for  the  decision. 

The  question  at  issue  was  the  validity  of  the  action  of  a  board  of 
tax-commissioners  in  Arkansas,  I  think.  The  law  of  Congress  pro 
vided  that  three  persons  should  be  appointed  such  commissioners  by 
the  President ;  and  three  had  been  appointed,  but  only  two  had  qual- 
itied  under  the  appointment.  The  two  had  acted,  and,  under  their 
action,  certain  lauds  had  been  taken  for  the  payment  of  taxes;  and 
the  question  to  be  decided  was  the  validity  of  the  action  of  the  two. 

The  court,  Mr.  Justice  MILLEK, rightfully,  I  think,  and  in  accordance 
with  principle  and  the  authorities,  held  that,  where  the  law  provides 
that  three  shall  constitute  a  board,  a  less  number  cannot  make  a  legal 
board  at  all,  and  that  the  law  having  required  three  commissioners, 
there  was  110  board  until  the  three  were  appointed  and  qualified.  Hear 
what  he  says  on  page  188 : 

The  case  before  us  goes  oven  beyond  this,  for,  according  to  the  statement  of  the 
bill,  there  never  was  a  board  of  commissioners  in  existence  until  after  the  proceed 
ings  in  regard  to  this  title  were  completed.  The  law  required  three  commissioners. 
A'k'sa  number  was  not  a  hoard  and  could  do  nothing.  The  third  commissioner 
for  Arkansas  though  nominated  and  confirmed  did  not  qualify,  or  enter  upon  the 
duties  of  his  oilico,  until  alter  the  sale  of  tho  lots  to  the  defendants.  There  was 
therefore  no  board  of  commissioners  iu  existence  authorized  to  assess  the  tax,  to 
receive  the  money,  or  to  sell  the  land.  If  Congress  had  intended  to  confide  these 
important  functions  to  two  persons,  it  would  not  have  required  the  appointment  of 
n  third.  If  it  had  been  willing  that  two  out  of  tho  three  should  act,  tho  statute 
could  easily  have  made  provision  for  that  contingency  as  has  since  been  done  by 
tho  act  of  1805. 

After  the  passage  of  the  law  creating  the  tax-commissioners  another 
act  was  passed  by  Congress  giving  power  to  a  majority  of  the  board 
to  do  any  and  all  acts  which  could  be  done  by  the  whole'  board.  This, 
it  was  claimed,  legalized  the  action  of  the  two  commissioners;  but  Mr. 
Justice  MILLER  held  that,  if  the  last  act  was  retroactive,  it  did  not 
affect  the  case,  for  the  clear  and  plain  reason  that  it  applied  only  to 
cases  where  there  was  a  legal  board  in  existence,  and  that,  where  the 
law  provided  for  a  board  of  three,  two  did  not  constitute  a  board  at 
all,  and  so  the  act  did  not  apply.  If  there  had  been  three  commis 
sioners  in  existence,  then  the  act  might  take  effect  and  confirm  the 
action  of  the  two ;  but  not  otherwise.  Hear  what  Mr.  Justice  MILLER 
says  on  this  point  at  page  190 : 

But  if  the  section  we  have  cited  conld  bo  held  to  have  a  retrospective  effect,  the 
case  belore  us  does  not  come  within  its  purview,  for  it  requires  a  board  of  tax  com 
missioners  to  bo  in  existence,  and  then  provides  that  a  majority  of  that  board  can 
act.  Wo  have  already  shown  that,  according  to  the  allegations-  of  the  bill,  no  such 
board  was  in  existence;  thatnono  had  ever  been  organized  whon  the  two  commis 
sioners  assessed  the  tax  and  sold  the  defendant  s  property.  Tho  act  of  1865  docs 
not  pretend  to  hold  that  the  sale  shall  be  valid  when  there  is  no  board  in  existence, 
where  one  of  the  commissioners  never  qualitied,  and  whore,  consequently,  no  au 
thority  was  ever  vested  in  three  which  might  bo  exercised  by  two. 

In  the  case  of  Schenck  vs.  Peay,  Mr.  Justice  MILLER  decides  another 
matter  to  which  I  wish  to  call  the  careful  attention  of  the  Commis 
sion,  because  his  decision  is  so  admirably  expressed  and  applies  with 
such  directness  and  force  to  this  case  of  the  constitution  of  the  Louisi 
ana  returning  board.  It  is  holden  that  whenever  the  rights  of  prop 
erty  are  to  bo  affected  by  tho  proceedings  in  pais,  i.  e.,  by  any  board 
of  ministerial  officers,  their  proceedings  must  be  proved  to  be  exactly 
and  strictly  in  accordance  with  the  "law  authorizing  them.  Iu  the 
case  before  him  the  title  to  a  parcel  of  land  was  to  be  affected  by  tho 
action  of  the  tax-commissioners.  I  read  what  he  says,  at  page  188 : 

Nothing  is  better  settled  in  the  law  of  this  country  than  that  proceedings  in  pain, 
for  the  purpose  of  divesting  one  person  of  his  title' to  real  estate,  and  conferring  it 
upon  another,  must  be  shown  to  have  been  iiiexactpursuaiicoof  the  statute  author 
ising  them,  and  that  no  presumption  will  bo  indulged  in  favor  of  their  correctness. 
This  principle  has  been  more  frequently  applied  to  tax  titles  than  to  any  other  class 
of  cases.  Weeaunot  presume,  therefore,  that-  Congress  intended  that  less  than  three 
commissioners  could  conduct  these  proceedings,  and  still  less  that  they  intended 
tbat,  in  regard  to  the  important  matters  confided  to  the  board,  any  action  should 
be  taken  when  there  was  no  legally  organized  board  in  existence. 

Apply  the  rule,  thus  so  well  and  so  forcibly  laid  down,  to  the,  case 
of  tho  Louisiana,  returning  board.  It,  is  not  a  court ;  its  action  is  In 


pals ;  it  is  a  ministerial,  not  a  judicial  body.  The  law  constituting  it 
requires  five  members  taken  from  different  political  parties,  tho  func 
tions  of  tho  board  being  political  and  to  affect  parties.  As  consti 
tuted,  it  consisted  otfoitr,  not  five  members,  all  of  the  same.,  not  dif 
ferent  parties.  Upon  the  action  of  this  board  depended  the  highest 
rights  of  the  State  and  of  tho  United  States;  nay,  the  very  liberties 
of  the  people!  Shall  greater  strictness  bo  required  in  the  case  of  tho 
title  to  a  parcel  of  laud  than  when  the  highest  rights  and  dearest 
liberties  of  a  whole  people  are  concerned? 

But  the  whole  decision  is  applicable  to  this  case  of  the  constitu 
tion  of  the  returning  board  of  Louisiana,  and,  if  it  is  law — and  no  one 
doubts  it  is — it  forever  settles  the  question  that  there  was  no  legally 
constituted  board  in  that  State  with  any  power  to  act.  Tho  Louisi 
ana  case  is  by  all  odds  the  strongest ;  for  not  only  is  the  law  fixing 
the  number  of  members  violated,  but  the  much  more  important  pro 
vision  requiring  tho  board,  in  order  to  protect  the  rights  of  all,  to 
be  made  up  (Tf  different  political  parties  is  utterly  disregarded,  ap 
parently  that  the  grossest  frauds  might  be  committed. 

The  fact  that  in  the  Schenck  vs.  Peay  case  the  third  tax  commis 
sioner,  though  appointed,  had  never  qualified,  makes  no  difference 
in  principle ;  the  decision  is  put  solely  on  the  ground  that  when  the 
law  requires  one  number  to  constitute  a  board,  a  less  number  will 
not  make  a  legal  body.  And  so  it  is  held  in  other  cases  of  the  highest 
authority,  especially  in  that  of  Wentworth  vs.  Farmiugton,  49  N.  H. 
Rep.,  120. 

I  commend  to  the  Commission  this  decision  of  Mr.  Justice  MILLER 
for  their  careful  examination. 


OREGON. 

The  Commission  having  under  consideration  the  electoral  vote  of  Oregon — 

Mr.  Commissioner  ABBOTT  said  substantially: 

Mr.  PRESIDENT:  I  wish  to  call  the  attention  of  the  Commission  to 
the  position  of  this  case  in  reference  and  relation  to  the  decisions 
heretofore  made  by  the  majority  in  the  two  cases  of  Louisiana  and 
Florida.  In  both  those  cases  it  lias  been  holden  that  the  certificate 
of  tho  officers  appointed  and  acting  under  the  State  law  for  tho  pur 
pose  of  canvassing  tho  returns  and  determining  who  have  been  elected 
as  presidential  electors  cannot  be  questioned,  controlled,  or  contra 
dicted  for  any  cause  whatever ;  that  it  is  final  and  conclusive,  and 
must  be  so  taken  and  considered  by  the  two  Houses  of  Congress ;  in 
fact,  that  it  imports  absolute  verity. 

With  that  doctrine  I  did  not  and  do  not  agree.  I  protested  against 
it  when  it  was  under  consideration,  and  I  shall  always  protest  against 
it.  But  by  its  adoption  and  maintenance  by  a  majority  of  this  Com 
mission  the  votes  of  two  States  have  been  counted  for  a  person  who 
never  received  the  true  and  honest  votes  of  those  States,  but  only  false 
certificates  from  corrupt  and  fraudulent  returning  boards.  Unless 
tho  majority  are  prepared  in  this  case  to  reverse  their  former  action, 
to  change  their  judgments  as  the  necessities  of  the  case  may  require, 
Certificate  No.  2,  given  by  the  governor  to  Cronin  and  his  associates, 
must  prevail  and  be  declared  to  be  the  only  conclusive  evidence  of 
the  appointment  of  electors  for  the  State  of  Oregon.  There  is  no 
escape  from  such  a  decision,  if  consistency  is  to  govern,  and  the  same 
rules  which  were  established  in  the  former  cases  are  to  bo  applied 
now.  In  those  cases  it  was  held  and  determined  by  the  majority  be 
yond  all  peradventure  that  the  certificate  of  officers  appointed  under 
the  State  law  to  canvass  returns  and  determine  who  Avere  elected 
could  under  no  circumstances  bo  controlled,  contradicted,  or  varied, 
but  that  it  must  stand  as  the  conclusive  evidence  of  the  appointment 
of  electors  against  any  and  all  objections.  Let  us  apply  this  rule 
to  the  Oregon  certificates  numbered  1  and  2,  the  former  being  in 
favor  of  Watts  and  his  associates,  and  the  latter  in  favor  of  Crouin 
and  his  associates.  In  the  first  place,  let  us  see  what  is  the  law  of 
Oregon  on  the  subject  of  determining  the  persons  chosen  as  presi 
dential  electors.  It  in  substance  provides  that  the  secretary  of  state, 
upon  receiving  the  returns  from  tho  different  voting-precincts,  shall 
proceed  to  canvass  the  votes  given  for  State  officers  aud  members  of 
Congress  in  the  presence  of  the  governor;  and  that  the  governor  shall  grant 
certificates  of  election  to  the  persons  having  tho  highest  number  of 
votes,  and  shall  also  issue  a  proclamation  declaring  the  election  of 
such  persons.  Another  section  provides  that  votes  for  presidential 
electors  shall  be  given,  received,  returned,  aud  canvassed  in  the  same 
manner  as  those  for  membersof  Congress  are  given,  received,  returned, 
and  canvassed  ;  and  that  the  secretary  of  state  shall  prepare  two  lists 
of  the  names  of  tho  electors  elected,  shall  affix  thereto  the  seal  of  the 
State,  aud  that  such  lists  shall  be  signed  by  tho  governor  and  tho 
secretary  of  state,  and  delivered  to  the  college  of  electors. 

The  certificate  of  election  to  be  given  to  members  of  Congress  and 
State  officers  is  not  to  bo  given  to  the  electors;  but  it  is  well  to  con 
sider  this  provision  in  determining  who  are  the  canvassing  officers  for 
that  State.  Upon  any  fair  construction  of  the  law  tho  canvassing 
officers  are  the  governor  and  tho  secretary  of  state.  Neither  of  them 
alone  has  this  power,  but  it  resides  in  both  acting  together.  As  to 
members  of  Congress  and  State  officers,  tho  secretary  is  to  canArass 
the  votes  in  presence  of  the  governor,  Avho  alone  from  this  canvassing 
is  to  certify  and  proclaim  the  result.  The  secretary  is  .subonlin.ilo  ; 
he  is  to  do  tho  mechanical  work,  but  in  the  presence  of  the  highest 
officer  of  the  State,  tho  governor,  who  alone  is  to  act  on  tho  canvass. 


ELECTORAL  COMMISSION. 


Where  the  governor  was  to  make  one  of  the  canvassing  board  this 
•would  be  the  natural  form  of  expression.  It  would  hardly  be  pro 
vided  that  the  governor  should  do  the  work  while  his  secretary  was 
present;  but  that  would  bo  done  by  the  latter  in  the  presence  and 
under  the  supervision  of  the  governor.  The  presence  of  the  gov 
ernor  could  l)e  required  only  as  canvasser,  one  who  was  to  be  respon 
sible  to  see  that  the  work  was  rightly  done.  To  make  him  a  member, 
it  is  by  no  means  necessary  that  he  should  do  any  of  the  manual  or 
arithmetical  work  of  the  canvass;  it  is  sufficient  that  he  is  there  to 
see  that  the  right  results  are  reached.  Can  it  with  any  show  of  reason 
be  claimed  that,  if  in  his  presence  the  secretary  should  make  a  mis 
take  or  should  attempt  to  commit  a  fraud,  the  governor  would  have 
no  power  to  set  it  right,  but  must  make  his  certificate  according  to 
the  fraudulent  or  erroneous  canvass  by  the  secretary  ?  His  presence 
is  provided  for  that  he  may  prevent  any  fraud  or  mistake  in  the  can 
vass,  and  it  would  be  preposterous  to  claim  that  he  could  not  correct 
any  such  fraud  or  mistake  and  make  his  certificate  according  to  the 
fact.  Indeed,  as  to  Congressmen  and  State  officers  he  is  vested  with 
the  solo  authority  to  act.  The  canvass  is  made  in  his  presence  by  the 
secretary ;  but  the  governor  alone  gives  a  certificate — he  alone  deter 
mines  and  proclaims  the  persons  elected. 

Now,  although  the  governor  is  not  to  make  proclamation  or  alone 
to  give  the  certificate  in  the  case  of  electors,  his  duty  with  respect  to 
State  officers  ought  to  be  considered  in  determining  who  compose  the 
board  of  canvassers.  In  the  case  of  electors  the  votes  are  to  be  can 
vassed  as  in  the  case  of  State  officers,  by  the  secretary  of  state  in  the 
presence  of  the  governor.  The  canvass  can  be  made  by  neither  with 
out  the  other ;  for  its  validity  the  governor  is  just  as  necessary  as  the 
secretary.  A  canvass  made  by  the  secretary  alone  would  be  just  as 
illegal,  just  as  void  as  it  would  be  if  made  by  the  governor  without 
the  secretary.  Both  officers  are  absolutely  necessary  to  make  a  com 
plete,  legal  canvass.  It  is  of  no  consequence  what  part  each  is  to  take 
in  the  canvass.  One  may  do  the  mechanical  and  arithmetical  work  ; 
the  other  may  be  present  to  see  that  it  is  rightly  done  :  both  together 
compose  the  board  of  canvassers,  not  one  alone.  The  test  is  that  both 
are  required  to  be  present  when  the  canvass  is  made,  and  that  it  can 
not  be  made  in  the  absence  of  either. 

Here  the  canvass  is  to  be  made  by  the  secretary  and  the  governor ; 
the  secretary  is  to  prepare  two  lists  of  the  persons  elected,  to  which 
he  is  to  affix  the  great  seal  of  the  State,  and  which  are  to  be  signed  by 
the  governor  and  himself  and  delivered  to  the  electors.  Can  there  be 
any  stronger  evidence  that  the  governor  and  secretary  are  the  can 
vassers  of  the  votes  for  electors  ? 

The  secretary  is  to  canvass  the  votes  in  the  presence  of  the  governor ; 
both  are  to  ascertain  and  determine  the  result,  that  is,  who  are  elected  ; 
and  both  are  to  sign  a  certificate  of  that  result.  Both  ascertain  and 
determine  the  fact  of  election,  and  both  must  agree  in  that  ascertain 
ment  and  determination,  for  both  are  required  to  sign  a  certificate  of 
it.  Both  must  be  present  at  the  canvass,  and  the  absence  of  either 
would  vitiate  it.  Both  must  certify  to  the  result  of  the  canvass,  and 
the  refusal  of  either  to  do  so  would  destroy  the  certificate.  Can  any 
thing  show  more  conclusively  that  the  two — not  one — are  to  canvass 
the  votes,  determine  who  are  elected  by  the  canvass,  and  certify 
that  determination  ?  No  certificate  of  election  under  the  law  of  Ore 
gon  is  sufficient  unless  it  is  signed  by  the  secretary  of  state  and  the 
governor,  and,  if  it  is  so  signed  and  the  groat  seal  is  affixed,  it  is  full 
and  complete — the  precise  evidence  required  by  law  to  prove  the  vote 
of  the  State  for  President.  And  that  certificate  must  give  the  result 
of  a  canvass  of  the  votes  made  by  both,  not  one,  of  the  officers  sign 
ing  it. 

The  certificate  of  Croniu  and  his  associates  fully  and  exactly 
answers  the  requirements  of  the  laws  of  Oregon.  It  certifies  that 
Croniu  and  his  associates  were  elected.  It  is  under  the  great  seal  of 
the  State,  and  is  signed  by  the  governor  and  the  secretary  of  state. 

These  are  all  the  requirements  of  the  law  of  Oregon.  It  is  of  no 
consequence  what  else  the  certificate  may  contain  ;  the  form  of  ex 
pression  is  immaterial,  for  no  particular  form  is  prescribed.  All  that 
is  necessary  is  that  there  should  appear  in  it  the  names  of  the  persons 
elected  as  electprs;  that  it  should  be  under  the  great  seal,  and  be 
signed  by  the  governor  and  the  secretary  of  state.  All  this  appears 
fully  and  clearly  in  the  Croniu  certificate. 

The  governor  certifies  that  Cronin  and  his  associates  are  elected, 
and  the  secretary  of  state  signs  in  attestation  and  affixes  the  great 
seal  of  the  State.  This  is  all  that  is  necessary.  The  fact  that  it  is 
stated  in  the  certificate  that  the  persons  named  received  the  highest 
number  of  votes  cast  far  persons  eligible  under  the  Constitution  of 
the  United  States  to  be  appointed  electors,  and  are  duly  elected,  does 
not  affect  the  validity  of  the  certificate.  To  be  sure  all  that  was  re 
quired  was  to  certify  the  persons  duly  elected;  but  because  the  cer 
tificate  contains  another  statement,  certainly  not  contradictory  of 
the  first,  it  does  not  vitiate  it  or  destroy  its  effect.  This  certificate 
fully  meets,  too,  the  requirements  of  the  act  of  Congress  which  directs 
the  governor  to  cause  three  lists  of  the  names  of  the  electors  of  the 
Sty  to  to  bo  made,  certified,  and  delivered  to  the  electors;  it  is  certi 
fied  by  the  governor  under  the  great  seal,  and  attested  by  the  secre 
tary  of  state.  We  have  here,  then,  a  certificate  of  election  which  in 
itself  fully  and  exactly  complies  with  and  fulfills  all  the  require 
ments  of  the  law  of  Oregon  and  of  the  act  of  Congress. 

If  the  Senator  from  Vermont  still  adheres  to  the  opinion  he  expressed 
in  the  Florida  case,  that  the  certificate  of  the  governor  under  the  act 


of  Congress  is  final  and  conclusive,  he  has  such  a  certificate  here.  If 
the  Senator  from  Indiana  and  the  rest  of  the  majority  of  the  Commis 
sion  propose  still  to  adhere  to  their  decision  that  the  determination 
of  the  persons  elected  as  electors  and  the  certificate  thereof  under  and 
by  virtue  of  the  State  laws  is  final  and  conclusive  and  cannot  be  con 
trolled,  contradicted,  or  varied,  they  have  here  such  a  certificate,  and 
it  must  stand  and  determine  the  persons  elected,  unless  it  is  proposed 
to  change  that  rule  of  construction.  I  maintain  that,  if  the  decisions 
of  the  majority  in  the  Florida  and  Louisiana  cases  are  to  stand  and 
serve  as  guides  in  this  case,  to  govern  it  in  fact,  then  Cronin  must  be 
declared  a  duly  appointed  elector  for  Oregon. 

To  be  sure,  if  you  look  behind  the  returns,  another  person  appears 
to  have  received  some  1,100  more  votes  than  did  Cronin  ;  but  what  of 
that  ?  If  you  had  looked  behind  the  returns  in  the  Louisiana  case, 
you  would  have  found  that  eight  persons  received  from  six  to  ten 
thousand  votes  more  than  did  the  persons  whom  yon  decided  to  be 
elected.  Why  be  troubled  at  a  paltry  1,100  votes  when  you  have  faced 
without  blenching  10,000  votes  ?  When  the  camel  of  Louisiana  has 
been  swallowed,  why  strain  at  the  gnat  of  Oregon? 

But  let  us  now  examine  the  certificate  of  Watts  and  his  associates 
and  see  if  it  comes  up  to  the  requirements  of  any  law,  State  or  Federal. 
Clearly  it  does  not.  It  contains  no  certificate  of  election ;  it  is  not 
signed  by  the  governor,  both  of  which  are  necessary  tinder  the  State 
law;  and,  not  being  signed  or  made  by  the  executive,  it  in  no  respect 
complies  with  the  act  of  Congress.  There  is,  as  I  have  said,  no  cer 
tificate  of  election  signed  by  any  one  produced  by  Watts  and  his  as 
sociates.  There  is,  however,  a  certified  statement  of  the  votes  cast 
for  electors  at  the  election,  from  which  it  is  claimed  that  we,  not  the 
secretary  of  state  and  governor  of  Oregon  as  required  by  law,  are  to 
ascertain  and  determine  who  has  been  elected.  That  is  to  say,  we 
are  to  make  ourselves  into  a  returning  board  and  do  the  duty  of  the 
State  officers.  The  certificate  does  not  state,  nor  does  it  appear,  that 
all  the  votes  were  legally  cast  or  legally  returned.  Indeed,  no  facts 
are  stated  from  which  we  can  determine  who  were  elected,  even  were 
it  competent  for  us  to  usurp  the  duties  of  the  State  canvassers.  It  is 
clear  that  this  is  not,  and  was  never  intended  by  the  secretary  of  state 
to  be,  a  certificate  of  election  under  the  law  of  Oregon,  and  that  the  one 
signed  by  the  governor  and  secretary  was  so  intended.  By  looking 
at  the  affidavit  of  Watts  and  his  associates,  which  is  attached  to  Cer 
tificate  No.  1,  you  will  find  them  swearing  as  follows :  that  they  de 
manded  "of  the  governor  and  of  the  secretary  of  state  certified  lists 
of  the  electors  for  President  and  Vice-Presiuent  of  the  United  States 
for  the  State  of  Oregon,  but  both  L.  F.  Grover,  governor  of  the  State 
of  Oregon,  and  S.  F.  Chadwick,  secretary  of  state  of  said  State,  then 
and  there  refused  to  deliver  to  us  or  either  of  us  any  such  certified 
lists  or  any  certificate  of  election  whatever.  And  being  informed 
that  such  lists  had  been  delivered  to  one  E.  A.  Cronin  by  said  secretary 
of  state,  we  each  and  all  demanded  such  certified  lists  of  said  Crouiti, 
but  he  then  and  there  refused  to  deliver  or  to  exhibit  such  certified 
lists  to  us  or  either  of  us.  Whereupon  we  have  procured  from  the 
secretary  of  state  certified  copies  of  the  abstract  of  the  vote  of  the 
State  of  Oregon  for  electors  of  President  and  Vice-President  at  the 
presidential  election  held  in  said  State  November  7,  A.  D.  187G, 
and  have  attached  them  to  the  certified  lists  of  the  persons  voted  for 
by  us  and  of  the  votes  cast  by  us  for  President  and  Vice-Presideut  of 
the  United  States,  in  lieu  of  a  more  formal  certificate." 

Here,  then,  several  things  are  clear  from  this  sworn  statement : 
First,  that  the  secretary  of  state  and  the  governor  never  intended,  but 
always  refused,  to  give  any  certificate  of  election  to  Watts;  and  that 
both  of  these  officers  did  intend  to  give,  and  in  pursuance  of  that  in 
tent  did  give,  to  Cronin  a  certificate  of  election  in  accordance  with 
both  State  and  national  law.  Second,  that  all  parties  interested  un 
derstood  it  to  be  the  only  legal  certificate  given.  It  is  claimed  hero 
now  that  the  secretary  of  state,  and  the  governor  of  Oregon,  and  all 
parties  interested,  together  with  the  citizens  of  that  State,  did  not 
know  and  understand  their  own  law,  and  that  it  is  left  for  this  Com 
mission  to  discover  that  the  certificate  of  election  giv  en  by  the  secretary 
of  state  and  the  governor  under  the  great  seal,  and  intended  and  sup 
posed  to  be  the  legal  and  rightful  certificate  under  State  and  Federal 
law,  was,  in  fact,  no  certificate  at  all  and  must  be  set  aside  and  held 
of  no  effect ;  while  a  mere  abstract  of  votes,  containing  no  certificate 
of  election  and  signed  only  by  the  secretary  of  state,  and  not  intended 
to  be  given  or  received  as'such  certificate,  answers  fully  the  require 
ments  of  the  State  law,  which  requires  such  certificate  to  certify  to 
the  election  and  to  be  signed  by  the  governor  and  the  secretary  of 
state. 

If  the  certificate  of  Croniu  is  rejected,  it  is  simply  reversing  the 
decisions  in  the  Florida  and  Louisiana  cases,  and  adopting  a  rule  ex 
actly  opposite  to  the  one  governing  those  cases. 

But  even  if  it  is  held  that  the  secretary  of  state  alone  is  the  per 
son  to  canvass  the  votes  and  determine  who  are  elected,  the  Cronin 
certificate  is  the  only  one  that  meets  the  requirements  of  the  law. 
That  is  the  only  certificate  of  election.  There  is  no  other.  It  is  un 
der  the  great  seal  of  the  State  and  is  signed  by  the  secretary  of  state. 
That  it  is  also  signed  by  the  governor  does  not  in  any  way  detract 
from  its  legality  or  effect.  So  that,  whatever  construction  is  put  upon 
the  State  law,  whether  it  is  holden  that  the  secretary  of  state  alone 
or  the  governor  and  secretary  together  constitute  the  board  of  can 
vassers  of  votes,  that  certificated  the  only  one  made  in  conformity 
with  law— in  fact,  the  only  certificate  of  election  at  all. 


236 


ELECTORAL  COMMISSION. 


But  do  not.  misunderstand  me.  I  do  not  believe  that  Cronin  was  duly 
elected  an  elector  for  the  State  of  Oregon,  and  I  shall  so  vote.  I  agree 
that  the  weight  of  American  authorities,  including  especially  those  of 
my  own  State,  are  in  his  favor;  but  I  believe  the  true,  the  fair,  the 
just  rule  to  bo  this :  When  a  person  ineligible  for  election  is  voted 
for  and  receives  the  largest  number  of  votes,  it  must  be  held  that 
there  is  no  election,  unless  it  can  be  proved  that  the  electors  knew  of 
his  iueligibility  when  they  voted  for  him,  audin  that  case  their  votes 
are  1o  bo  treated  as  mere  blanks,  not  votes  at  all.  In  this  case  I  am 
not  satisfied  that  the  people  of  Oregon  can  bo  fairly  .said  to  have 
known  that  Watts  held  the  office  of  postmaster.  Some  of  them  did 
undoubtedly  know  it ;  but  in  a  State  so  largo  territorially  as  is  Ore 
gon,  it  is  not  reasonable  to  suppose  that  any  considerable  number  of 
the  citizens  of  that  State  knew  that  he  was  postmaster  in  a  small 
town,  and  I  therefore  think  it  must  be  held  that  Watts,  being  ineli 
gible,  there  was  no  election  of  one  elector. 

That  Watts  held  an  office  of  profit  under  the  United  States  at  the 
time  ho  was  voted  foe  is  not  denied.  It  has  been  held  here  that  if 
such  a  person  receives  the  certificate  of  election  from  the  proper  au 
thorities  his  vote  must  be  counted,  and  that  the  two  Houses  of  Con 
gress  have  no  power  t.o  inquire  whether  he  is  by  the  Constitution  pro 
hibited  from  being  elected  or  not.  This  seems  to  rue  a  most  mon 
strous  proposition,  one  equally  strange  and  dangerous.  The  prohibi 
tion  of  the  Constitution  is  absolute  : 

No  person  holding  an  office  of  trust  or  profit  under  the  United  States  shall  be  ap 
pointed  au  elector. 

Nothing  could  bo  stronger.  The  voting  for  President  is  a  right 
created  solely  by  the  Constitution  ;  before  that  was  adopted  it  had 
no  existence  ;  it  depends  therefore  entirely  on  the  terms  of  the  grant, 
and  must  bo  exercised  according  to  its  mandates  and  provisions.  If 
a  reason  for  this  prohibition  was  sought  for,  it  could  be  easily  found. 
It  was  not  intended  that  Federal  officers  should  be  candidates  for 
appointment,  so  that  they  might  not  bo  tempted  to  use  their  power 
and  influence  as  such  officers  to  affect  or  control  an  election.  The 
Constitution  must  bo  construed  as  saying  in  terms  to  the  people  of 
Oregon,  "  You  shall  not  vote  for  J.  W.  Watts."  It,  in  effect,  so  says 
to  the  people  of  any  State  in  reference  to  any  candidate  who  holds  an 
office  of  trust  or  profit  under  the  United  States.  To  claim  that  this 
prohibition  upon  the  States  is  left  to  them,  the  very  parties  prohib 
ited,  and  to  them  only,  to  enforce,  is  against  all  logic  and  reason.  It 
amounts  to  this  :  a  party  is  prohibited  by  a  superior  authority  from 
doing  a  particular  act  which,  affects  that  superior  authority,  and  still 
the  party  prohibited  is  aloue  to  determine  whether  it  will  regard  the 
prohibition,  and  if  it  does  not  regard  it,  the  superior  authority,  al 
though  affected  by  such  determination,  has  no  right  or  power  to  en 
force  the  prohibition.  The  statement  of  the  claim  is  a  sufficient  refu 
tation  of  it.  Until  the  hearing  before  this  Commission  began  it  was 
never  heard  or  even  dreamed  that  a  State  could  against  the  pro 
hibition  of  the  Constitution  appoint  a  person  elector  and  have  his 
vote  counted,  there  being  no  power  in  Congress  to  prevent  it. 

Why,  look  for  a  moment  at  the  provisions  of  the  law  under  which 
we  are  acting.  Consider  them,  and  then  say,  who  can,  that  we  are 
compelled  to  count  the  vote  of  a  person  whom  the  Constitution  pro 
hibits  the  State  from  appointing  as  au  elector !  By  that  law  the 
duties  of  this  Commission  are  expressly  and  carefully  defined.  This 
Commission  is  to  "  decide  whether  any  and  what  votes  from  such 
State  are  the  votes  provided  for  by  the  Constitution  of  the  United 
States" — mark  it,  and  consider  it  w"ell — "whether  they  arc  the  votes  pro 
vided  for  by  the  Constitution."  Could  anything  be  plainer?  Again, 
the  Commission  is  to  "  decide  how  many  and  what  persons  were  duly 
appointed  electors  in  such  State."  We 'have  each  taken  an  oath  that 
"  we  will  impartially  examine  and  consider  all  questions  submitted 
to  the  Commission  of  which  we  are  members,  and  a  true  judgment 
give  therein." 

It  is  proven  to  us  that  a  person  who  was  by  the  Constitution  abso 
lutely  prohibited  and  forbidden  to  be  elected  has  voted  as  an  elector. 
Can  we  find  and  determine  under  the  law  and  our  oaths  that  his  vote 
is  the  one  "  provided  for  by  the  Constitution  of  the  United  States  " 
when  he  is  by  that  instrument  expressly  prohibited  from  casting  a 
vote  ?  Can  we  say  that  such  a  person  "  was  duly  appointed  an  elector" 
when  the  Constitution  expressly  declares  that  he  shall  not  be  so  ap 
pointed  ? 

Speaking  for  myself  alone,  I  can  only  say  that  if  I,  as  a  member  of 
this  Commission  and  having  in  mind  the  oath  I  have  taken  to  honestly 
discharge  the  duties  imposed  upon  me  by  the  law  creating  it,  decided, 
as  a  presidential  elector,  in  favor  of  the  vote  of  a  person  who  held  an 
office  of  trust  or  profit  under  the  United  States  at  the  time  of  his  elec 
tion,  I  should  be  morally,  if  not  legally,  guilty  of  perjury.  I  should 
bo  doing  precisely  that  which  I  had'  solemnly  sworn  1  would  not  do. 

But  it  is  claimed  that  Watts,  although  holding  an  office  of  profit 
under  the  United  States  when  ho  was  appointed  and  for  sometime 
after,  resigned  that  office  and  also  the  office  of  elector  before  casting 
his  vote,  and  that  ho  was  subsequently  by  the  other  electors  chosen 
to  fill  his  own  vacancy.  At  the  best,  this  is  but  a  gross  evasion  both 
of  the  spirit  and  the  letter  of  the  Constitution.  But  let  us  examine 
and  see  if  the  prohibition  of  the  Constitution  can  bo  gotten  rid  of  so 
easily. 

The  act  of  Congress,  Revised  Statutes,  section  133,  provides  that— 
_  Each  State  may  by  law  provide  for  the  filling  of  any  vacancies  which  may  occur 
in  Us  college  of  electors  when  such  college  meets  to  give  its  electoral  vote. 


Section  134  provides — 

That  whenever  any  State  has  held  an  election  for  the  purpose  of  choosing  elect 
ors  and  has  failed  to  make  a  choice  on  the  day  prescribed  by  law,  the  electors  may 
be  appointed  on  a  subsequent  day  hi  such  manner  as  the  Legislature  of  such  State 
may  direct. 

The  law  of  Oregon  provides  that  "  the  electors  shall  convene  at  the 
seat  of  government  on  the  first  Monday  of  December  next  after  the 
election  at  the  hour  of  twelve  of  the  clock  at  noon  of  that  day,  and 
if  there  shall  be  any  vacancy  in  the  office  of  an  elector  occasioned  by 
death,  refusal  to  act,  neglect  to  attend,  or  otherwise,  the  electors 
present  shall  immediately  proceed  to  fill  by  viva  voce  and  plurality  of 
votes  such  vacancy  in  the  electoral  college."  It  is  claimed  that  under 
these  provisions  of  the  law  Watts  could  resign,  thus  create  a  vacancy, 
be  immediately  elected  to  fill  it,  and  cast  one  vote  of  the  State  for 
President. 

An  examination  of  the  affidavits  and  returns  of  this  Watts  and  his 
associates  shows  a  queer  state  of  facts — something,  indeed,  almost 
mysterious.  The  affidavit  of  Watts  and  his  associates,  Odell  and 
Cartwright,  to  wliich  they  all  matte  oath,  says  that — 

At  the  hour  of  twelve  o'clock  m.  of  the  (Jth  day  of  December,  A.  D.  1876,  -wo 
duly  assembled  at  the  State  capital,  in  a  room  in' the  capital  building  at  Salem, 
Oregon,  which  was  assigned  to  us  by  the  secretary  of  state;  that  wo  duly  on  said 
day  and  hour  demanded  of  the  governor  and  secretary  of  state  "  certain  certified 
lists  of  electors  which  were  then  and  there  refused. 

Now,  in  the  certificate  of  their  vote  for  President  and  Vice-Presi 
dent  two  of  these  same  gentlemen,  Odell  and  Cartwright,  say  that 
at  precisely  twelve  o'clock  noon  on  the  same  Gth  day  of  December, 
they  two,  alone,  met  at  the  seat  of  government ;  that  they  organized 
by  the  choice  of  one  as  chairman  and  the  other  as  secretary;  that 
one  of  them  presented  the  resignation  of  Watts,  ,whieh  was  read 
and  accepted ;  that  there  were  but  two  electors  present,  namely,  said 
Odell  and  Cartwright ;  that  the  two  thereupon  declared  one  vacancy 
to  exist  in  the  college,  and  elected  Watts  to  fill  the  vacancy  occasioned 
by  his  own  resignation.  Put  together  the  affidavit  of  the  three  and 
the  certificate  of  the  two  and  this  is  the  result :  The  three  swear  that 
at  twelve  o'clock  m.  they  were  all  three  present  at  a  certain  place  and 
there  did  certain  acts ;  but  two  of  the  three  certify  that  at  the  same 
hour  and  place  the  third  was  not  present,  and  on  account  of  his  ab 
sence  the  two  performed  certain  other  and  different  acts.  This  is  like 
a  game  of  "  thimble-  rig,"  and  Watts  is  the  "  little  joker ;"  "now  you 
see  him  and  now  you  don't."  When  required  at  a  certain  point  of 
time  to  be  in  a  certain  place,  he  is  sworn  to  be  present;  when  not 
wanted  he  is  certified  to  be  absent  at  precisely  the  same  place  and 
time.  A  very  convenient  personage  this,  who  can  thus  make  himself 
visible  and  invisible  whenever  the  necessities  of  the  case  require  it. 

This  seems  to  me  to  bo  clear:  Section  133  of  the  law  of  Congress 
has  reference  only  to  a  college  of  electors  which  has  been  once  filled 
and  a  vacancy  has  occurred  subsequently.  The  words  indicate  that 
the  intent  was  to  provide  for  such  a  case  only.  This  is  rendered  cer 
tain  by  *,he  fact  that  the  next  section  provides  for  the  case  of  no 
election  having  been  had,  clearly  showing  that  the  word  "vacancy" 
when  used  in  the  preceding  section  applied  simply  to  the  case  where 
there  had  been  au  election  and  the  place  of  a  person  elected  had  sub 
sequently  become  vacant.  Without  this,  indeed,  it  might  be  claimed, 
with  much  show  of  reason  for  the  construction,  that  a  vacancy  could 
only  happen  when  the  office  had  been  once  occupied. 

The  statute  of  Oregon  clearly  meant  to  deal  with  the  "vacancy" 
indicated  in  section  133  of  the  act  of  Congress,  and  not  with  the  case 
of  the  office  never  having  been  filled,  provided  for  in  the  next  section. 
The  phraseology  shows  this  clearly  ami  excludes  any  other  construc 
tion:  "If  there  shall  be  any  vacancy  occasioned  by  death,  refusal  to 
act,  neglect  to  attend,  or  otherwise  "  by  no  means  refers  to  a  case  of  the 
office  never  having  been  filled  at  all.  "  Or  otherwise"  must  bo  taken 
with  its  surroundings,  and  construed  in  the  light  of  those  surround 
ings  and  of  the  whole  statute  taken  together.  The  old  maxim  "noxci- 
tur  a  sociis,"  if  it  could  ever  apply  in  any  case,  applies  here.  The 
"other  causes"  creating  a  vacancy  must  be  like  causes;  for  no  one 
can,  without  violating  all  the  rules  of  construction  applicable  to 
statutes,  hold  that  the  intent  was  to  provide  by  these  two  words  in 
the  connection  in  which  they  are  used  for  the  case  of  a  failure  to 
elect — a  case  so  entirely  different  from  that  of  a  vacancy  occurring 
after  election  by  reason  of  death  or  any  other  cause.  This  construc 
tion  is  fortified  by  the  opinion  of  the  supreme  court  of  Ehode  Island, 
a  most  respectable  tribunal,  upon  a  case  almost  exactly  like  this, 
both  in  spirit  and  letter,  and  by  the  action  of  the  Legislature  upon 
that  opinion.  That  court  held  that  where  there  had  been  no  election 
because  the  person  voted  for  at  the  time  *held  an  "office  of  trust 
under  the  United  States"  there  was  no  "vacancy,"  and  that  the  place 
must  be  tilled  by  the  Legislature  as  in  the  case  of  a  failure  to  elect. 

It  seems  clear  to  me  that,  inasmuch  as  Watts  held  au  office  of  trust 
and  profit  under  the  United  States  at  the  I  irnc  of  the  election,  he  was 
"  ineligible  "  to  be  elected ;  that  there  was  no  election  of  one  elector  ; 
that  ho  could  not  resign  an  office  which  he  had  never  held ;  that 
there  was  no  "vacancy"  within  the  meaning  of  the  law  of  Oregon; 
and  that  consequently  but  two  votes  from  Oregon  can  be  counted  for 
President  and  Vice-Presideut.  To  me  it  seems  clear  and  beyond  all 
question  that  to  count  more  than  two  votes  would  bo  a  direct  viola 
tion  of  the  Constitution  and  a  violation  of  the  oath  we  have  here 
taken  "  to  decide  whether  the  votes  arc  those  provided  for  by  the 
Constitution,  and  what  persons  were  duly  appointed  electors." 


ELECTORAL  COMMISSION". 


It  seems  to  me  certain  beyond  all  controversy  that  to  set  aside  the 
certificate  of  the  governor  and  the  secretary  of  state  under  the  great 
seal,  and  to  accept  in  its  stead  a  mere  certified  statement  of  votes  with 
no  certificate  of  election,  is  to  openly  and  directly  reverse  and  overrule 
the  decisions  pronounced  by  the  majority  of  this  Commission  in  the 
cases  of  Florida  and  Louisiana;  thus  establishing  different  rules,  ap 
plicable  to  the  same  facts,  in  different  cases. 


SOUTH  CAROLINA. 
The  Commission  having  under  consideration  tho  electoral  vote  of  South  Carolina — 

Mr.  Commissioner  ABBOTT  said  substantially : 

Mr.  PRKSIDENT:  I  desire  to  say  something,  after  what  has  been  said 
here,  upon  the  questions  raised  in  this  case  of  South  Carolina. 

Of  course  no  one  claims  that  the  vote  of  the  Tilden  electors  should 
be  counted.  The  Hayes  electors  undoubtedly  received  a  majority  of 
the  votes  as  they  were  actually  cast.  There  were,  no  doubt,  many 
irregularities  in  conducting  the  elections  and  making  returns  of  votes 
from  the  many  different  precincts*  which,  if  they  had  been  insisted 
upon,  might  have  altered  the  result ;  but  ascertaining  as  nearly  as 
could  be  done  the  number  of  votes  as  actually  cast,  and  disregard 
ing  all  irregularities  connected  with  the  conduct  of  the  elections  and 
the  retun.s  thereof,  a  majority  of  the  votes  cast,  was  lor  tho  Hayes 
electors  ;  therefore,  of  course,  no  question  can  fairly  arise  in  reference 
to  counting  the  vote  of  the  Tilden  electors. 

But  such  a  conclusion  by  no  means  settles  the  case.  There  still 
remains  to  be  determined  the  question,  shall  the  vote  of  the  Hayes 
electors  be  counted  ? 

The  settlement  of  it  involves  several  considerations  and  issues 
quite  as  important  and  interesting  as  any  which  have  been  examined 
and  decided  in  eft  her  of  the  other  cases  before  the  Commission. 

And  first  let  mo  consider  an  objection  to  counting  these  votes 
raised  by  my  friend  from  Virginia,  Mr.  HUNTON.  The  objection  is 
this: 

The  Constitution  expressly  requires  that  the  electors  shall  vote  for 
President  and  Vice-President  by  ballot ;  that  they  shall  name  in  their 
ballots  the  persons  voted  for  as  President,  and  in  distinct  ballots  the 
persons  voted  for  as  Vice-Presideut;  and  that  they  shall  make  distinct 
lists  of  all  persons  voted  for  as  President  and  of  all  persons  voted  for 
as  Vice-Presideut,  and  of  the  number  of  votes  for  each,  which  lists 
they  shall  sign  and  certify,  and  transmit  to  the  President  of  the  Sen 
ate.  The  acts  of  Congress  merely  provide  the  details  for  carrying 
this  requirement  of  the  Constitution  into  effect.  It  is  clear  that,  if 
the  Constitution  is  to  be  regarded,  no  vote  for  President  not  by  ballot 
is  legal  or  can  be  counted.  No  matter  what  may  have  been  the  rea 
son  for  this  requirement,  certain  it  is  that  it  was  considered  important 
enough  to  put  it  into  tho  Constitution,  and  wo  must  regard  it,  unless 
we  are  prepared  to  say  this  Commission  is  not  bound  by  that  anti 
quated  instrument.  I  think  the  majority  have  practically  set  aside, 
nullified  in  fact,  the  mandate  that  no  person  holding  an  office  under 
the  United  States  shall  be  appointed  an  elector,  and  it  may  bH  con* 
sidered  that  we  can  with  equal  right  disregard  the  mandate  that  all 
votes  shall  be  by  ballot.  If  the  Constitution  is  to  prevail,  however, 
not  only  must  the  voting  be  by  ballot,  but  lists  must  be  made  of  the 
persons  thus  voted  for,  and  sent  to  the  President  of  the  Senate.  By 
fair  construction  this  list  must  show  that  the  votes  were  by  ballot, 
because  by  the  Constitution  nothing  but  ballots  are  recognized  as 
votes.  By  the  law  establishing  the  Commission  we  are  to  decide  what 
votes  "are  the  votes  provided  for  by  the  Constitution,"  and  as  no 
vote  is  recognized  by  that  instrument  as  a  vote  for  President  except 
it  be  by  ballot,  it  seems  clear  that  we  must  be  satisfied  whether  the 
votes  under  consideration  were,  as  required  by  the  Constitution,  by 
ballots  or  otherwise. 

It  is  clear  beyond  any  question  that  it  does  not  appear  from  the 
certificate  of  the  Hayes  electors  that  they  voted  by  ballot ;  there  is 
nothing  in  it  from  the  first  to  the  last  word  which  in  any  manner  in 
dicates  that  the  voting  was  viva  TOCCOT  by  ballot.  We  therefore  have 
not  even  a  scintilla  of  evidence  before  us  upon  which  we  can  decide 
as  required  by  law  "  which  are  the  votes  provided  for  by  the  Consti 
tution;"  that  is,  whether  the  votes  were  by  ballot  or  otherwise. 
That  is  a  question  that  must  be  settled  by  evidence  ;  we  cannot  know 
it  by  instiuct  or  intuitiou,  and  there  is  no  evidence  at  all  bearing 
upon  it. 

We  are  told  by  Mr.  Justice  BRADLEY  that  this  objection  is  not  even 
plausible;  certainly  a  somewhat  strong  word  to  apply  to  an  objec 
tion  made  by  a  member  of  this  Commission  upon  his  official  respon 
sibility.  Not  "  plausible,"  forsooth,  to  inquire  whether  the  votes  have 
been  cast  in  the  manner  commanded  by  the  Constitution.  Perhaps 
by  some  it  may  not  be  considered  sensible,  "plausible"  even,  to  per 
mit  the  requirements  of  the  Constitution  to  be  regarded  at  all  in  this 
matter  of  determining  who  is  to  be  President,  but  then  there  are  oth 
ers  of  us  who  do  consider  that  some  evidence  should  be  furnished  to 
show  that  the  provisions  and  requirements  of  the  organic  law  have 
been  complied  with  before  we  give  judgment  in  so  important  an  issue. 
Therefore,  at  the  expense  of  not  being  considered  even  "  plausible" 
by  the  learned  justice,  I  venture  to  discuss  and  consider  this  question. 

When  it  is  considered  important,  vital  enough  to  make  it  a  con 
stitutional  mandate,  that  the  vote  for  President  should  be  cast  in  a 
particular  manner,  why  must  we  not  in  some  way,  by  some  evidence, 


be  satisfied  that  this  requirement  has  been  complied  with  ?  Certainly 
when  wo  are  appointed  by  law  to  decide  "which  are  the  votes  pro 
vided  for  by  the  Constitution  "  some  evidence  should  be  furnished  on 
the  point  at  issue,  so  that  we  may  be  able  to  decide  that  question. 
As  1  have  said,  when  the  Constitution  requires  that  theelec'ors  shall 
make  and  cert  if'y  lists  of  the  persons  voted  for  as  President,  and  Vice- 
President,  and  of  the  number  of  votes  for  each,  a  fair  construction 
would  require  the  certificate  to  state  that  the  votes  were  by  ballots, 
they  being  the  only  votes  that  could  be  legally  cast.  I  do  not  claim 
that  tho  certificate  should  contain  any  set  form  of  words,  but  that  it 
is  necessary  that  in  some  form  of  expression  it  should  set  forth  the 
fact  that  the  votes  were  cast  as  required  by  the  Constitution. 

Now,  by  looking  at  the  return  by  the  Hayes  electors  of  their  acts, 
there  is  nothing  in  it  even  to  indicate  that  they  voted  by  ballot ;  on 
the  contrary,  the  inference  from  it  would  be  that  they  did  not  so  vote. 
It  is  not  even  stated  that  the  vote  was  duly  cast,  or  according  to 
law,  which  might  be  sufficient  in  the  absence  of  anything  to  control 
such  a  statement.  Again,  the  list  purports  to  be  of  "  those  voted  for 
by  tho  electoral  college  of  tho  State  of  South  Carolina,"  rather  indi 
cating  the  result  of  action  by  the  college  as  a  board  than  that  of  each 
individual  member  of  it.  Certainly  there  is  nothing  in  tho  return 
which  gives  me  the  slightest  intimation  that  the  votes  were  cast  by 
ballot  and  nothing  from  which  I  can  fairly  infer  that  such  wan  the 
fact,  and  if  I  decide  they  were  so  cast,  I  do  it  absolutely  without  evi 
dence.  Indeed,  from  the  wording  of  the  certificate,  I  should  be 
strongly  inclined  to  believe  that  the  voting  was  not  by  ballot. 

Having  had  some  opportunity  to  know  how  affairs  are 'conducted 
by  the  party  in  power  in  South  Carolina,  that  knowledge  by  no 
means  leads  me  to  believe  that  any  regard  would  be  paid  by  these 
electors  to  either  law  or  constitution.  Several  of  them  I  saw  when  in 
South  Carolina  this  winter  as  a  member  of  tho  committee  of  inves 
tigation  on  tho  part  of  the  House  of  Representatives,  and  one  at  least 
came  before  that  committee  and  was  examined  as  a  witness,  and  in 
his  examination  disclosed  facts  which  "would  prevent  any  fair  mind 
from  putting  the  slightest  faith  in  his  honesty,  integrity,  or  intelli 
gence.  From  the  certificate  itself,  from  what  I  know  of  the  persons 
who  signed  it,  and  their  disregard  of  all  law,  right,  and  even  decency, 
I  am  strongly  inclined  to  believe  that  the  voting  in  this  case  was  not 
by  ballot ;  certainly  no  member  of  the  Commission  can  say  there  is 
the  slightest  evidence  that  the  votes  were  so  cast.  Although  it  may 
please  Mr.  Justice  BRADLEY  to  say  of  the  objection  of  my  friend  from 
Virginia,  that  it  is  not  even  "plausible."  I  defy  him  to  give,  not 
merely  a  plausible,  but  any  reason,  for  finding  that  the  votes  of  the 
South  Carolina  electors  were  cast  iu  the  manner  required  by  the  Con 
stitution. 

How  then  can  we  find  they  were  cast  by  ballot?  We  must  so  find 
in  order  to  determine  that  they  "  are  the  votes  provided  for  by  the 
Constitution  of  the  United  States,"  which  we  are  bound  to  do  by  our 
official  oaths. 

By  one  Commissioner  it  is  said  this  objection  is  not  even  "  plaus 
ible,"  by  another  that  it  is  merely  technical  and  so  ought  not  to  weigh 
in  the  consideration  of  questions  so  great  and  important  as  are  here 
at  issue.  The  answer  is  plain.  The  objection  is  founded  on  the  Con 
stitution  itself,  and  its  only  purpose  is  to  require  a  compliance  with 
its  express  mandates.  If  the  objection  is  not  plausible,  if  it  is  tech 
nical,  it  is  the  fault  of  the  Constitution  in  being  technical  and  not 
even  plausible  in  its  requirements. 

But  there  are  other  objections  to  the  votes  of  the  Hayes  electors 
which  involve  some  of  the  most  important  questions  and  issues  which 
can  ever  present  themselves  for  consideration  and  determination 
where  the  government  is  constituted  as  is  ours — questions  and  issues 
fundamental,  and  involving  the  very  existence  of  our  institutions  in 
their  present  form.  If  you  decide  to  reject  the  proofs  offered  iu  this 
case,  and  count  the  vote,  you  will  establish  a  principle  by  which,  if 
acted  on  in  the  future,,  there  may  never  be  another  free  election  of 
President  of  the  United  States  by  the  people  thereof;  a  precedent  by 
which  any  person  or  party  in  power  may  forever  perpetuate  that 
power  by  the  use  of  the  Army  of  the  United  States. 

Consider  the  proofs  which  are  offered  here,  and  which  we  are  told 
by  the  majority  we  must  reject,  and  count  the  vote  of  South  Caro 
lina,  notwithstanding  the  facts  offered  to  he  proved. 

In  the  first  place  it  is  alleged,  and  proof  of  the  allegation  is  proffered, 
that  although  the  constitution  of  the  State  which  was  adopted  in  1^68 
commands  the  Legislature  to  establish  a  registration  of  voters,  the 
Legislature  has  persistently  refused  to  obey  this  mandate,  it  being 
largely  republican,  for  the  sole  purpose  of  keeping  possession  of  the 
government  by  a  resort  to  repeating  and  double  voting.  Certainly 
the  laws  of  that  State  regulating  voting,  if  intended  expressly  to  en 
courage  repeating  and  frauds  at  elections,  could  not  be  better  con 
trived  to  accomplish  such  a  purpose.  The  counties  are  «ach  divided 
into  many  voting-precincts,  one  into  over  fifty,  and  every  citizen  of 
the  county  can  vote  in  any  precinct  without  regard  to  the  parish,  pre 
cinct,  or  town  in  which  he 'resides.  But  although  I  his  is  reprehensible 
in  the  highest  degree,  and  shows  the  fraudulent  intent  of  the  party  in 
power,  I  agree  it  does  not  furnish  a  sufficient  reason  to  reject  tho  vote 
of  the  State.  The  law  certainly  is  mandatory  upon  the  Legislature; 
but  if  that  body  refuses  to  obey,  to  do  its  duty  and  execute  the  man 
date  by  making  a  law  to  provide  registration,  such  refusal,  however 
wicked  and  fraudulent,  cannot  deprive  the  State  and  its  people  of 
the  right  to  vote.  Any  other  construction  would  put  an  end  to  tho 


238 


ELECTORAL  COMMISSION. 


government  and  prevent  the  people  from  electing  any  officers,  State 
or  national. 

The  next  offer  of  proof  is,  that  the  troops  of  the  United  Stales 
were  sent  to  South  Carolina  before  and  stationed  near  the  polls  at 
the  election,  by  the  President  of  the  United  States,  solely  for  the  pur 
pose  of  overawing  a  portion  of  the  people  and  to  compel  them  to 
vote  to  sustain  the  republican  party,  and  that  this  purpose  for  so 
sending  and  stationing  the  troops  was  accomplished ;  that  the  people 
were  overawed  and  compelled  to  vote  to  sustain  the  party  so  using  the 
troops,  and  that  there  was  in  consequence  thereof  no  free  election, 
no  such  election  as  is  required  by  the  law  and  Constitution  of  both 
the  State  and  United  States. 

It  is  further  offered  to  bo  proved  that  the  State  militia,  composed 
almost,  entirely  of  ignorant  negroes,  was  stationed  at  many  of  the 
polls,  in  fact  surrounding  them,  to  prevent  a  portion  of  the  people 
from  voting  the  democratic  ticket,  and  by  violence  did  succeed  in  so 
doing  ;  that  armed  bauds  of  negroes  also  surrounded  the  voting-places 
in  some  counties,  and  by  violence  and  force  prevented  thousands  of 
persons  from  voting  with  the  democrats — a  much  larger  number,  in 
fact,  than  the  majority  claimed  for  the  Hayes  electors. 

The  only  answer  made  to  all  this  is  that  the  two  Houses  of  Con 
gress  have  no  right  to  inquire  into  these  allegations,  no  right  to  as 
certain  whether  these  offers  of  proof  can  be  substantiated. 

Ir  the  Florida  and  Louisiana  cases  wo  were  told,  and  a  majority  of 
this  Commission  has  so  decided,  that  by  the  Constitution,  by  our 
organic  law,  neither  the  two  Houses  of  Congress,  the  States,  nor 
their  Legislatures,  nor  their  courts,  nor  their  executives,  had  any 
power  to  inquire  whether  the  votes  of  any  State  had  been  cast  by 
persons  never  in  fact  elected,  bnt  who  obtained  a  certificate  of  elec 
tion  by  the  grossest  frauds  and  bribery  of  the  State  returning  boards  ; 
and  that  Congress,  the  whole  country  indeed,  must  look  on  in  quiet 
and  contentment,  able  to  do  nothing  to  prevent  their  Chief  Magis 
trate  being  seated  in  office  not  by  law  and  the  voice  of  the  people, 
but  by  fraud  and  corrupt  practices. 

Those  decisions,  by  which  fraud  is  justified  and  sanctified,  are  bad 
enough,  bnt  the  proposed  resolutions  are  even  worse.  By  the  first, 
the  Presidency  can  be  bought  and  sold,  even  put  up  at  auction,  openly 
and  in  the  face  of  the  world,  and  so  weak  and  powerless  are  our  Con 
stitution  and  laws,  it  cannot  be  prevented  or  remedied. 

Some  one  has  said,  Gibbon,  I  think,  that  when  the  imperial  purple 
at  Homo  was  sold  by  the  pretorian  guard  it  was  conclusive  evidence 
that  all  reason  for  the  Roman  empire  continuing  to  exist  had  ceased. 
No  people  who  submit  to  have  their  chief  magistracy  bought  and 
sold  have  any  right  to  exist  as  a  nation.  What  shall  we  say,  then, 
of  our  own  condition?  In  the  Louisiana  case  it  was  offered  to  be 
proved,  and  the  offer  being  rejected  it  must  be  taken  as  true,  that  the 
vote  of  that  State  for  the  republican  candidate  was  obtained  by 
bribery,  perjury,  and  forgery,  and  this  Commission  decided  that  a 
vote  so  obtained  was  as  good  as  one  absolutely  pure  and  honest,  and 
that  the  people  must  submit  to  a  President  though  he  might  owe  his 
election  to  such  crimes.  By  that  decision,  we  are  told  a  candidate 
may  openly  buy  the  voto  of  any  State  from  such  a  returning  board 
as  has  been  established  in  perpetuity  in  Louisiana  and  agree  that  the 
money  therefor  shall  be  paid  when  the  sale  is  consummated  by  the 
count  of  the  two  Houses  of  Congress ;  and,  for  augl'*  I  can  see,  ho 
can  deposit  the  money  to  be  paid  on  the  Speaker's  desk,  to  bo  de 
livered  when  the  count  is  complete,  and  call  upon  the  assembled  Sen 
ators  and  Representatives  to  witness  the  payment.  All  this  we  are 
told  would  be  constitutional  and  right  under  the  law.  And  now,  as 
if  it  was  not  quite  enough  of  infamy  and  disgrace  to  the  country  to 
have  it  established  that  the  Presidency  can  be  bought  without  hiudcr- 
ance  or  objection,  we  are  told  that  the  President,  to  perpetuate  him 
self  or  his  party  in  power,  may  use  the  military  forces  of  the  United 
States  to  compel  the  people  of  a  State  to  vote  as  he  desires  ;  that  Iho 
militia  of  a  State  may  bo  used  to  the  same  end,  and  that  votes  so 
obtained  by  an  election  controlled  and  dominated  by  military  force 
must  be  counted  precisely  as  pure  and  honest  votes  are  counted  ;  and 
again,  that  there  is  no  power  in  Congress  or  in  any  other  person  or 
bodies  of  persons  to  prevent  such  a  consummation  of  wrong  and  wick 
edness.  If  any  doctrine  more  utterly  destructive  to  a  free  govern 
ment  and  free  institutions — to  a  government  of  the  people,  for  the 
people,  and  by  the  people — could  bo  devised  and  put  forth  to  the 
world,  I  certainly  cannot  conceive  of  it.  The  doctrine  is  utterly  and 
entirely  damnable.  It  will  bear  the  palm  for  unmitigated  wicked 
ness  for  all  time  to  come.  By  it  a  free  government  may  be  turned 
into  the  worst  of  despotisms.  By  it  the  people  may  be  deprived  of 
all  their  rights  and  liberties,  and  military  force  and  power  be  made 
to  usurp  the  place  of  law  and  justice.  It  is  a  high  crime  against 
liberty  and  good  government.  It  proclaims  to  the  world  that  our 
system  of  government  is  a  failure  ;  that  it  has  ceased  to  be  one  regu 
lated  by  law,  and  administered  according  to  the  will  of  the  people 
expressed  under  and  according  to  the  law,  and  has  become  a  despot 
ism,  where  law  has  given  place  to  force  and  the  will  of  the  people 
exists  only  in  name,  not  as  a  controlling  factor,  not  in  verity  and  fact. 

Indeed,  this  doctrine,  if  established,  caps  the  climax  of  wrong.  We 
have  had  bribery,  forgery,  perjury,  and  all  manner  of  corrupt  prac 
tices  justified  by  the  decision  of  a  majority  of  this  Commission  as  a 
proper  means  to  obtain  the  Presidency.  We  are  now  told  that  the 
Army  of  the  United  States  may  be  used  to  force  the  people  to  vote, 


not  as  they  wish,  but  as  others  wish.  If  this  doctrine  is  adopted  and 
established,  the  measure  of  our  woes  and  disgrace  as  well,  is  full  to 
the  brim. 

Its  greatest  foes  never  before  have  claimed  that  onr  Constitution 
Avas  so  miserably  weak  and  defective,  such  a  piece  of  bungled,  botched 
work,  as  we  are  now  told  it  is  by  a  majority  of  this  Commission. 

In  a  free  government,  professing  to  be  a  government  of  the  people 
by  the  people,  whose  boast  is  that  the  rights  and  liberties  of  all  are 
equally  protected  by  and  under  the  law  and  that  all  wrongs  and  abuses 
are  to  bo  righted  peaceably  by  an  appeal  to  the  ballot-box,  how 
strange,  indeed  how  criminal  it  is  to  claim  and  act  upon  the  claim 
that  '.ho  military  arm  may  be  used  with  impunity  against  all  law  and 
right  for  the  very  object  and  purpose  of  putting  an  end  to  free  elec 
tions — which  means  nothing  more  nor  less  than  putting  an  end  to  the 
government  of  the  people ;  and  that  there  is  no  way  of  preventing  it 
known  to  man,  that  the  Constitution  and  law  furnish  no  defense 
against  so  great  an  offense  against  freedom  and  free  government. 

Such  a  doctrine  would  not  and  ought  not  to  bo  tolerated  for  a  mo 
ment  where  even  the  smallest  show  is  kept  up  of  a  regard  for  the  will 
of  the  people  in  governmental  affairs.  A  doctrine  like  this  put  forth 
and  acted  on  by  the  King  of  Great  Britain  would  change  the  reigning 
dynasty  as  effectually  as  did  no  worse  attempt  to  establish  despotism 
change  it  in  1688. 

In  addition  to  this  employment  of  the  Army  of  the  United  States, 
wo  have  the  offer  of  proof  that  the  State  militia  were  used  for  the 
same  purpose,  that  armed  bands  of  negroes  surrounded  the  polls,  pre 
venting  people  of  their  own  race  from  voting  as  they  wished  to  do, 
and  resorting  to  all  manner  of  violence  to  accomplish  such  a  result ; 
in  fact,  the  offer  of  proof  is  such  that,  if  substantiated,  au  election 
holde-n  under  such  circumstances  is  worse  than  a  farce,  it  is  a  dis 
grace  to  any  civilization  however  imperfect,  and  would  bring  our 
form  of  government  into  most  justly  merited  contempt.  Indeed,  if  it 
be  true  that  such  an  election  is  to  be  tolerated  and  its  results  are  to 
be  established  and  prevail,  it  furnishes  conclusive  proof  that  our  in 
stitutions,  of  which  so  much  is  boasted,  have  failed ;  and  it  might, 
with  a  show  of  reason,  be  claimed  they  ought  to  give  way  to  some 
other  form  of  government  which  will  at  least  give  peace  and  protec 
tion  to  persons  and  property. 

From  all  I  could  learn  while  in  South  Carolina,  the  allegations  in 
the  offers  of  proof  are  substantially  true,  certainly  as  to  parts  of  the 
State,  and  I  am  sure  no  such  election  was  holden  the  results  of  which 
ought  to  affect  in  any  way  the  rights  of  the  people  of  the  other  States. 

The  colored  people  were  told  and  believed  that  the  United  States 
troops  were  sent  into  the  State  to  compel  them  to  vote  the  republican 
ticket  and  shoot  all  who  attempted  to  vote  with  the  democrats. 
This  belief  I  have  no  doubt  was  general  among  the  blacks.  Of  course 
there  were  many  too  intelligent  to  give  it  credit,  but  the  great  mass 
gave  it  full  faith  and  credence.  Any  negro  who  manifested  a  desire 
to  act  with  the  democrats  was  completely  ostracized,  and  in  addition 
assaulted  and  beaten  by  those  of  his  own  race  whenever  the  oppor 
tunity  to  do  it  occurred.  Negro  wives  left  their  husbands  if  the 
husbands  left  the  republican  party.  Negro  men  attempting  to 
vote  the  democratic  ticket  were  attacked  at  the  polls  by  negro  wo 
men,  beaten,  stripped  naked,  and  driven  off.  In  many  places  the 
polls  were  surrounded  by  organized  bands  of  armed  blacks,  who 
assaulted,  beat,  and  forcibly  drove  off  all  of  their  own  race  who  at 
tempted  to  vote  against  the  republicans,  or  compelled  them  to  vote 
that  ticket.  I  have  no  doubt  that  many  thousands  of  colored  voters 
would  have  voted  the  democratic  ticket  had  they  not  beeii  either 
driven  off  or  compelled  by  violence  and  fear  to  vote  for  the  repub 
licans,  and  but  for  that  lawlessness  and  violence  the  Hayes  electors, 
instead  of  receiving  a  majority  of  some  eight  hundred,  would  have 
been  defeated  by  some  thousands. 

But  one  answer  suggested  to  this  is,  that  the  democrats,  too,  re 
sorted  to  force,  violence,  threats,  and  intimidation  to  compel  the 
blacks  to  vote  their  ticket. 

Does  not  this  tend,  if  the  charge  bo  true,  to  prove  conclusively  the 
proposition  we  support,  that  the  vote  of  the  State  should  not  be 
counted,  because  by  the  illegal  and  injustifiablo  acts  of  both  polit 
ical  parties  a  free  election  was  rendered  impossible? 

The  answer  is  no  answer.  Its  reason  and  logic  is  the  reason  and 
logic  of  the  boy  charged  by  his  fellow  with  wrong-doing,  who  replies 
to  it,  "  You  are  another." 

I  have  no  doubt  the  charge,  to  some  extent,  is  well  founded.  It 
would  be  strange  if  it  was  not  so.  The  provocations  were  so  great, 
the  evils  to  bo  remedied  were  so  terrible,  the  wrongs  to  be  righted  so 
subversive  of  all  governments,  that  no  doubt  mauy  thing  were  dona 
by  the  democrats  that  would  not  be  toleialed  in  a  different  condition 
of  affairs,  and  cannot  be  justified.  But  I  believe  ten  negroes  were 
compelled  to  vote  for  the  republicans  by  the  violence  and  lawlessness 
of  their  own  race  for  one  who  was  compelled  to  vote  against  his  will 
for  the  democrats  by  their  unlawful  practices. 

But  while  I  admit  there  was  to  some  extent  a  resort  to  unjustifi 
able  means  by  democrats  to  control  the  colored  vote,  beyond  all  ques 
tion  this  was  not  sanctioned  by  their  candidates  for  office  or  by  any 
of  the  leading,  influential  men  of  that  party.  Governor  Hampton, 
Colonel  Haskell,  the  chairman  of  the  State  committee,  and  every  other 
candidate  and  leading  man  of  the  party,  I  am  satisfied,  exerted  all 
their  power  and  influence  in  favor  of  peace  and  a  perfectly  free  elec- 


ELECTORAL  COMMISSION. 


239 


tlon.  But  such  was  the  condition  of  things  in  the  State,  what  with 
the  United  States  troops  ind  the  State  militia,  composed  mainly  of 
the  most  ignorant  blacks,  ,vhat  with  armed  bands  of  negroes  in  many 
precincts,  dominating  and  abusing  all  their  own  race  who  dared  even 
to  try  to  act  independently,  urged  on  by  bands  of  carpet-baggers, 
thieves,  and  native  "  scalawags,"  as  they  are  called,  who  knew  if  they 
were  defeated  flight  or  the  penitentiary  was  their  only  safety,  a  free 
election  was  an  utter  impossibility.  Certainly  no  election  holden 
under  such  circumstances  and  with  such  surroundings  ought  ever  to 
affect  the  rights  of  u  single  human  being  outside  the  limits  of  the 
State;  to  impose  on  the  other  States  a  Chief  Magistrate  by  the  means 
and  appliances  there  resorted  to  would  bring  our  whole  system  of 
elections  into  merited  contempt  and  disgrace. 

Let  me  say  a  few  words  in  reference  to  another  justification  put 
forth  for  the  presence  of  the  Federal  troops  in  South  Carolina.  It  is 
(said  that  the  people  of  South  Carolina  were  in  a  state  of  insurrection 
against  the  Government,  that  the  governor  was  powerless  to  suppress 
it,  and  called  on  the  President  for  aid  under  the  provisions  of  the 
Constitution.  This  is  offered  to  bo  proved  to  be  false;  but  for  the 

1>urpose  of  considering  the  justification,  and  its  effect  on  the  election, 
et  it  be  taken  to  be  true.  The  State,  then,  was  not  only  controlled 
by  turbulence  and  violence,  but  an  insurrection  against  the  govern 
ment  and  the  execution  of  the  laws  prevailed  over  the  constituted 
authorities,  which  was  beyond  their  power  to  quell  and  suppress. 
Such  is  the  justification  for  sending  the  troops.  The  governor,  it  is 
said,  asked  for  them,  for  ho,  with  all  the  authority  of  the  State  and 
its  laws,  was  powerless. 

Is  an  election  holden  when  the  people  of  the  State  are  in  open  in 
surrection  against  its  authorities,  so  general  and  wide-spread  that  they 
are  powerless  and  the  United  States  are  called  on  to  suppress  it,  an 
election  at  all,  in  any  sense  known  to  our  law  ?  How  can  it  be 
claimed  with  any  show  of  reason  that  when  the  people  of  a  State  are 
in  actual  insurrection  against  its  authorities  they  can  hold  a  valid 
election,  by  which  the  rights  of  not  only  their  own  State,  but  of  all 
the  other  States,  are  to  be  affected,  nay,  possibly  controlled  ?  To 
hold  such  an  election  valid  to  affect  the  rights  of  the  people  of  the 
whole  country  is  against  the  whole  spirit  and  theory  of  our  Govern 
ment. 

Therefore,  whether  the  troops  were  rightfully  sent  to  South  Caro 
lina  because  there  existed  there  an  insurrection  too  strong  to  be  put 
down  by  the  State  authorities,  or  whether  no  such  insurrection  ex 
isted,  and  the  troops  were  wrongfully  sent  there  to  overawe  a  part  of 
the  voters  and  compel  them  to  support  the  party  in  power,  is  per 
haps  unimportant  to  determine,  for  in  either  case  the  reason  is  equally 
strong  against  giving  effect  to  an  election  holden  under  such  circum 
stances  and  with  such  surroundings. 

In  whatever  light,  then,  you  look  upon  the  election  in  South  Caro 
lina  for  presidential  electors  on  the  7tli  of  last  November,  and  its  re 
sult,  with  the  allegations  and  offers  of  proof  before  you,  to  count  the 
vote  of  the  Hayes  electors  would  be  a  crime  against  freedom  and 
free  governments— as  great  an  offense,  if  possible,  as  that  committed 
by  counting  the  votes  of  Louisiana. 


Remarks  of  ITIr.  Commissioner  Boar. 

FLORIDA. 

The  Electoral  Commission  bavins  under  consideration  the  question  of  counting 
the  electoral  vote  of  the  State  of  Florida — 

Mr.  Commissioner  HOAR  said  : 

Mr.  PRESIDENT  :  The  question  before  the  Commission  is  not  who 
have  been  lawfully  elected  President  and  Vice-President  of  the  United 
States.  We  are  to  decide  who  are  appointed  electors  by  the  State  of 
Florida ;  and  are  now  to  consider  one  only  of  the  steps  required  in 
arriving  at  that  decision. 

The  election  of  President  is  accomplished  by  a  mechanism  wholly 
created  by  the  Constitution,  unlike  anything  else  in  the  world,  by 
•which  the  executive  power  of  the  country  is  to  be  continued  without 
interruption,  and  rendered  perpetual,  by  elections  to  take  place  once 
in  four  years  by  persons  appointed  by  thirty-eight  other  sovereignties ; 
the  appointment,  election,  ascertainment  of  the  result,  and  induction 
into  office  of  the  person  elected  being  all  required  to  be  completed 
within  the  space  of  a  few  weeks.  Whatever  aid  we  may  derive  from 
the  common  or  parliamentary  law,  or  from  the  practice  of  courts,  it 
is  obvious  that  the  best  test  of  the  question  whether  a  particular 
process  belongs  in  this  complicated  machine  is  the  inquiry  whether 
if  it  be  introduced  the  machine  will  work ;  whether  it  will  help  or 
prevent  the  accomplishment  of  the  result. 

The  Constitution  provides  that  the  electors  of  President  and  Vice- 
President  shall  be  appointed  by  the  States  in  snch  manner  as  their 
Legislatures  may  direct.  These  electors,  when  appointed,  become 
clothed  with  a  right  of  suffrage  which  they  are  to  exercise  on  the 
same  day  in  all  the  States.  There  must  enter  into  the  act  of  appoint 
ment  the  exercise  of  the  power  of  determining  who  is  appointed. 
This  power  is  also  lodged  in  the  State  and  must  be  exercised  as  it 
provides  and  before  the  casting  the  vote.  The  vote  cannot  be  cost 
first  and  the  appointment  consummated  afterward. 


The  law  of  the  State  of  Florida  provides  that  the  duo  appointment  of 
electors  shall  be  ascertained  and  determined  by  a  board  composed  of 
certain  designated  State  officers,  who,  having  made  a  canvass,  "  .shall 
determine  the  result  of  the  election  as  shown  by  the  returns;"  *  *  * 
"shall  make  and  sign  a  certificate  and  declare  who  shall  have  been 
elected,  which  certificate  shall  be  recorded."  *  *  *  "  When  any 
person  shall  bo  elected  to  the  office  of  elector  of  President  and  Vice- 
President,  the  governor  shall  make  out,  sign,  and  cause  to  be  sealed 
with  the  seal  of  the  State  and  transmit  to  such  person  a  certificate 
of  his  election."  It  seems  to  me  that  this  determination  of  the  can 
vassing  board  is  in  the  nature  of  a  judgment.  It  must  be  performed 
before  the  electors  receive  their  authority  or  cast  their  votes.  It  is 
the  conclusive  evidence  of  their  authority.  When  the  tribunal  on 
whom  the  State  has  imposed  the  duty  has  ascertained  and  declared 
who  have  been  lawfully  appointed  electors,  and  such  electors  have 
cast  their  votes  and  duly  certified  the  result,  the  State  has  performed 
its  whole  constitutional  office,  and  isfunctus  officio  in  that  regard. 

I  do  not  think  that  any  evidence  can  be  received  to  overcome  the 
effect  of  this  determination  of  the  State  authority  as  to  who  were 
lawfully  appointed,  made  before  the  electors  cast  their  vote  on  the 
6th  of  December.  Further,  I  do  not  think  that  the  evidence  offered 
or  suggested  by  the  counsel  or  objectors  tends  to  overcome  it. 

It  is  true  that  votes  are  to  be  counted,  But  it  is  the  votes  of  those 
persons  whom  the  proper  authority  has  determined  and  certified  were 
entitled  to  cast  them,  and  not  the  votes  of  those  persons  whom  the 
two  Houses  of  Congress  or  either  of  them  may  think  were  so  entitled. 

It  seems  to  me  clear  that  the  power  to  judge  of  the  elections,  re 
turns,  and  qualifications  of  presidential  electors  is  not  given  by'the 
Constitution  to  the  two  Houses  of  Congress,  or  either  of  them.  The 
power  which  it  was  deemed  necessary  carefully  to  express  in  regard 
to  their  own  members,  it  could  hardly  have  been  intended  to  bestow 
by  implication  from  the  right  to  be  present  when  the  certificates  are 
opened,  or  even  from  the  right  to  count  the  votes.  It  is  a  power  which 
it  is  utterly  impracticable  for  Congress  to  exercise  between  the  time 
when  the  certificates  are  brought  officially  to  its  knowledge  and  the 
time  when  it  must  be  determined  who  has  been  chosen  President. 
Indeed,  the  distinguished  counsel  who  closed  for  the  Tildeu  elect 
ors  conceded  this  difficulty,  to  which  his  only  answer  is  the  sugges 
tion  that  such  an  inquiry,  like  the  right  to  the  writ  of  quo  wan-auto, 
must  be  limited  by  discretion  ;  in  other  words,  that  the  two  Houses 
may  go  as  far  into  the  inquiry,  who  were  duly  chosen  electors  in  any 
State,  as  they  in  their  discretion  think  fit,  or  as  time  will  permit. 

The  statement  of  this  position  seems  to  be  its  refutation.  We  are 
now  discussing  a  question  of  jurisdiction.  In  whom  is  the  power  to 
determine  who  have  been  appointed  electors — in  Congress  or  in  the 
State?  It  is  gravely  answered  that  it  is  in  Congress  when  the  State 
to  be  investigated  is  near  the  seat  of  Government,  or  the  inquiry  re 
lates  to  a  few  election  precincts  only,  but  is  to  be  left  to  the  State 
in  other  cases;  that  Congress  may  exert  a  power  of  inquiry  into  an 
election  in  Delaware  which  is  impossible  as  to  California,  or  may  in 
quire  into  one  election  district  in  New  York  but  cannot  into  twenty 
or  a  hundred.  This  claim  would  never  have  arisen  in  any  man's 
mind  before  the  days  of  railroads  and  telegraphs.  Such  investiga 
tions,  possible  only  in  the  mo'st  liiniteddogreo  now,  would  have  been 
wholly  impossible  as  to  most  of  the  States  when  the  Constitution  was 
adopted. 

It  is  asked  is  there  no  remedy  if  the  officers  to  whom  the  States  in 
trust  the  power  of  ascertaining  and  declaring  the  result  of  the  elec 
tion  act  fraudulently  or  make  mistakes?  The  answer  is  that  the  Con 
stitution  of  the  United  States  gives  no  jurisdiction  to  Congress  when 
the  certificates  are  opened  and  the  votes  are  to  be  counted  to  correct 
such  mistakes  or  frauds.  A  like  question  may  be  put  as  to  every  pub 
lic  .authority  in  which  a  final  power  of  decision  is  lodged.  The  danger 
of  mistake  or  fraud  is  surely  quite  as  great  if  the  final  power  be 
lodged  in  Congress,  and  theframersof  the  Constitution  acted  in  noth 
ing  more  wisely  than  in  removing  from  Congress  all  power  over  the 
election  of  President. 

But  it  is  said  that  the  State  board  of  canvassers  had  no  jurisdiction 
to  reject  the  votes  of  certain  precincts  and  that  their  decision  is  only 
binding  when  they  acted  within  their  jurisdiction.  This  is  an  erro 
neous  application  of  the  term  "jurisdiction."  The  jurisdiction  of  that 
board  is  to  determine  and  declare  who  were  chosen  electors.  The  re 
jection  or  computation  of  certain  votes,  whether  right  or  wrong,  was 
but  a  determination  what  evidence  or  elements  they  would  take  into 
account  in  the  exercise  of  their  jurisdiction. 

Some  of  the  arguments  have  proceeded  on  the  supposition  that  the 
question  is  whether  evidence  that  the  certificate  of  the  governor  was 
fraudulent  might  be  received.  But  the  certificate  of  the  governor 
was,  on  the  admission  of  both  sides,  exactly  what  his  duty  required  of 
him.  It  will  not  be  claimed  that  the  governor  in  his  single  capacity 
could  re-examine  the  action  of  the  canvassing  board  and  certify  to 
anything  other  than  the  effect  of  its  record.  The  offer  in  substance 
is  that  stated  by  Mr.  O'Conor  under  his  fifth  head,  "that  the  board  of 
State  canvassers,  acting  on  certain  erroneous  views  in  making  their 
canvass,  rejected  certain  returns."  But  this  seems  to  me  immaterial, 
first,  because  the  questions  whether  those  views  were  sound  or  erro 
neous  must  be  determined  by  the  judgment  of  that  board  and  not  of 
Congress ;  and  second,  because  the  evidence  would  not  affect  the  count 
of  the  vote  unless  it  were  further  shown  that  the  actual  result  of  the 


240 


ELECTORAL  COMMISSION. 


election  was  declared  otherwise  than  truly,  to  show  which  must  open 
to  both  sides  the  whole  question  as  tothe  votes  actually  cast  for  elect 
ors  in  Florida,  a  question  Avhich  the  two  Houses  of  Congress  cannot 
investigate  or  determine. 

The,  suggestion  made  by  the  counsel  is  that  the  canvassing  board 
"  acted  ou  certain  erroneous  views."  The  counsel  in  their  oral  argu 
ment  propose  to  show  that  the  action  of  the  State  canvassers  was 
fraudulent,  by  which  I  suppose  they  mean  that  they  knew  that  these 
views  were  erroneous  when  they  acted  on  them. 

It  is  vehemently  urged  that  to  refuse  to  go  behind  the  decision  of 
the  State  authority,  however  affected  by  mistake  or  fraud,  and  inquire 
into  the  truth,  may  lead  to  the  establishment  of  the  most  flagrant  in 
justice  and  wrong.  But  the  position  of  our  opponents  leads  them  to 
a  like  result.  Commissioners  CLIFFORD  and  FIELD  in  their  written 
opinions  each  distinctly  assert  that  they  hold  that  the  judgment  of 
the  supreme  court  of  Florida  rendered  long  after  the  votes  for  Presi 
dent  were  cast  by  the  electors  is  conclusive  as  to  who  were  duly 
chosen  euch  electors,  and  that  no  evidence  whatever  can  be  received 
against  such  judgment.  Mr.  Commissioner  BAYARD,  in  answer  to  my 
question  put  to  him  in  the  presence  of  the  Commission,  frankly  an 
swered  that  he  deemed  such  judgment  conclusive.  Both  sides,  then, 
agree  in  this,  that  the  decision  of  a  State  tribunal  upon  this  matter 
is  conclusive  and  binding  upon  all  mankind,  and  that  Congress  has 
no  po-ver  to  go  behind  it.  The  difference  between  these  gentlemen 
and  myself  is  this:  they  attribute  that  conclusive  effect  to  the  judg 
ment  rendered  afterward,  when  all  the  electors  had  cast  their  votes, 
of  a  court  deriving  its  authority  only  by  implication  from  the  general 
power  to  issue  writs  of  quo  warranlo,  while  I  attribute  it  to  the  de 
termination  made  before  the  electors,  discharged  their  office,  at  the 
time  when  the  State  law  expressly  required  it  to  be  made,  and  by  the 
persons  in  whom  the  State  had  expressly  reposed  that  authority. 

It  does  not  seem  to  me  that  the  proceedings  of  the  State  Legisla 
ture  or  of  the  State  court  which  have  been  offered  in  evidence  are 
of  any  validity  whatever ;  and  this,  without  reference  to  the  ques 
tion  whether  the  judgment  of  the  court  has  been  vacated  by  an  ap 
peal,  or  whether  the  statute  of  Florida  confines  the  effect  of  judg 
ment  on  quo  warranlo  to  which  the  attorney-general  is  not  a  party  to 
private  rights.  I  think  the  function  of  elector  under  the  Constitu 
tion  of  the  United  States  must  be  performed  and  ended  on  a  day 
certain,  and  that  when  the  act  has  been  performed  its  validity 
cannot  be  affected  by  anything  which  occurs  afterward.  The  right 
of  a  State  to  withdraw  the  vote  of  its  electors  for  President  in 
obedience  to  the  decree  of  a  court  entered  afterward  will  not  bear 
discussion. 

I  do  not  rely  upon  the  doctrine  which  recognizes  as  valid  in  law 
the  acts  of  public  or  corporate  officers,  who,  without  rightful  tiUe, 
perform  the  functions  of  an  office  with  which  they  are  in  part 
clothed.  Unless  the  decision  of  the  canvassing  board  and  the  certifi 
cate  of  Governor  Stearns  to  them  thereupon  issued  made  the  persons 
so  found  and  certified  to  be  chosen  the  dc  jure  electors  of  Florida  ou 
the  6th  of  December,  I  do  not  see  that  they  were  any  more  fully 
clothed  with  the  office  than  their  competitors.  Each  of  the  sets  of 
electors  who  claim  to  have  cast  their  votes  in  Florida  did  everything 
which  was  necessary  to  the  entire  execution  of  the  office  of  presi 
dential  elector. 

The  presidential  electors  of  a  State  are  required  by  the  Constitu 
tion  to  meet,  and  were  doubtless  in  the  beginning  expected  to  consult. 
They  are  required  by^the  Constitution  jointly  to  make,  sign,  and  cer 
tify  lists,  and  jointly  to  seal  and  transmit  them;  they  are  required 
by  the  act  of  Congress  jointly  to  make  certain  certificates  on  the  back 
of  their  lists  and  a  majority  of  them  jointly  to  appoint  a  messenger. 
It  may  well  be  that  one  person,  or  more,  less  than  a  majority  of  the 
whole  number,  meeting  with  the  others,  recognized  by  the  others  as 
entitled  to  take  part  with  them  in  their  consultations  and  in  these 
joint  acts,  and  actually  so  taking  part,  may  be  held  to  be  an  elector 
or  electors  <le  fado.  But  where  two  boards  contesting  for  an  office 
•whose  functions  by  law  expire  when  one  act  has  been  performed  and 
certified,  each  at  the  lawful  time  and  place,  does  everything  which  is 
necessary  to  the  entire  execution  of  the  office,  there  being  no  corpo 
rate  or  official  property  or  seal  or  function  from  which  either  excludes 
the  other,  it  seems  to  me  that  that  board  or  college  which  is  the  board 
or  college  dejiire  is  also  the  board  or  college  de  facto. 

Upon  the  whole  matter  therefore  I  am  of  opinion  that  the  appoint 
ment  of  electors  and  the  ascertaining  who  has  been  appointed  is  the 
sole  and  exclusive  prerogative  of  the  State.  The  State  acts  by  such 
agencies  as  it  selects.  The  powers  conferred  by  the  State  upon  these 
agencies  cannot  be  exercised  by  Congress.  To  usurp  them  for  the 
purpose  of  righting  alleged  wrongs  would  be  for  this  Commission, 
which  has  only  the  powers  of  Congress,  to  commit  the  very  wrong 
which  is  imputed  to  the  returning  boards  in  some  of  the  States. 
When  the  agencies  which  the  State  has  selected  have  acted  the 
Stare  has  acted;  no  power  can  reverse  its  action  for  mistake  in  law  or 
fact,  for  fraud,  or  for  any  cause  whatever,  unless  it  be  a  power  higher 
than  the  State  on  whom  the  Constitution  has  expressly  conferred 
such  authority.  But  there  is  for  this  purpose  no  such  power  higher 
than  the  State,  and  the  President  of  the  Senate  and  Congress  are  but 
the  mere  servants  of  the  State's  will  and  registers  of  its  action,  with 
power  only  to  open  the  certificates  and  count  the  votes  of  the  elect 
ors  whom  the  State  authority  has  appointed  and  certified. 


Remarks  of  ITIr.  Commissioner  Oarficld. 


The  Commission  having  under  consideration  the  request  of  counsel  to  present 
evidenco  to  prove  that  the  State  board  of  canvassers  of  Florida  acted  upon  errone 
ous  views  in  canvassing  the  returns  of  votes  from  the  several  counties — 

Mr.  Commissioner  GARFIELD  said  : 

Mr.  PRESIDENT  :  We  are  called  upon  to  determine  a  rule  of  evidence 
upon  a  proffer  of  testimony  by  counsel.  This  is  purely  a  question  of 
law,  to  bo  decided  within  the  limitations  of  the  statute  which  created 
this  Commission.  We  cannot  go  beyond  those  limitations  for  any 
purpose  whatever.  We  are  bound  by  our  oaths  to  search  the  mean 
ing  of  the  statutes  and  make  our  answer  to  the  proffer  on  its  merits 
under  the  law,  without  regard  to  the  consequences  which  may  result 
from  the  decision. 

Such  being  my  view  of  our  duty,  I  have  been  pained  to  notice  that, 
running  through  all  the  arguments  of  the  counsel  who  offered  this 
testimony,  and  through  the  remarks  of  those  members  of  the  Commis 
sion  who  favor  its  reception,  has  appeared  the  assumption  that  those 
who  offer  the  testimony  are  able  to  prove  great  and  manifold  frauds, 
and  that  those  who  oppose  its  reception  do  so  because  they  do  not 
wish  to  expose  fraud.  I  wish  to  repel  this  assumption  as  being  not 
only  outside  of  the  law  wo  are  seeking  to  administer,  but  as  being 
gratuitous  and  vv  holly  nntouuded  in  fact.  It  may  not  be  out  of  place 
to  call  the  attention  of  the  Commission  to  the  fact  that  four  counts 
of  the  electoral  vote  of  Florida  have  been  made,  as  appears  in  the 
several  congressional  reports  on  that  subject.  Without  vouching  for 
the  correctness  of  any  of  them,  I  will  state  by  whom  they  were  made, 
and  what  is  the  alleged  result  of  each. 

First.  Ou  the  28th  day  of  November  the  secretary  of  the  State  of 
Florida  laid  before  the  canvassing  board  the  returns  of  the  votes  for 
electors  from  all  the  counties  of  the  State ;  and  a  count  of  this  gross 
vote,  before  any  canvass  was  made  by  the  board,  before  any  vote  was 
rejected  or  any  correction  was  made,  is  declared  to  have  shown  that 
the  Hayes  electors  had  43  majority  over  the  Tilden  electors. 

Second.  Ou  the  6th  day  of  December,  the  board  of  State  canvassers 
made  their  official  report  of  the  vote  as  canvassed  and  compiled  by 
themselves  according  to  law  ;  and  that  report  declared  that  the  Hayes 
electors  had  received  925  majority. 

Third.  On  the  10th  of  January,  in  obedience  to  the  order  of  the 
supreme  court,  which  had  issued  to  the  board  of  canvassers  a  peremp 
tory  writ  of  mandamus,  ordering  them  to  recanvass  the  votes  for 
governor,  and  to  include  in  the  count  some  polls  which  they  had 
thrown  out,  the  board  reconvened  and  recanvassed  the  vote  for  gov 
ernor.  That  canvass  resulted  in  the  declaration  that  Drew  was 
elected  governor  and  Stearns  was  not.  Although  the  order  of  the 
court  diil  not  disturb  the  former  canvass,  so  far  as  it  related  to  the 
presidential  electors,  yet  if  the  order  had  applied  to  the  presidential 
electors  the  result  would  have  been  211  majority  for  the  Hayes  elect 
ors. 

Fourth.  After  Governor  Drew  was  inaugurated  and  the  new  Legis 
lature  had  assembled,  proceedings  in  quo  warranto  before  the  district 
court  were  had,  which  resulted,  late  in  January,  in  an  order  for  the 
new  board  of  State  canvassers,  which  had  been  appointed  by  Gov 
ernor  Drew,  to  recanvass  the  votes  for  presidential  electors.  That 
canvass  was  made,  and  the  result  was  forwarded  to  the  President  of 
the  Senate,  and  was  received  by  him  less  than  two  weeks  ago.  Ac 
cording  to  that  count  the  Tilden  electors  received  a  popular  majority 
of  87.  But  this  count  was  made  long  after  the  electoral  college  had 
met,  given  its  votes,  and  dissolved.  Some  discredit  is  attached  to 
this  result  from  the  allegation  that  this  count  was  made  by  a  board 
specially  appointed  to  achieve  a  special  result,  after  its  importance 
became  known.  The  confirmation  of  this  count  by  the  Legislature  of 
Florida  has  the  same  post  hac  character. 

Here  then  we  have  four  real  or  pretended  counts  of  the  popular 
vote  of  Florida  for  electors  ;  and  three  of  them  give  the  Hayes  elect 
ors  a  majority  ranging  from  43  to  925;  and  the  fourth,  which  was 
made  nearly  two  months  after  the  electoral  college  had  voted  and  had 
become/wnc/HS  officio,  showed  for  the  Tilden  electors,  onl y  90  majority. 
1  do  not  vouch  for  Jhe  accuracy  of  any  of  these  counts ;  but  they  are 
sufficient  to  show  how  unfounded  and  unjust  is  the  pretension  that 
virtue  and  right  are  on  the  side  of  the  Tilden  electors,  and  that  frauds 
and  false  counting  are  to  be  attributed  to  the  other  side.  The  ex- 
tremest  claim  made  on  behalf  of  the  Tildeu  electors  is  but  a  majority 
of  90  ;  and  that  is  set  up  against  three  counts  on  the  other  side  as 
prima  facie  evidence  of  the  truth. 

I  have  referred  to  these  facts  only  for  the  purpose  of  repelling  the 
assumption  that  those  who  deny  the  authority  of  this  Commission  to 
canvass  the  popular  votes  of  a  State,  do  so  because  of  any  desire  or 
willingness  to  cover  up  fraud  or  prevent  its  exposure.  I  will  add 
that  while  one  political  party  charges  errors  and  frauds  on  the  part 
of  the  State  board  of  canvassers  in  declaring  the  result  of  the  elec 
tion,  Ihe  other  parry  charges  fraud,  violence,  and  intimidation  at  the 
polls  to  prevent  a  full  and  fair  vote  at  the  popular  election.  We 
must  resohitely  turn  away  from  the  passionate  outcries  of  both  par 
ties  and  from  every  consideration  except  the  law  which  we  have 
sworn  to  obey,  and,  in  the  light  of  that  law,  determine  what  evi 
dence,  if  any,  we  can  consider  in  reaching  a  decision  of  the  case. 

But  first  let  us  consider  what  class  of  evidence  is  offered  and  what 


ELECTORAL  COMMISSION. 


241 


allegations  are  sought  to  be  established,  that  we  may  more  intelli 
gently  measure  the  offer  by  the  provisions  of  the  law  under  which 
wo  are  acting. 

Let  us  survey  the  boundaries  of  the  field  which  we  are  invited,  to 
enter. 

First.  In  the  opening  of  his  speech  before  us,  one  of  the  objectors, 
Mr.  Field,  said  he  "should  have  occasion  to  mention  canvassers  in 
only  one  county,"  and  "  that  county  was  decisive  of  the  result."  He 
asked  us  to  hear  evidence  that  the  county  canvassers  of  Baker  County 
threw  out  the  votes  of  two  polls,  one  in  the  Darbyville  precinct  and 
another  in  the  Johnsouville  precinct.  (See  Congressional  Record, 
February  3,  page  46.) 

Thus,  at  the  first  step  of  the  contest,  we  are  asked,  not  only  to  go 
behind  the  certificate  of  the  governor  and  behind  the  determination 
of  the  State  board  of  canvassers,  but  we  are  asked  to  review  and  cor 
rect  the  alleged  errors  and  wrong-doings  of  a  county  judge,  a  county 
clerk  and  a  county  sheriff,  in  making  up  their  returns  of  votes  to  the 
secretary  of  state.  How  shall  we  do  this  ?  Certainly  no  member  of 
this  Commission  will  deny  that  if  we  enter  the  door  opened  by  Mr. 
Field,  we  must  hear  both  sides.  We  must  summon  the  judge,  the 
clerk,  and  the  sheriff,  to  learn  precisely  what  they  did  and  the  rea 
son  for  it,  and  must  have  before  us  the  returns  from  Johnsonville 
and  Darbyville  in  order  to  ascertain  whether  they  were  lawful  and 
regular  returns,  such  as  the  county  officers  were  required  by  law  to 
include  in  the  general  returns  of  Baker  County.  Probably,' in  order 
to  get  at  the  very  truth,  we  should  be  compelled  to  summon  the 
election  officers  of  Darbyville  and  Johnsonville  and  examine  the  bal 
lots  and  poll  lists,  and  any  contest  arising  in  reference  to  them. 

Second.  But  while  Mr.  Objector  Field  is  willing  to  rest  his  case  upon 
the  polls  in  one  county,  Mr.  O'Conor,  the  leading  counsel  for  the  Tilden 
electors,  asks  us  to  enter  a  much  larger  field.  He  offers  evidence  toshow 
that  the  State  board  of  canvassers,  acting  "on  certain  erroneous  views 
in  making  their  canvass,  by  which  the  Hayes  electors  appeared  to  bo 
chosen,  rejected  wholly  the  returns  from  the  county  of  Manatee  and 
part  of  the  returns  of  each  of  the  following  counties:  Hamilton, 
Jackson,  and  Monroe."  Mr.  O'Conor  adds  that  he  trusts  he  has 
omitted  none,  but  has  had  no  consultation.  This  extends  the  area 
over  which  evidence  is  offered  to  election  precincts  in  five  counties. 

Third.  Mr.  Evarts,  at  the  close  of  his  speech,  refers  to  the  votes 
of  five  counties,  one  of  which  was  not  named  by  Mr.  Field  or  Mr. 
O'Conor. 

Fourth.  From  the  reports  of  the  committees  of  the  Senate  and  House 
on  the  subject  of  the  Florida  election,  I  observe  that  testimony  has 
been  taken  in  reference  to  polls  in  seventeen  different  counties  of  the 
State.  A  portion  of  that  testimony,  I  have  no  doubt,  is  contained  in 
the  large  packages  brought  before  us,  but  not  yet  opened.  Much  of 
the  testimony  referred  to  in  the  Senate  report,  relates  to  the  proceed 
ings  at  polling-places ;  to  alleged  frauds  on  the  part  of  voters,  and 
to  errors  on  the  part  of  officers  who  conducted  the  election. 

This  summary  of  the  evidences  proffered  is  sufficient  to  show  that 
we  cannot  take  one  step  beyond  the  final  determination  which  the 
State  itself  has  made  without  going  to  the  bottom  of  the  poll.  In 
brief,  this  Commission  must  assume  to  be  the  canvassing  and  return 
ing  board  of  Florida.  A  bare  statement  of  the  proposition  shows  that 
its  accomplishment  by  us  is  not  merely  inconvenient ;  it  is  utterly  im 
possible.  But  if  the  law  under  which  we  are  acting  commands  us  to 
undertake  it,  we  must  obey.  Though  I  opposed  the  bill  in  the  House, 
and  regarded  it,  as  I  still  do,  in  conflict  with  the  constitutional  plan 
of  counting  the  electoral  vote,  my  opinion  was  overruled  by  the  two 
Houses  ;  and  I  shall  do  all  in  my  power  to  carry  out  the  provisions  of 
the  act  in  its  letter  and  spirit.  And  this  brings  me  to  search  the  act 
itself  to  ascertain  our  powers  and  duties  under  it. 

This  law  is  based  on  the  assumption  that  it  is  the  right  and  the 
duty  of  the  two  Houses  of  Congress,  meeting  together,  to  count  the 
votes  for  President  and  Vice- President.  It  prescribes  the  order  of 
proceeding  to  perform  that  duty.  When  the  certificates  of  any  State 
are  opened,  if  no  objection  be  made,  the  votes  of  that  State  shall  at 
once  be  counted.  If  objection  be  made  two  modes  of  procedure  are 
provided,  one  for  a  single  return,  and  another  for  a  double  return. 
The  two  Houses  pass  upon  objections  to  a  single  return ;  this  Com 
mission  is  required  to  act  in  cases  of  double  returns.  In  either  case 
the  action  is  to  be  according  to  the  Constitution  aud  the  law.  In 
each  the  object  to  bo  reached  is  to  count  the  lawful  votes  of  the 
State.  The  provisions  of  the  act  which  regulates  the  conduct  of  the 
t'.vo  Houses  in  cases  of  single  returns  will  throw  light  upon  the  duty 
of  the  Commission  in  cases  of  double  returns.  The  first  section  of 
the  act  provides  that  in  cases  where  there  is  but  one  return  from  a 
State  and  an  objection  is  made  to  the  count,  the  two  Houses  shall 
separate  and  each  shall  act  upon  such  objection.  The  fourth  section 
provides  that — 

"When  the  two  Houses  separate  to  decide  upon  an  objection  tli.it  may  have  been 
made  to  the  counting  of  any  electoral  vote  or  votes  from  any  State,  or  upon  an  ob 
jection  to  a  report  of  the  Commission,  or  other  question  arising  nnder  this  act,  each 
Senator  or  Representative  may  speak  to  such  objection  or  question  ten  minutes, 
and  not  ofteiier  than  once;  but  after  such  debate  shall  have  lasted  two  hours,  it 
shall  be  the  duty  of  oacu  House  to  put  the  main  question  without  farther  debate. 

Can  it  be  claimed  that  this  provision  implies  the  hearing  of  testi 
mony  and  the  trial  of  a  contest  ?  The  whole  time  allowed  to  the  two 
Houses  to  decide  the  gravest  objections  that  may  be  raised  to  the 
counting  of  the  vote  of  any  State  or  of  any  elector  is  but  two  hours  ; 

10 


and  that  brief  period  is  devoted,  not  to  the  hearing  of  evidence,  bud 
to  debate.  There  is  no  provision  in  the  section  for  taking  testimony 
or  trying  disputed  questions  of  fact.  The  reasonable  construction  of 
the  section  is  that  the  two  Houses  decide  any  questions  of  law  or  any 
matter  of  informality  which  may  appear  on  the  face  of  the  certificates 
opened  by  the  President  of  the  Senate.  It  has  been  said  by  an  hon 
orable  member  of  the  commission  that,  in  deciding  upon  an  objection 
to  a  single  return,  the  two  Houses  may  exercise  their  acknowledged 
power  of  inqtiiry  by  sending  for  persons  and  papers  and  may  use  tes 
timony  already  taken  by  their  committees ;  but  it  must  be  remem 
bered  that  the  contents  of  the  certificate  on  which  the  objection  is 
based  can  be  known  by  neither  House  nor  by  any  member  of  either 
House  until  it  is  opened  in  their  presence ;  for  the  objection  provided 
for  in  the  act  is  "  to  any  vote  or  paper  from  a  State."  Certainly  it 
will  not  be  claimed  that  any  testimony  taken,  before  the  contents  of 
the  sealed  package  are  made  known,  can  be  valid  and  lawful  testi 
mony  to  sustain  an  objection  made  afterwards.  Such  testimonymight 
be  ex  parte,  misleading,  and  false ;  and  yet  in  the  two  hours  allowed 
by  the  bill  it  might  be  wholly  impossible  to  procure  evidence  to  over 
come  it. 

If,  then,  we  take  the  proceedings  of  the  two  Houses,  under  the  first 
and  fourth  sections  of  the  act,  as  a  precedent  for  our  action  here,  we 
find  no  warrant  for  receiving  the  evidence  offered.  Again,  if  we  take 
the  proceedings  of  the  two  Houses  under  the  first  and  fourth  sections 
as  a  precedent,  we  should  compare  the  time  granted  to  the  two 
Houses  with  the  time  wo  have  already  consumed  on  this  case.  We 
are  far  into  the  sixth  day  of  our  proceedings.  This  is  the  first  of  four 
cases  to  be  submitted ;  and  we  are  now  debating,  not  the  merits  of 
the  case,  but  a  preliminary  question  of  procedure.  It  is  not  too  much 
to  say  that  tho  admission  of  the  evidence  proffered  will  wholly  defeat 
the  object  of  the  bill. 

But  tho  learned  Commissioner  [Mr.  BAYATCD  ]  who  has  just  spoken, 
calls  attention  to  the  clause  of  the  act  which  confers  upon  us  our 
powers.  It  is  in  these  words : 

All  such  certificates,  votes,  and  papers  so  objected,  to,  and  all  papers  accompany 
ing  the  same,  together  with  such  objections,  shall  be  forthwith  submitted  to  said 
Commission,  which  shall  proceed  to  consider  the  same,  with  the  same  rjowers,  if  any. 
nowpossessed  for  that  purpose  by  the  two  Houses,  acting  separately  or  together,  ami 
by  amajority  of  votes  decide  whether  any  and  what  votes  from  such  State  are  thft 
votes  provided  for  by  tho  Constitution  of  the  United  States,  and  how  many  and  what 
persons  were  duly  appointed  electors  in  Booh  State,  and  may  therein  take  into  view- 
such  petitions,  depositions,  and  other  papers,  if  any,  as  shall,  by  tho  Constitution 
and  now  existing  law,  be  competent  and  pertinent  in  such  consideration. 

This  clause  declares  what  questions  we  are  to  decide,  and  prescribes 
the  rule  of  evidence  by  which  the  decision  is  to  be  reached.  The 
rule  of  evidence  is  that  we  "  may  take  into  view  such  petitions,  depo 
sitions,  and  oilier  papers,  if  any,  as  shall,  by  the  Constitution  and  now  ex 
isting  law,  be  competent  and  pertinent  in  such  consideration."  In  apply 
ing  this  rule  we  have  "  the  same  powers,  if  any,  now  possessed  for  that 
purpose  b)/  the  two  Houses  acting  separately  or  together."  That  is,  the 
Commission  is  clothed  with  tho  powers  of  the  two  Houses  in  refer 
ence  to  counting  the  votes  of  electors,  but  in  nothing  else. 

Tho  act  speaks  of  "petit  ions  and  depositions;"  but  it  does  not  per 
mit  us  to  consider  them  unless  we  find  that  the  Constitution  aud  the 
law,  as  it  existed  before  the  passage  of  this  act,  authorized  the  two 
Houses  to  employ  them  in  counting  the  votes. 

This  act  confers  no  new  powers  upon  the  two  Houses;  but  it  makes 
this  Commission  the  interpreter  of  the  powers  which  they  possessed 
before  its  passage.  It  is  well  known  that  the  framers  of  the  act  were 
unable  to  agree  upon  the  question  whether  the  Constitution  confers 
upon  the  two  Houses  authority  to  challenge,  for  any  purpose,  the  de 
termination  of  the  State  authorities  in  reference  to  the  appointment; 
of  electors  ;  and,  because  they  could  not  agree,  they  purposely  left  it, 
an  open  question  to  be  decided  by  tho  Commission.  For  one,  I  did 
not  consider  it  an  open  question  ;  and  I  was  unwilling  to  place  it 
in  the  power  of  any  commission  to  declare  that  the  Houses  possess 
such  authority.  But  the  act  permits  us  to  decide  and  pass  upon  tho 
question  ;  and  we  are  bound  to  decide  it  in  accordance  with  the  Con 
stitution  and  existing  law.  Let  us  fully  understand  the  precise 
question  which  \vo  are  to  decide. 

The  law  of  Florida  provides  that  the  secretary  of  state,  the  attor 
ney-general,  tho  comptroller  of  public  accounts,  together  with  any 
member  of  the  cabinet  who  may  be  designated  by  them,  shall  "  form 
a  board  of  State  canvassers,  and  proceed  to  canvass  the  returns  of  tho 
election  and  determine  and  declare  who  shall  have  been  elected  as 
shown  by  such  returns.  If  any  such  returns  shall  be  shown  or  shall 
appear  to  be  so  irregular,  false,  or  fraudulent  that  tho  board  shall  be 
unable  to  determine  the  true  vote  for  any  such  officer  or  member, 
they  shall  so  certify,  and  shall  not  include  such  return  in  their  deter 
mination  and  declaration."  (Section  4,  of  act  of  February  27,  1872.) 

This  board,  thus  authorized  to  "determine  and  declare"  what  per 
sons  have  been  chosen  by  the  State,  did  determine  and  declare  that 
four  persons  had  been  appointed  electors  of  President  and  Vice-Pres 
ident  ;  and  the  certificate  of  the  governor,  now  before  us,  is  acknowl 
edged  to  be  in  accordance  with  the  determination.  On  this  state  of 
the  law  and  the  facts,  assuming  that  the  Constitution  empowers  the 
two  Houses,  or  either  of  them,  to  count  the  electoral  votes,  does  this 
authority  to  count  carry  with  it  the  authority  to  take  testimony  or 
to  consider  evidence  to  show  that  the  State  board  of  canvassers  acted 
upon  erroneous  views  of  the  law  of  the  State,  or  made  errors  and  mis 
takes  in  determining  and  declaring  who  were  elected  f 


242 


ELECTORAL  COMMISSION. 


This  is  the  main  question  we  are  now  called  upon  to  decide.  If  the 
two  Houses  possess  such  authority,  we  may  hear  the  testimony.  If 
they  do  not,  we  could  not  consider  it  if  it  were  here  in  our  hands. 

The  distinguished  Commissioner  [Mr.  BAYAUD]  who  has  just  spoken, 
claims  this  authority  for  the  Commission,  on  the  ground  that  the 
words  "  existing  law  "  include  the  lex  parliamentaria  under  which  each 
House  may  send  for  persons  and  papers,  and  may  take  testimony  upon 
any  subject  it  pleases ;  and  that,  as  a  matter  of  fact,  each  House  has 
already  taken  testimony  in  reference  to  the  election  in  Florida  and  in 
other  States. 

This  authority  to  take  testimony  is  not  expressly  conferred  upon 
either  House  hy  the  Constitution.  It  belongs  to  the  class  of  implied 
powers.  It  is  incidental  to  the  power  to  make  laws.  Because  Con 
gress  has  authority  to  enact  laws,  it  is  a  necessary  incident  to  that 
power  that  each  House  may  procure  such  information  as  will  enable 
it  to  act  with  intelligence.  Incidental  authority  cannot  exceed  the 
express  authority  from  which  it  is  derived.  Where  the  authority  to 
legislate  ends,  there  the  incidental  authority  to  take  testimony  also 
ends. 

The  testimony  taken  for  purposes  of  legislation  is  not  testimony  in 
the  judicial  sense.  It  is  not  taken  in  accordance  with  the  rules  of 
evidence  which  regulate  a  trial  before  a  jury  or  court;  but  it  is 
rather  the  information,  obtained  by  a  special  inquiry  made  for  the 
purpose  of  ascertaining  the  opinions  and  wishes  of  intelligent  citi 
zens  upon  questions  requiring  the  action  of  Congress.  I  doubt  if  one 
deposition  in  ten, taken  by  the  committees  sent  to  Florida,  would  be 
admissible  in  any  judicial  inquiry. 

Besides  the  testimony  taken  in  aid  of  legislation,  each  House  may 
also  take  testimony  in  the  case  of  a  contested  election  of  a  member,  in 
proceedings  to  censure  or  expel  a  member,  or  in  the  still  more  strictly 
judicial  proceedings  in  impeachment..  But  these  are  authorized  by 
the  clauses  of  the  Constitution,  which  provide  for  the  trial  of  im 
peachments,  and  those  which  empower  each  House  to  "be  the  judge 
of  the  election,  returns,  and  qualifications  of  its  own  members,"  and 
to  punish  or  expel  its  members  for  disorderly  behavior.  These  clauses 
confer  no  authority  whatever  vipon  this  Commission.  They  do  not 
relate  to  the  subject-matter  which  has  been  referred  to  us. 

It  will  not  do  for  us  to  claim  the  same  powers  which  we  should  pos 
sess  if  the  Constitution  made  the  two  Houses  the  judge  of  the  elec 
tions,  returns,  and  qualifications  of  electors  of  the  President  and  Vice- 
President.  The  fact  that  no  such  power  is  expressed  in  the  Constitu 
tion,  is  strongly  against  our  right  to  infer  it,  and  virtually  amounts 
to  the  denial  of  such  a  power. 

}  But  I  base  my  opinion  on  the  rule  of  evidence  upon  other  clauses 
of  the  Constitution  which  seem  to  me  conclusive  of  the  question.  I 
cannot  better  state  my  position  than  to  sninmarize  the  argument 
which  I  made  in  the  House  three  weeks  ago. 

»  I  will  read  the  only  two  clauses  from  which  it  is  claimed  that  Con 
gress  derives  any  power  whatever  to  inquire  into  the  action  of  the 
States  in  appointing  electors  of  the  President  and  Vice-President. 
The  second  clause  of  the  first  section  of  article  2  provides  as  follows : 

Each  State  shall  appoint,  in  such  manner  as  the  Legislature  thereof  may  direct, 
a  number  of  electors,  equal  to  the  whole  number  of  Senators  and  Representatives 
to  which  the  State  may  be  entitled  in  the  Congress :  butno  Senator  or  Representa 
tive,  or  person  holding  an  oflice  of  trust  or  protit  under  the  United  States,  shall 
be  appointed  an  elccUir. 

And  the  third  clause  of  the  same  section  provides — 

The  Congress  may  determine  the  time  of  choosing  the  electors,  and  the  day  on 
which  they  shall  give  their  votes ;  which  day  shall  be  the  same  throughout  the 
United  States. 

These  two  clauses  contain  all  the  powers  conferred  upon  the  States 
in  appointing  electors,  and  contain  also  all  the  limitations  upon  these 
powers.  There  are  five  expressed  or  implied  limitations  upon  the 
power  of  the  States,  and  only  five.  The  limitations  are  either  abso 
lute  in  the  Constitution  itself,  or  such  as  authorize  Congress  to  fix 
limitations.  And  if  Congress  has  any  authority  whatever  to  inter 
fere  with  the  action  of  the  States  in  the  appointment  of  electors,  that 
authority  must  be  found  in  some  one  or  more  of  the  five  limitations. 

Now  what  are  these  limitations? 

First.  It  must  be  a  State  that  elects  the  electors ;  and,  as  Congress 
alone  has  the  authority  to  admit  new  States  into  the  Union,  if  there 
should  be  any  political  organization,  not  a  State,  that  shall  cast  a  vote 
for  presidential  electors,  and  if  such  pretended  electors  send  a  cer 
tificate  of  their  vote  for  President  and  Vice-President,  the  Congress 
would  undoubtedly  have  the  right  to  inquire  into  the  right  of  such 
political  organization  to  participate  in  the  election. 

Second.  No  State  can  have  more  electors  than  the  number  of  Sena 
tors  and  Representatives  to  which  that  State  is  entitled  in  Congress 
at  the  time  of  the  presidential  election.  If  any  State  presumes  to 
elect  more,  no  doubt  that  can  be  inquired  into.  The  surplus  votes 
cannot  be  counted.  That  is  the  second  limitation. 

Third.  The  Constitution  provides  that  no  person  shall  be  appointed 
an  elector  for  President  and  Vice-President  who  is  either  a  Senator 
or  Representative  in  Congress,  or  holds  any  office-of  trust  or  profit 
under  the  United  States.  Without  doubt,  a  violation  of  this  provis 
ion  may  be  inquired  into ;  for  it  is  distinctly  declared  as  a  limitation 
of  the  authority  of  the  State.  Whether  that  inquiry  can  be  made 
without  special  legislation  prescribing  a  mode  of  procedure,  is  a  ques 
tion  aside  from  the  topic  I  am  now  discussing. 

Fourth.  Congress  is  empowered  by  the  Constitution  to  fix  the  day 


when  the  States  shall  vote  for  electors ;  and  as  Congress  has  fixed  a 
day,  the  Tuesday  after  the  first  Monday  in  November,  the  State  has 
no  right  to  vote  for  electors  on  any  other  day,  except  that,  in  case  a 
State,  having  held  an  election  on  that  day,  has  failed  to  make  a  choice, 
its  Legislature  may  provide  for  holding  an  election  on  a  subsequent 
day,  in  accordance  with  the  act  of  Congress  approved  January  21?, 
1845.  Doubtless  the  inquiry  may  be  made  whether  the  election  was 
held  on  the  day  fixed  by  law. 

Fifth.  The  Constitution  provides  that  Congress  may  determine  the 
day  on  which  the  electors  in  all  the  States  shall  give  their  votes  for 
President  and  Vice-Presideut.  By  the  act  of  March  1, 1792,  that  fixed 
day  is  the  first  Wednesday  of  December — within  thirty-four  days  of 
the  date  of  the  general  election.  From  this  it  follows  that  all  the 
stepswhich  are  necessary  to  complete  the  appointment  of  the  electors, 
must  have  been  taken  by  the  first  Wednesday  in  December,  when  the 
electors  are  to  vote  for  President  and  Vice-President.  For  the  pur 
poses  of  my  argument  I  do  not  follow  the  process  of  electing  a  Presi 
dent  beyond  the  appointment  of  the  electors. 

To  sum  up  these  limitations  in  brief:  Congress,  in  obedience  to  the 
Constitution,  fixes  the  day  for  choosing  the  electors,  and  the  day  when 
they  must  vote.  The  Constitution  prescribes  that  States  only  shall 
choose  electors.  It  prescribes  the  number  of  electors  for  each  State, 
and  limits  their  qualifications.  These  are  the  only  limitations  upon 
the  authority  of  the  States  in  the  appointment  of  electors  of  the  Presi 
dent.  Every  other  act  and  fact  relating  to  their  appointment  is  placed 
as  absolutely  and  exclusively  in  the  power  of  the  States,  as  it  is  within 
their  power  to  elect  their  governors  or  their  justices  of  the  peace. 
Across  the  line  of  these  limitations  Congress  has  no  more  right  to  in 
terfere  with  the  States  than  it  has  to  interfere  with  the  election  of 
officers  in  England.  To  speak  more  accurately,  I  should  say  that  the 
power  is  placed  in  the  Legislatures  of  the  States ;  for  if  the  constitu 
tion  of  any  State  were  silent  upon  the  subject,  its  Legislature  is  none 
the  less  armed  with  plenary  authority,  conferred  upon  it  directly  by 
the  national  Constitution. 

It  is  insisted  by  those  who  oppose  the  view  I  am  taking,  that, 
though  the  Constitution  authorizes  the  States  to  appoint  electors  in 
such  manner  as  the  Legislatures  thereof  may  direct,  yet  the  two  Houses 
of  Congress,  in  counting  the  electoral  votes,  may  inquire  whether  the 
State  authorities  proceeded  in  accordance  with  their  own  laws,  and 
may  correct  any  errors  in  the  process,  or  any  violation  of  the  State 
law.  To  this  I  answer  that  the  power  to  appoint  includes  the  power 
to  do  all  those  things  necessary  to  complete  the  appointment,  and  to 
determine  and  declare  who  have  been  appointed.  In  pursuance  of  its 
authority  to  appoint  electors,  the  State  may  not  only  provide  for  hold 
ing  a  popular  election,  as  the  mode  of  choosing  them,  but  it  may 
also  provide  by  what  means  the  result  of  such  election  may  be  veri 
fied  and  declared;  and  we  have  already  seen  that  the  Legislature  of 
Florida  has  made  such  provision.  The  laws  of  that  State  prescribe 
all  the  steps,  from  the  casting  and  counting  of  the  ballots  at  the 
several  polling-places,  to  the  final  determination  and  declaration  of 
the  result  by  the  board  of  State  canvassers.  If  any  revision  of  that 
result  be  possible,  it  is  the  right  of  the  Legislature  of  Florida  to  pro 
vide  for  it,  not  the  right  of  the  two  Houses  of  Congress  or  either  of 
them. 

The  final  determination  of  the  result  of  the  election  having  been 
declared  by  the  authority  empowered  to  determine  and  declare  it, 
that  act  becomes  the  act  of  the  State ;  and  the  two  Houses  of  Con 
gress  can  no  more  question  such  declaration  than  they  can  question 
the  primary  right  of  appointment  by  the  State. 

For  these  reasons,  Mr.  President,  t  shall  vote  against  receiving  the 
evidence  offered.  In  conclusion,  I. will  add  that  the  preservation 
of  the  right  of  the  States  under  the  Constitution  to  appoint  electors 
and  declare  who  have  been  appointed,  is,  in  my  judgment,  a  matter 
of  much  greaterimportance  than  the  accession  of  any  one  man  to  the 
Presidency. 


LOUISIANA. 

On  Friday,  February  16,  the  Commission  baring  under  consideration  the  electoral 
vote  of  Louisiana — 

Mr.  Commissioner  GARFIELD  said : 

Mr.  PRESIDENT  :  The  rule  of  evidence  adopted  by  the  Commission 
in  reference  to  Florida  was  in  fact  decisive  of  that  case.  The  same 
will  doubtless  be  true  in  the  case  before  us.  The  discussion  has  dis 
closed  the  fact  that  the  rule  of  evidence  and  the  merits  of  the  case 
stand  together,  and  I  shall  proceed  upon  that  understanding  in  my 
remarks. 

There  can  be  no  difference  in  principle  between  the  Florida  and 
the  Louisiana  cases,  so  far  as  the  rule  of  evidence  is  concerned,  unless 
it  be  that  the  allegation  of  fraud  and  the  offer  to  prove  fraud  on  the 
part  of  the  returning  board  brings  this  case  under  principles  different 
from  those  which  the  Commission  applied  to  the  Florida  certificate. 
In  that  case,  the  counsel  proffered  evidence  to  show  that  the  State 
board  of  canvassers  had  proceeded  upon  an  erroneous  view  of  the  law. 
In  this  case,  they  allege  not  only  error  on  the  part  of  the  returning 
board  in  the  construction  of  the  law  under  which  they  acted,  but 
they  offer  to  prove  actual  fraud. 

I  have  listened  with  great  pleasure  to  the  clear  and  able  argument 
of  the  distinguished  Commissioner  [  Senator  THURMAN]  who  has  just 


ELECTORAL  COMMISSION. 


243 


spoken.  lie  has  aided  us  in  the  discussion  by  making  the  strongest 
possible  presentation  of  the  argument  in  favor  of  admitting  the  evi 
dence.  I  will  follow  the  order  ho  has  adopted,  and  will  offer  some 
suggestions  in  reply. 

He  holds : 

First.  That,  assuming  the  law  of  Louisiana  which  created  the  re 
turning  board  to  be  constitutional,  the  board  was  itself  not  lawfully 
organized,  because  the  vacancy  was  not  filled  as  required  by  the  act 
of  "November  20,  1872,  which  provides  that  "  in  case  of  vacancy  by 
death,  resignation,  or  otherwise,  by  either  of  the  board,  the  vacancy 
shall  be  tilled  by  the  residue  of  the  board."  Authorities  have  been 
cited  to  sustain  this  view.  Ib  is  no  doubt  true  that  where  the  law 
creates  a  board,  unless  otherwise  specially  provided,  its  membership 
must  be  full  before  it  can  become  a  legal  board.  But  the  rule  is  oth 
erwise  where  it  has  once  been  full  and  a  vacancy  has  subsequently 
happened.  In  the  case  before  us,  however,  it  is  not  necessary  to  go 
into  the  general  doctrine ;  for  wo  are  able  to  determine  the  point  in 
controversy  by  the  laws  of  Louisiana,  as  construed  by  the  courts  of 
that  State.  I  remind  the  Commission  of  the  point  so  well  made  a  few 
days  since  by  Mr. Commissioner  FIELD,  in  the  Florida  discussion,  that 
the  construction  given  to  a  statute  of  a  State  by  its  supremo  court,  is 
binding  upon  all  other  States  and  upon  the  United  States ;  and  that, 
for  all  practical  purposes,  the  construction  so  given  becomes  as  much 
a  part  of  the  statute  as  though  the  language  of  the  court  were  in 
corporated  into  the  text  of  the  law.  There  can  be  no  doubt  of  the  cor 
rectness  of  this  position. 

In  Bank  of  Hamilton  vs.  Dudley,  2  Peters,  492,  Chief-Justice  Mar 
shall,  delivering  the  unanimous  opinion  of  the  court,  said : 

The  judicial  department  of  every  government  is  the  rightful  expositor  of  its 
laws,  and  emphatically  of  ita  supreme  law. 

Again,  in  Elmdorf  vs.  Taylor,  10Wheaton,the  same  great  judge  says, 
at  page  159 : 

This  court  has  uniformly  professed  its  disposition,  in  cases  depending  on  the  laws 
of  a  particular  State,  to  adopt  tho  construction  which  the  courts  of  the  State  have 
given  to  those  laws.  This  course  is  founded  on  the  principle,  supposed  to  be  univer 
sally  recognized,  that  the  judicial  department  of  every  government  is  the  appropri 
ate  'organ  for  construing  the  legislative  acts  of  that  government.  *  *  »  We 
receive  the  construction  given  by  the  courts  of  a  nation  as  the  true  sense  of  the 
law,  and  feel  ourselves  no  more  at  liberty  to  depart  from  that  construction  than  to 
depart  from  the  words  of  the  statute.  *  *  *  On  the  same  principle  the  coustruc- 
tiou  given  by  tho  courts  of  the  several  States  is  received  as  true,  unless  they  come 
in  conflict  with  the  Constitution,  laws,  or  treaties  of  the  United  States. 

The  later  decisions  of  the  Supreme  Court  are  all  in  accordance  with 
this  doctrine.  (See  12  Wheatou,  167,  168;  6  Peters,  291;  7  Howard, 
818;  8  Howard,  558,  559;  11  Howard,  318;  14  Howard,  504  ;  2  Black, 
599;  1  Wall.,  175.) 

Now  apply  this  doctrine  to  the  point  under  consideration.  The 
supreme  court  of  Louisiana  has  decided  that  the  returning  board  of 
1872,  created  under  the  act  of  March  16, 18TO,  and  consisting  of  but 
four  members,  (there  being  one  vacancy,)  was  the  lawful  returning 
board  of  tho  State.  Tho  court  also  decided  that  the  clause  of  the  act 
of  1870  requiring  vacancies  to  be  filled,  which  is  precisely  the  same  as 
in  the  act  of  1872,  is  not  mandatory,  and  a  failure  to  fill  the  vacancy 
does  not  render  unlawful  tho  acts  of  a  remaining  quorum.  I  refer  to 
the  case  of  Beuuer  vs.  Lynch,  25  Louisiana  Annual  Reports,  267,  and 
to  the  cases  therein  cited.  At  page  268  the  court  say : 

We  decided  in  the  case  of  Kennard  vs.  Morgan,  and  again  in  the  case  of  Hughes 
vs.  Pipkin,  that  tho  hoard  of  returning  officers,  composed  of  John  Lynch.  George 
E.  Boveo,  James  Longstreet,  and  Jacob  Hawkins,  was  the  legal  returning  hoard  of 
the  State  at  tho  late  November  election.  That  board,  it  appears,  returned  tho  de 
fendant,  Lynch,  as  elected  judge  of  tho  fourth  district  court  of  New  Orleans ;  and 
upon  that  return  tho  acting  governor  issued  a  commission  to  him  according  to 
law. 

The  court  held  the  returns  of  the  election  by  that  board  valid ;  and 
upon  tho  principle  so  long  and  so  well  settled  by  the  Supremo  Court 
of  the  United  States  wo  are  concluded  on  tho  question.  As  a  matter 
of  right  and  fairness,  the  board  ought  to  have  tilled  tho  vacancy  by 
appointing  a  democrat ;  but  their  failure  to  do  so  did  not  invalidate 
their  acts  done  in  pursuance  of  the  law. 

Second.  The  distinguished  Commissioner  [Mr.  THURMAN]  holds 
that  if  the  board  had  been  full,  and  organized  in  accordance  with  the 
law,  yet  the  law  itself  and  tho  board  created  by  it  are  unconstitu 
tional  and  unrepublican. 

Here  again  I  appeal  for  my  answer  to  the  authority  of  tho  supreme 
court  of  Louisiana,  which  is  conclusive  upon  this  Commission  and 
upon  all  courts.  I  quote  again  from  Bonner  TS.  Lynch,  25  Louisiana 
Annual  Reports,  268,  where  the  court  say  : 

The  Legislature  has  seen  proper  to  lodge  the  power  to  decide  who  has  or  has  not 
been  elected,  in  the  returning  board.  It  might  have  conferred  that  power  upon  the 
courts,  but  it  did  not.  Whether  the  law  be  good  or  bad,  it  is  our  duty  to  obey  its 
provisions  and  not  to  legislate.  *  *  *  Haying  no  power  to  revise  the  action  of 
the  board  of  returning  officers,  we  have  nothing  to  do  with  the  reasons  or  grounds 
upon  which  they  arrived  at  their  conclusion. 

The  court  declares  the  law  valid  ;  and  that  alone  ends  the  contro 
versy.  But  I  submit  that  it  is  not  necessary  to  have  recourse  to  the 
constitution  of  tho  State  to  find  authority  for  the  Legislature  to  pre 
scribe  the  mode  of  appointing  electors  of  President  and  Vice-Presi- 
dent.  The  national  Constitution  confers  that  power  directly  upon 
the  Legislature  of  tho  State.  In  1796,  at  the  time  of  the  presiden 
tial  election,  there  was  no  provision  in  the  constitution  or  laws  of 
Vermont  for  choosing  electors.  But  the  Legislature  of  that  State,  of 


its  own  motion,  appointed  the  electors ;  and  Congress  did  not  ques 
tion  the  validity  of  the  transaction. 

Whether  the  acts  of  the  returning  board  wore  in  conflict  with  tho 
constitution  of  Louisiana  or  not,  they  were  in  accordance  with  tho 
mode  of  procedure  prescribed  by  the  Legislature ;  and  the  national 
Constitution  confers  upon  the  State  Legislature  the  sole  and  exclusive 
authority  to  prescribe  the  mode  of  appointment. 

In  view  of  the  other  clause  of  the  objection,  that  the  law  is  unre 
publican,  it  may  be  worth  while  to  consider  the  causes  which  led  to 
its  enactment. 

If  I  were  framing  a  body  of  election  laws  for  Ohio,  I  certainly 
should  not  adopt  the  Louisiana  law  as  my  model.  But  it  is  difficult 
to  see  how  the  election  laws  that  prevail  in  most  of  the  States  could  be 
made  effective  to  repress  the  evils  that  have  afflicted  Louisiana.  No 
State  of  the  Union  has  passed  through  an  experience  so  sad  and  so 
calamitous. 

It  is  not  necessary  to  repeat  the  history  of  the  tragic  events  which, 
for  several  years,  threatened  to  dissolve  the  bonds  of  society,  and  to 
destroy  both  liberty  and  law  in  that  State.  It  ia  sufficient  for  my 
present  purpose  to  call  the  attention  of  the  Commission  to  article  103 
of  her  present  constitution  adopted  in  1868.  It  is  in  these  words : 

The  privilege  of  free  suffrage  shall  be  supported  by  laws  regulating  elections  and 
prohibiting  under  adequate  penalties  all  undue  influence  thereon  from  power,  brib 
ery,  tumult,  or  other  improper  practice. 

I  doubt  if  a  similar  provision  can  be  found  in  tho  constitution  of 
any  other  State  in  the  Union.  It  is  probable  that  no  other  State  has 
found,  by  terrible  experience,  that  such  a  provision  was  necessary  to 
its  peace.  Will  any  one  say  that  it  is  unrepublican  for  a  State  to 
require  ita  Legislature  to  protect  ita  voters  against  "bribery  and 
tumult "  at  elections  ? 

The  law  under  which  the  returning  board  acted  at  the  late  election 
was  passed  in  pursuance  of  this  provision  of  tho  constitution.  In  its 
title,  it  is  declared  to  be  "An  act  to  regulate  the  conduct  and  to 
maintain  the  freedom  and  purity  of  elections ;  to  prescribe  the  modo 
of  making  the  returns  thereof;  to  provide  for  tho  election  of  return 
ing  officers,  to  define  their  powers  and  duties,  and  to  enforce  article 
103  of  the  constitution." 

It  is  a  general  law,  applicable  to  all  elections  held  within  the  State. 
If  ita  provisions  are  nnrepublican,  then  the  State  itself  is  unrcpub- 
lican  ;  for  all  tho  officers  which  the  State  has  elected  during  the  last 
seven  years  have  been  chosen  and  declared  elected  in  pursuance  of 
this  or  a  law  substantially  like  this.  We  are  told  that  the  powers 
granted  to  the  returning  board  are  uurepublican.  It  should  not  bo 
forgotten  that  the  power  to  canvass,  determine,  and  declare  the  result 
of  elections  must  be  lodged  somewhere;  that  some  authority  or  au 
thorities  of  a  State  must  finally  determine  who  have  been  elected. 

In  Ohio,  for  example,  the  duties  of  the  State  board  of  canvassers 
.are  wholly  ministerial.  They  can  do  nothing  but  add  up  tho  returns 
sent  from  tho  counties,  and  annonnce  the  result.  Tho  actual  work  of 
canvassing  and  judging  is  left,  not  to  one  board,  but  to  four  or  five 
thousand  boards,  called  judges  of  election,  who  sit  behind  the  ballot- 
boxes,  clothed  with  power  to  administer  oaths  and  prevent  the  cast 
ing  of  unlawful  ballots.  When  the  polls  are  closed,  each  of  these 
local  return  ing-boards  proceeds  to  determine  and  declare  the  result. 
But  they  do  not  count,  as  lawful  votes,  "  all  the  ballots  actually  cast." 
If  they  find  two  votes  so  folded  together  that  in  their  judgment  both 
were  cast  by  the  same  voter,  such  ballots  are  thrown  out  and  con 
stitute  no  part  of  the  lawful  vote.  If  they  find  a  printed  name  pasted 
over  another  name  on  the  ticket,  they  reject  the  name  on  tho 
paster.  If  they  find,  on  completing  the  count,  that  the  number  of 
ballota  in  the  box  exceeds  the  number  of  names  on  the  poll-lists,  they 
draw  out,  by  lot,  a  number  of  ballots  equal  to  tho  excess,  and  reject 
them  wholly  from  the  count.  It  may  bo  that  every  fraudulent  bal 
lot  was  put  in  by  one  political  party,  and  that  every  vote  drawn  out 
and  rejected  by  the  judges  was  lawfully  cast  by  the  other  party.  But 
the  judges  are  ministers  of  law  ;  and  they  purge  the  poll  before  de- 
claring'the  resnl*;.  It  is  not  the  count  of  ballots  actually  cast,  but 
the  result  aa  declared  by  these  judges,  which  constitutes  the  lawful 
vote  of  tho  precinct.  The  declarations  made  and  certified  to,  at  the 
four  thousand  ballot-boxes  of  Ohio,  are  forwarded  through  the  county 
officers  to  tho  designated  State  officers ;  and  there  remains  only  the 
ministerial  work  of  addition  and  declaration. 

In  Louisiana  it  was  found  impossible  to  preserve  peace  and  order 
at  all  the  polla  of  the  State,  if  the  local  officers  of  elections  were  in 
trusted  with  the  quasi-judicial  powers  which  are  exercised  by  such 
officera  in  Ohio.  And  hence,  in  the  matter  of  counting  votes,  the 
Louisiana  statute  enjoina  only  ministerial  duties  upon  the  local  elec 
tion  officers.  They  must  count  what  they  find  in  the  ballot-boxes, 
and  must  forward  the  result,  together  with  the  poll-lists,  through  tho 
parish  officers,  to  the  State  returning  board.  In  that  board  the  law 
has  vested  the  quasi-judicial  powers  without  which  no  popular  elec 
tion  can  be  conducted.  To  that  board  are  delivered  tho  unpurged 
polls  of  the  State,  and  the  law  requires  them — 

To  canvass  and  compile  the  returns  of  the  election  and  declare  the  names  of  all 
persons  and  officers  who  have  been  duly  and  lawfully  elected. 

In  making  that  canvass  and  compilation  tho  board  must  proceed 
in  the  order  laid  down  in  the  statute : 

They  shall  compile,  first,  tho  statements  from  all  polls  or  voting-places  at  which 
there  shall  have  been  a  fair,  free,  and  peaceable  registration  and  election. 


244 


ELECTORAL  COMMISSION. 


And  whenever  proof  is  made  to  the  board  as  required  by  the  stat 
ute — 

Of  any  riot,  tumult,  acts  of  violence,  intimidation,  armed  disturbance,  bribery,  or 
corrupt  influences,  which  prevented,  or  tended  to  prevent,  a  fair,  free,  and  peace 
able  vote  of  all  qualified  electors  entitled  to  vote  at  such  poll  or  voting-place,  such 
returning  officers  shall  not  canvass,  count,  or  compile  the  statement  of  votes  from 
such  poll  or  voting-place  until  the  statements  from  all  other  polls  or  voting-places 
shall  have  been  canvassed  and  compiled.  The  returning  officers  shall  then  pro 
ceed  to  investigate  the  statements  of  riot,  tumult,  acts  of  violence,  intimidation, 
armed  disturbance,  bribery,  or  corrupt  influences  at  any  such  poll  or  voting-place. 

And  for  that  purpose  they  have  power  to  send  for  persons  and  pa 
pers  and  examine  witnesses. 

The  statute  then  declares  that — 

If,  after  such  examination,  the  said  returning  officers  shall  bo  convinced  that  said 
riot,  tumult,  acts  of  violence,  intimidation,  armed  disturbance,  bribery,  or  corrupt 
influences  did  materially  interfere  with  the  purity  and  freedom  of  the  election  at 
such  poll  or  voting-place,  or  did  prevent  a  sufficient  number  of  the  qualified  elect 
ors  thereat  from  registering  and  voting  to  materially  change  the  result  of  the  elec 
tion,  then  the  said  returning  officers  shall  not  canvass  or  compile  the  statement  of 
the  votes  of  such  poll  or  voting-place,  but  shall  exclude  it  from  their  returns. 

Hero,  then,  is  a  board  upon  whom  the  State  of  Louisiana  has  con 
ferred  those  quasi-judicial  powers,  which,  in  other  States  are  usually 
conferred  upon  the  judges  of  election  in  the  several  voting-precincts. 
Who  shall  say  that  it  is  unrepublican  for  a  State  of  the  Union  to  adopt 
the  Louisiana  mode  of  conducting  elections  rather  than  tbe  Ohio 
mode?  Certainly  each  State  hag  the  right  to  choose  that  method 
winch  it  deems  best  for  its  own  protection. 

Third.  The  distinguished  Commissioner  [Mr.  THURMAN]  holds  that 
if  the  returning-board,  in  making  their  re  turns,  exceeded  the  juris 
diction  conferred  upon  them  by  law,  all  their  acts  in  excess  of  su<;h 
jurisdiction  are  void;  and  that  this  Commission  may  examine  and  de 
cide  whether  the  board  did  in  fact  exceed  its  jurisdiction. 

He  does  not  insist,  as  some  have  done,  that  the  two  Houses  of  Con 
gress  have  authority  to  question  the  real  voice  of  a  State  in  declaring 
Avho  has  been  chosen  as  electors  ;  but  he  holds  that  they  may  inquire 
whether  the  returning  board  did  utter  the  true  voice  of  the  State. 
This  proposition  is  strongly  put,  but  I  believe  it  to  be  unsound.  Its 
real  meaning  is  obscured  by  the  use  of  the  word  "jurisdiction."  If, 
under  cover  of  inquiring  into  the  jurisdiction  of  the  returning  board, 
Congress  may  go  behind  the  determination  of  that  board,  it  follows 
that  tho  power  of  Congress  is  not  limited  to  the  counting  of  tho  elect 
oral  votes,  but  extends  to  the  counting  of  the  popular  vote  by  which 
the  electors  themselves  were  chosen. 

The  authority  of  the  State  to  appoint  electors,  as  I  tried  to  show  in 
the  Florida  case,  carries  with  it  tho  authority  to  do  every  acfi  neces 
sary  to  complete  the  appointment,  and  to  determine  and  declare  who 
lias  been  appointed.  It  must  also  carry  with  it  the  authority  to  de 
cide  whether  the  board,  created  for  the  purpose  of  determining  and 
declaring  the  result,  has  acted  within  its  jurisdiction. 

If  the  State  has  made  no  complaint  of  excess  of  jurisdiction  on  the 
part  of  the  board,  it  is  difficult  to  see  how  the  two  Houses  of  Congress 
can  do  so.  Jurisdiction  in  general  may  depend  upon  territory,  upon 
time,  or  upon  subject-matter.  In  this  case  the  only  question  relates 
to  subject-matter.  But  the  very  subject-matter  upon  which  the 
board  is  authorized  to  act  is  summed  up  in  a  single  sentence :  "  They 
•ire  to  determine  what  persons  have  been  elected  according  to  law." 
That  they  did  determine  and  declare.  But  the  learned  Commissioner 
says  they  made  an  unjust  decision ;  that  they  excluded  votes  Avhich 
ought  to  have  been  counted,  and,  in  arriving  at  the  result,  adopted 
methods  which  were  beyond  their  jurisdiction.  But  like  every  other 
tribunal,  they  the  were  judges  of  their  own  jurisdiction,  unless  the 
law  itself  provides  another  tribunal  to  determine  that  question. 

It  will  not  do  to  say  that  because  a  judgment  is  erroneous,  it  is 
therefore  beyond  the  jurisdiction  of  the  tribunal  that  declares  it. 
Jurisdiction  to  decide  a  case  implies  jurisdiction  to  decide  it  wrong. 
Hundreds  of  cases  before  the  Supreme  Court  have  turned  on  the  ques 
tion  of  jurisdiction,  and  that  question  has  often  been  decided  by  a 
divided  court.  The  distinguished  members  of  this  Commission  who 
are  justices  of  that  court  will  probably  admit  that  that  great  tribu 
nal  may  sometimes  have  passed  upon  the  merits  of  a  case  of  which 
it  was  erroneously  held  that  they  had  jurisdiction.  But  as  their  judg 
ments  are  final,  even  such  erroneous  decision  was  valid. 

Now,  it  is  not  denied  that  the  law  of  Louisiana  confers  upon  the  re 
turning  board  the  power  "  to  determine  and  declare"  who  have  been 
appointed  its  electors.  That  duty  is  their  jurisdiction.  In  the  case  of 
the  governor  and  other  State  officers,  the  Legislature  may  revise  the 
finding  of  the  board,  but  in  determining  who  have  been  appointed 
electors,  no  such  power  of  revision  is  conferred  upon  the  Legislature. 
It  follows  that  the  determination  of  the  board,  if  not  overruled  by 
the  courts  of  that  State,  is  the  final  and  conclusive  decree  of  the 
State  itself.  That  decree  we  have  no  power  to  question  or  review. 
The  State  appoints  electors  and  declares  who  has  been  appointed. 
'1  he  utmost  that  can  be  claimed  for  the  two  Houses  of  Congress  is 
the  authority  to  count  the  vote  cast  by  the  electors.  In  doing  that 
they  may  inquire  whether  the  certificates  of  votes  are  genuine ; 
whether  they  are  signed  by  the  recognized  officers  of  the  State;  in 
short,  may  inquire  if  the  certificates  do,  in  fact,  represent  the  deter 
mination  of  the  State.  But  beyond  that  determination  Congress  can 
not  go.  In  issuing  the  certificates,  the  governor  does  not  represent 
the  State.  He  acts  at  the  request  of  Congress.  The  act  of  1792  makes 
it  his  duty  to  certify  to  the  President  of  the  Senate  what  the  State 
has  done  n  reference  to  the  appointment  of  electors.  If  his  certifi 


cate  does  not  testify  truly,  the  authority  which  counts  may  go  behind 
the  certificate  until  the  actual  declaration  of  the  State  is  found  ;  but 
there  the  inquiry  ends.  To  go  one  step  further,  is  to  invade  the  ex 
clusive  domain  of  State  authority. 

I  am  no  champion  of  State  sovereignty  as  that  doctrine  has  some 
times  been  taught  in  our  political  history.  But  there  are  rights  so 
clearly  and  exclusively  conferred  upon  the  States,  that  to  invade 
them  ia  to  break  up  the  solid  foundation  of  our  institutions;  and  if 
one  act  can  be  more  sovereign  than  another,  it  may  fairly  be  said  that 
the  most  sovereign  act  which  a  State  of  this  Union  can  perform  is  the 
act  of  choosing  the  men  who  shall  cast  its  vote  for  President  and  Vice- 
President.  Against  the  theory  now  urged  upon  us,  that  we  may  re 
view  all  the  processes  by  which  Louisiana  has  given  her  vote  for 
President  at  the  late  election,  I  oppose  this  highest  and  most  unques 
tioned  right  of  each  State  of  the  Union. 

It  has  been  said,  in  the  course  of  our  deliberations,  lhat  this  view 
of  the  case  is  technical ;  that  what  is  asked  on  the  other  side  is  to 
ascertain  the  very  right  and  truth  of  this  matter ;  to  ascertain  who 
was  in  fact  really  voted  for  by  the  people  of  Louisiana.  I  might  re 
spond  by  saying  that  the  objections  to  the  finding  of  the  returning- 
board  are  themselves  in  the  highest  degree  technical.  We  are  asked 
to  go  behind  the  decreeof  the  returniug-board ;  but  for  what  purpose  ? 
For  the  purpose  of  adding  to  the  count  some  votes  actually  cast  but 
which  were  rejected  by  the  board  as  unlawful.  We  are  told  that  some 
of  these  polls  were  improperly  rejected;  and  why  improperly?  Be 
cause  it  ia  alleged  that,  in  rejecting  these  polls,  certain  technical  for 
malities  were  not  complied  with.  For  example,  it  is  alleged  that 
the  protests  against  the  validity  of  these  rejected  ballots  were  not 
filed  within  forty-eight  hours  after  the  closing  of  the  ballot-boxes ; 
and  if  protests  were  not  filed  within  that  time,  the  board  could  not 
consider  them,  no  matter  how  corrupt  or  fraudulent  the  ballot  might 
be.  They  say  we  stand  upon  a  technicality ;  but  they  ask  us  to  break 
through  one,  only  to  rest  upon  another. 

If  this  Commission  has  authority  to  go  behind  the  decree  of  the  re 
turning  board  for  any  purpose,  it  must  have  the  power  to  go  behind 
it  for  all  the  purposes  of  ascertaining  the  truth ;  and  should  we  en 
ter  upon  such  an  inquiry,  should  wo  open  the  testimony  that  both 
sides  will  proffer,  wo  shall  find  a  group  of  allegations  like  this:  that 
in  forty -two  parishes  of  Louisiana,  where  both  sides  agreed  that  there 
was  a  fair  and  free  election,  the  Hayes  electors  received  an  aggregate 
of  6,000  majority  ;  that  in  two  groups  of  parishes  where  the  validity 
of  the  returns  was  contested,  there  existed  such  a  state  of  intimida 
tion  and  terror,  violence  and  murder,  that  the  voice  of  the  republican 
party  was  almost  wholly  suppressed  ;  that,  for  example,  in  the  par 
ish  of  East  Feliciaua,  which  for  years  had  cast  a  large  republican 
majority,  not  one  republican  vote  was  cast  at  the  late  election  ;  that 
in  many  precincts  within  the  disturbed  districts,  hundreds  of  negroes 
were  forced  by  the  coercion  of  threats  and  intimidation  to  vote  the 
democratc  ticket  against  their  will ;  and  that  on  the  whole,  withiu 
the  terrorized  districts,  the  voice  of  the  republican  voters  was  so  ef 
fectually  stifled  as  to  produce  an  apparent  majority  for  tho  demo 
cratic  electors,  sufficient  to  overcome  the  6,000  republican  majority 
in  the  undisturbed  portions  of  the  State. 

If  wo  take  one  step  behind  the  determination  of  the  State  author 
ities,  wo  must  go  to  the  bottom  of  the  case.  It  will  not  do  to  go  juwt 
far  enough  to  find  votes  actually  cast,  and  shut  our  eyes  to  the  vio 
lence  and  outrage  that  put  such  votes  in  the  boxes.  The  duty  of 
purging  the  polls,  and  finding  the  real  result  of  the  election,  was,  by 
law,  enjoined  u  pon  the  returning  board  of  the  State.  That  duty  they 
performed.  Whether  wisely  or  unwisely,  justly  or  unjustly  in  every 
instance,  I  am  not  prepared  to  say  ;  but  I  take  the  liberty  to  remark 
that  after  a  careful  study  of  the  history  of  that  election,  and  consid 
ering  the  turbulence  and  irregularities  which  have  long  prevailed  in 
that  State,  I  am  of  tho  opinion  that,  on  the  whole,  the  decree  of  the 
returning  board  is  in  accordance  with  substantial  justice.  I  have  no 
doubt  that  thousands  of  voters  were  prevented  from  the  exercise  of 
their  suffrage.  For  that  evil  the  laws  of  Louisiana  provide  no  rem 
edy.  But  they  do  command  the  rejection  of  polls  that  are  tainted  by 
violence,  intimidation,  and  fraud.  And,  in  doing  that,  the  State  has, 
in  part,  repaired  the  wrong  sought  to  be  committed  upon  her  people. 

Before  concluding,  I  must  refer  to  the  single  feature  in  which  the 
Louisiana  case  is  said  to  differ  from  the  case  of  Florida.  There  coun 
sel  offered  evidence  to  show  that  the  board  of  canvassers  had  acted 
upon  an  erroneous  view  of  the  law,  and  had  made  errors  and  mistakes 
in  determining  the  result  of  the  election.  Here  they  offer  evidence  to 
show  that  the  returning  board  acted  fraudulently  in  determining  tho 
result.  On  the  doctrine  that  fraud  vitiates  everything,  we  are  told 
that,  if  fraud  be  proved  in  this  case,  it  vitiates  the  determination  of 
the  board. 

But  the  allegation  of  fraud  does  not  confer  jurisdiction  of  a  sub 
ject  which  the  law  does  not  authorize  a  tribunal  to  consider.  The 
real  question  is  whether  tho  allegation  of  fraud  in  the  processes  of 
the  returning  board  confers  upon  the  two  Houses  of  Congress,  or  upon 
this  Commission  acting  in  their  stead,  the  jurisdiction  to  inquire  into 
those  processes  and  hear  evidence  to  prove  fraud. 

A  case  decided  by  the  Supreme  Court  of  the  United  States  in  1870, 
and  which  has  already  been  referred  to  by  one  of  the  commissioners 
for  another  purpose,  applies  so  strikingly  to  the  point  under  consid 
eration  that  I  will  cite  its  leading  feature.  I  refer  to  the  case  of  Vir 
ginia  vs.  West  Virginia,  11  Wall.,  39. 


ELECTORAL  COMMISSION. 


245 


In  adjusting  the  boundary  between  the  States  of  Virginia  and 
West  Virginia  an  agreement  was  made  that  the  counties  of  Jefferson 
and  Berkeley  might  become  a  part  of  West  Virginia,  on  condition 
that  a  majority  of  the  votes  cast  on  that  question  in  the  two  counties 
should  be  found  in  favor  of  annexation.  A  special  statute  regulated 
the  mode  of  conducting  the  election  and  determining  the  question, 
and  provided,  among  other  things,  that — 

The  governor  of  State,  if  of  the  opinion  that  the  said  vote  has  been  opened  ami 
held,  and  tho  result  determined  and  certified  to  pursuant  to  law,  shall  certify  the 
result  of  tho  same,  under  the  seal  of  this  State,  to  the  governor  of  said  State  of 
"West  Virginia. 

The  election  was  held  and  the  result  declared  by  the  governor.  But 
subsequently  the  State  of  Virginia  filed  a  bill  in  chancery  against 
West  Virginia  to  recover  back  the  jurisdiction  of  those  counties,  upon 
the  ground  that  the  vote  was  not  fairly  taken  and  that  the  returns 
upon  which  the  governor  issued  his  certificate  were  false  and  fraudu 
lent.  The  bill  alleged,  in  terms,  "  that  the  vote  taken  was  nob  a  fair 
and  full  expression  of  the  people  of  those  counties,  and  that  the  offi 
cers  who  made  their  returns  to  the  governor  falsely  and  fraudulently 
suggested  and  falsely  and  untruly  made  it  to  appear  to  the  governor 
of  the  Commonwealth  that  a  large  majority  of  the  votes  was  given 
in  favor  of  annexation;  and  that  his  determination  of  the  result,  be 
ing  based  upon  such  false  and  fraudulent  returns,  was  illegal  and 
void." 

These  allegations  are  strikingly  anal  ago  u&  to  tho  offers  of  proof 
now  pending  before  this  Commission.  In  reference  to  the  allegations 
of  fraud,  Mr.  Justice  MILLER,  delivering  the  opinion  of  the  court,  said: 

But  waiving  tho  defects  in  1  he  hill,  we  are  of  opinion  that  the  action  of  the  gov 
ernor  is  conclusive  of  the  vote  as  between  the  States  of  Virginia  and  West  Vir- 
ginia.    He  was,  in  legal  effect,  the  State  of  Virginia  in  this  matter.    In  addition  to 
is  position  as  executive  head  of  the  Stale,  the  Legislature  delegated  to  him  all  its 
power  in  tho  premises.    It  vested  him  with  largo  control  as  to  the  time  of  taking 
tho  vote,  and  it  made  his  opinion  of  the  result  the  condition  of  final  action. 

Even  upon  an  allegation  of  fraud  tho  court  would  not  go  behind 
the  determination  of  the  officer  on  whom  the  State  had  conferred 
the  authority  to  declare  the  result  of  the  election.  This  is  precisely 
the  case  before  us.  The  State  of  Louisiana  had  empowered  the  re 
turning  board  to  determine  and  declare  who  had  been  appointed 
electors,  and  having  provided  no  appeal  from  its  decision,  its  action 
became  the  final  and  conclusive  determination  of  the  State;  and 
neither  Congress  nor  this  Commission  has  any  authority  to  inquire 
whether  there  was  fraud  or  error  in  tho  process  by  which  the  deter 
mination  was  reached. 

To  sum  up  the  points  already  made  : 

In  appointing  her  electors,  the  State  of  Louisiana  has  followed  the 
method  prescribed  by  her  Legislature.  That  method  has  been  re 
viewed  by  her  supreme  judicial  tribunal  and  has  been  declared  to  bo 
in  accordance  with  her  constitution.  It  is  also  in  accordance  with 
tho  Constitution  of  the  United  States.  Of  all  tho  steps  leading  to 
that  appointment,  tho  State,  through  her  chosen  organs,  is  tho  sole 
determining  power.  She  has  determined  and  declared  that  the  per 
sons  named  in  Certificate  No.  1  were  duly  and  lawfully  appointed  her 
electors  of  President  and  Vice-President. 

Those  persons  met  at  the  time  required  by  law;  finding  vacancies 
in  their  number  they  filled  such  vacancies  in  tho  manner  prescribed 
by  the  law  of  the  State;  and,  in  pursuance  of  the  national  Constitu 
tion,  they  cast  their  votes  and  certified  the  same  to  the  President  of 
the  Senate.  These  certificates  have  been  opened  in  the  presence  of 
the  two  Houses  of  Congress  ;  and  there  remains  but  one  duty  more  : 
that  is,  to  obey  tho  imperial  command  of  the  Constitution,  which 
declares  "  tho  vote  shall  then  be  counted." 

Certificate  No.  2  comes  with  no  semblance  of  authority.  It  is  signed 
by  a  man  who  for  three  years  has  not  even  pretended  to  be  governor. 
It  is  based  upon  no  finding  or  declaration  of  any  officer  or  pretended 
officer  of  the  State.  It  has  no  validity  whatever.  It  carries  upon  its 
face  all  the  indications  of  worthlessness. 

I  shall  vote  against  receiving  the  proffered  evidence,  and  in  favor 
of  counting  tho  votes  reported  in  the  first  certificate. 


Itt-iitark*  of  Mr.  Commissioner  Field. 


The  Commission  having  under  consideration  tho  electoral  vote  of  Florida — 

Mr.  Justice  FIELD  said : 

Mr.  PRESIDENT  :  After  the  elaborate  arguments  made  yesterday  by 
the  members  of  the  Commission  from  tho  Senate  and  House  of  Rep 
resentatives,  I  cannot  hope  to  throw  much  light  on  the  subject  under 
discussion.  I  shall,  therefore,  confine  myself,  in  the  brief  observa 
tions  I  propose  to  make,  to  a  statement  of  what  I  deem  to  be  the  law 
applicable  to  tho  case  before  us. 

The  main  question  submitted  to  us,  the  one  to  which  all  other  in 
quiries  are  subordinate,  is,  whom  has  the  State  of  Florida  appointed 
as  electors  to  cast  her  vote  for  President  and  Vice-President.  The 
electoral  act,  under  which  we  are  sitting,  makes  it  onr  duty  to  de 
cide  "  how  many  and  what  persons  were  duly  appointed  electors  "  in 
that  State. 

The  Constitution  declares  that  each  State  shall  appoint  electors  "  in 
such  manner  as  the  Legislature  thereof  may  direct."  It  fixes  the 


number  to  bo  appointed,  which  is  to  be  equal  to  the  whole  number  of 
Senators  and  Representatives  to  which  the  State  may  be  entitled  in 
Congress.  It  declares  who  shall  not  be  appointed ;  that  is,  no  Sena 
tor  or  Representative,  or  person  holding  an  office  of  trust  or  profit 
under  tho  United  States.  With  the  exception  of  these  provisions  as 
to  tho  number  of  electors  and  the  ineligibility  of  certain  persons,  the 
power  of  choice  on  the  part  of  the  State  is  unrestricted.  The  man 
ner  of  appointment  is  left  entirely  to  its  Legislature. 

What,  then,  was  the  manner  of  appointment  directed  by  tho  Legis 
lature  of  Florida?  This  is  manifestly  a  proper  subject  for  our  in 
quiry,  for  if  another  and  different  manner  from  that 'directed  by  tho 
Legislature  has  been  followed  in  the  appointment  of  persons  as  elect 
ors,  such  persons  are  not  "  duly  appointed"  in  tho  State,  and  we  must 
so  decide.  Any  substantial  departure  from  the  manner  prescribed 
must  necessarily  vitiate  tho  whole  proceeding.  If,  for  example,  the 
appointment  of  electors  should  bo  made  by  the  governor  of  a  State, 
when  its  Legislature  had  directed  that  they  should  be  chosen  by  the 
qualified  voters  at  a  general  election,  the  appointment  would  be  clearly 
invalid  and  have  to  be  rejected.  So,  too,  if  tho  Legislature  should 
prescribe  that  the  appointment  should  be  made  by  a  majority  of  the 
votes  cast  at  such  election,  and  tho  canvassers,  or  other  officers  of 
election,  should  declare  as  elected  those  who  had  received  only  a  plu 
rality  or  a  minority  of  the  votes,  or  the  votes  of  a  portion  only  of 
the  State,  the  declaration  would  be  equally  invalid  as  not  conforming 
to  the  legislative  direction ;  and  the  appointment  of  tho  parties  thus 
declared  elected  could  only  be  treated  as  a  nullity. 

lu.  inquiring  whether  the  manner  prescribed  by  the  State  has  been 
followed,  we  do  not  trench  upon  any  authority  of  the  State,  or  ques 
tion  in  any  respect  her  absolute  right  over  the  subject,  but,  on  the 
contrary,  we  seek  only  to  give  efi'ect  to  her  will  and  ascertain  tho  ap 
pointment  she  has  actually  made. 

What,  then,  was  tho  manner  directed  by  the  Legislature  of  Florida  ? 
It  was  by  popular  election.  It  was  by  the  choice  of  a  majority  of 
the  qualified  voters  of  the  State.  When  their  votes  were  cast  on  the 
7th  of  November,  the  electors  were  appointed, and  all  that  remained 
was  to  ascertain  and  declare  the  result.  The  appointment  was  then 
completed  and  could  not  afterwards  be  changed.  What  subsequently 
was  required  of  tho  officers  of  election  and  canvassing  boards  was  an 
authentic  declaration  of  the  result.  For  this  purpose  tho  votes  in 
each  county  were  to  be  canvassed  by  certain  designated  officers  of 
the  county  within  a  prescribed  period  after  tho  election,  and  dupli 
cate  certificates  wero  to  be  made  and  signed  by  them,  containing  tho 
whole  number  of  votes  given  for  each  officer,  the  names  of  the  per 
sons  for  whom  they  were  given,  and  tho  number  of  votes  given  to 
each  person.  A  record  was  to  be  made  of  the  certificate,  and  one  of 
tho  duplicates  was  to  bo  forwarded  to  the  secretary  of  state,  and  tho 
other  to  the  governor.  On  tho  thirty-fifth  day  after  tho  election,  or 
sooner,  if  the  returns  from  the  several  counties  were  received,  tho 
secretary  of  state,  tho  attorney-general,  and  tho  comptroller  of  publ  ic 
accounts,  or  any  two  of  them,  together  with  any  other  member  of  tho 
cabinet  who  might  be  designated  by  them,  were  required  to  meet  at 
the  office  of  the  secretary  of  state,  pursuant  to  notice  to  bo  given  by 
him,  and  form  a  board  of  state  canvassers,  and  proceed  to  canvass  tho 
returns  of  the  election  and  determine  and  declare  who  were  elected 
"  as  shown  lij  such  returns."*  Tho  duty  of  tho  canvassers  under  tho 
law  of  tho  State  was  ministerial,  involving  only  the  exercise  of  such 
judgment  as  was  required  to  determine  whether  tho  papers  returned 
were  genuine,  and  were  executed  in  conformity  with  tho  requirements 
of  the  law.  Such  was  tho  construction  given  to  the  statute  by  tho  su 
preme  court  of  the  State  in  the  proceeding  against  the  canvassers 
taken  on  tho  relation  of  Mr.  Drew,  who  was  a  candidate  for  governor 
at  the  same  election,  at  which  tho  electors  for  President  and  Vice- 
President  were  chosen,  and  votes  for  whom  were  thrown  out  by  tho 
canvassers  upon  tho  same  assumed  power  that  votes  for  the  Tilden 
electors  were  thrown  out  by  them.  In  giving  its  decision  in  that 
case,  the  supreme  court  said : 

The  view  that  the  board  of  State  canvassers  is  a  tribunal  haying  power  strictly 
judicial,  such  as  is  involved  in  the  determination  of  the  legality  of  a  particular 
Vote  or  election,  cannot  be  sustained. — All  of  tho  acts  which  this  hoard  can  do 
under  the  statute  must  be  based  upou  tho  returns ;  and  while  in  some  cases  the  otli  - 


*  The  following  is  the  text  of  the  law,  being  section  4  of  the  act  of  February  27, 
1873: 

"  Srcc.  4.  On  the  thirty-fifth  day  after  the  holding  of  any  general  or  special  election 
for  any  State  officer,  member  of  the  Legislature,  or  Representative  in  Congress,  or 
sooner,  if  the  returns  shall  have  been  received  from  the  several  counties  wherein 
elections  shall  have  been  held,  the  secretary  of  state,  attorney-general  and  the 
comptroller  of  public  accounts,  or  any  two  of'  them,  together  with  any  other  mem 
ber  of  the  cabinet  who  may  be  designated  by  them,  shall  meet  at  tho  ofHce  of  the 
secretary  of  state,  pursuant  to  notice  to  be  given  by  the  secretary  of  state,  and  form 
a  board  of  state  canvassers,  and  proceed  to  canvass  tho  returns  of  said  election  and 
determine  and  declare  who  shall  have  been  elected  to  any  such  office  or  as  such 
member,  as  shown  by  such  returns.  If  any  such  returns  shall  be  shown  or  shall  ap 
pear  to  be  so  irregular,  false,  or  fraudulent  that  the  board  shall  be  unable  to  deter 
mine  the  true  vote  for  any  such  officer  or  member,  they  shall  so  certify,  and  shall 
not  include  such  return  in  their  determination  and  declaration ;  and  the  secretary 
of  state  shall  preserve  and  tile  in  hisoffi ce  all  such  returns,  together  with  such  other 
documents  and  papers  as  may  have  been  received  by  him  or  by  said  board  of  can 
vassers.  The  said  board  shall  make  and  sign  a  certificate  containing,  in  words 
written  at  full  length,  the  whole  number  of  votes  given  for  each  office,  the  number 
of  votes  given  for  each  person  for  each  office  and  for  member  of  the  Legislature,  and 
therein  declare  the  result,  which  certificate  shall  be  recorded  in  the  office  of  tho 
secretary  of  state  in  a  book  to  be  kept  for  that  purpose  ;  and  tho  secretary  of  state 
shall  cause  a  certified  copy  of  such  certificate  to  be  published  once  in  one  or  more 
newspapers  printed  at  tho  seat  of  government." 


246 


ELECTORAL  COMMISSION. 


rcrs  composing  the  board  may,  like  all  ministerial  officers  of  similar  character,  ex- 
elude  what  imrporte  to  be  a  return  for  irregulaiity,  still  everything  they  are  au- 
thorized  to  do  Is  limited  to  what  ia  sanctioned  by  authentic  and  true  returns  before 
them  Their  niml  act  and  determination  must  be  such  au  appears  from  and  ia 


ower  is  limited  by  the  express  words  of  the  statute,  which  gives  them 
10  sisrniuc  of  a  certificate  containing  the  whole  number  of  votes  given 


termination  of  a  right  after  notice,  according  to  the  general  law  of  the  land  as  to 
the  rights  of  parties,  but  it  is  a  declaration  of  a  conclusion  limited  and  restricted 
by  the  letter  of  the  statute.  Such  limited  declaration  and  determination  by  a 
board  of  Stato  canvassers  baa  been  declared  by  a  Jitrge  majority  of  the  courts  to 


islative,  or  judicial,  which  ia  not  bound  and  fixed  by  the  returns  before  them.  The 
duty  to  count  these  returns  has  been  enforced  by  mandamus  BO  repeatedly  in  the 
courts  of  the  several  States  of  the  Union,  that  the  power  of  the  courts  in  this  re- 
Bpect  has  long  since  ceased  to  be  an  open  question. 

!  The  only  clause  of  the  statute,  which  would  seem  to  invest  the  can 
vassers  with  something  more  than  mere  ministerial  authority,  is  the 
one  which  provides  that,  "  if  any  such  returns  shall  bo  shown  or  shall 
appear  to  he  so  irregular,  false,  or  fraudulent  that  the  board  shall  be 
unable  to  determine  the  true  vote  for  any  officer  or  member,  they 
shall  so  certify,  and  shall  not  include  such  return  in  their  determina 
tion  and  declaration."  Great  stress  was  placed  by  counsel,  in  the 
argument  before  the  Commission,  and  by  Mr.  Commissioner  MORTON 
yesterday,  upon  this  clause,  as  though  it  gave  unlimited  discretion 
and  power  to  the  canvassers  to  exclude,  in  their  count,  such  votes  as 
they  might  judge  from  any  cause  to  have  been  illegally  or  irregularly 
cast.  But  it  is  evident  from  the  language  used  and  its  context,  that 
the  clause  never  contemplated  the  exercise  of  any  such  undefined  and 
arbitrary  power  over  the  returns,  but  only  intended  to  authorize  the 
exclusion  from  the  count  of  a  return,  whenever  from  evidence,  intrin 
sic  or  extrinsic,  of  its  irregularity,  falsity,  or  fraudulent  character, 
the  canvassers  were  unable  to  determine  the  actual  vote  cast  for  any 
officer.  It  gave  no  authority  to  reject  the  votes  actually  given,  ex 
cept  when  the  canvassers  were  unable  to  ascertain  for  whom  they 
were  intended,  much  less  to  enter  upon  any  judicial  investigation  into 
the  legality  of  the  votes.  In  considering  this  clause  the  supreme 
court  of  the  State,  in  the  case  of  Drew,  already  cited,  held  that  the 
words  t-rue  vote  meant  the  vote  actually  cast  as  distinct  from  the  legal 
vote ;  and  that  this  followed  from  the  clear  general  duty  of  the  can 
vassers  to  ascertain  and  certify  the  "votes given"  for  each  person  for 
each  office ;  and  because  to  determine  whether  a  vote  cast  was  a  legal  vote 
was  beyond  the  power  of  tlie  board. 

\Ve  have,  then,  a  decision  of  the  supreme  court  of  Florida  giving 
an  authoritative  construction  to  the  act  under  which  the  electors  for 
President  and  Vice-President  were  chosen,  to  the  effect  that  the  pow 
ers  of  the  canvassers  under  the  act  were  purely  ministerial,  and  that 
their  whole  duty  consisted,  whenever  they  were  enabled  to  determine 
the  actual  vote  given  for  any  officer,  in  simply  computing  arithmeti 
cally  the  number  of  votes  cast,  as  shown  by  the  returns,  and  declar 
ing  the  result  by  a  certificate  of  the  fact  over  their  signatures. 
"Whatever  beyond  this  was  done  by  them  was  in  excess  of  their  au 
thority  and  void.  And  I  hardly  need  add,  in  this  presence,  that  what 
ever  was  done  by  them  in  excess  of  their  authority  was  not  done  in 
any  manner  directed  by  the  Legislature  of  the  State. 

The  construction  given  to  a  statute  of  a  State  by  its  supreme  court 
is,  as  we  all  know,  considered  as  part  of  the  statute  itself,  as  much  so 
as  if  embodied  in  its  very  text.  Such  is  the  language  of  the  Supreme 
Court  of  the  United  States  in  all  its  decisions.  Thus,  in  Leffiugwell 
vs.  Warren,  reported  in  2d  Black,  the  court  said : 

The  construction  given  to  a  statute  of  a  State  by  the  highest  judicial  tribunal  of 
such  State  is  regarded  as  a  part  of  the  statute  and  is  as  binding  upon  the  courts  of 
the  United  States  aa  the  text. 

And  again,  in  Christy  vs.  Pridgeon,  reported  in  4th  Wallace,  the 
court  said : 

The  interpretation  within  the  jurisdiction  of  one  State  becomes  a  part  of  thelaw 
of  that  State,  as  much  so  as  if  incorporated  into  the  body  of  it  by  the  Legislature. 

Having  thus  briefly  stated  the  requirements  of  the  law  of  Florida, 
providing  for  the  appointment  of  electors,  and  thus  shown  the  man 
ner  of  appointment  directed  by  its  Legislature,  I  will  proceed  to  state 
the  course  actually  pursued  by  the  canvassers,  from  which  it  will  ap 
pear  whether  there  was  any  departure  by  them,  and  if  any,  how  great 
a  departure,  from  the  direction  given. 

Tbe  returns  sent  from  the  several  counties  to  the  State  canvassers 
all  disclosed  for  whom  the  votes  were  cast.  It  is  not  pretended  that 
any  of  them  appeared,  or  was  shown  to  be  either  so  irregular,  false, 
or  fraudulent  that  the  canvassers  were  unable  to  determine  the  actual 
votes  given  for  any  officer.  The  pretense  is  that  some  of  the  votes 
returned  were  illegally  or  irregularly  given,  not  that  there  was  any 
doubt  for  whom  they  were  intended.  Under  these  circumstances,  the 
duty  of  the  canvassers,  according  to  the  decision  of  the  supreme  court, 
and  according  to  the  express  language  of  the  statute,  Avas  simply  to 
add  together  the  votes  and  declare,  under  their  certificate,  the  result 
as  shown  by  the  returns.  In  so  doing  they  would  have  carried  out  the 
direction  of  the  Legislature.  Being  added  together,  the  returns  would 


have  shown  that  the  Tilden  electors  were  chosen.  But  the  canvass 
ers,  instead  of  discharging  the  simple  ministerial  duty  devolved  upon 
them,  undertook  to  exercise  judicial  functions  and  pass  upon  the 
legality  of  votes  cast  at  various  precincts  in  different  counties,  hear 
ing  evidence  and  counter-evidence  upon  the  subject,  consisting  partly 
of  oral  testimony,  but  principally  of  ex-parte  affidavits,  and  in  numer 
ous  instances,  upon  one  pretense  or  another,  throwing  out  votes  given 
for  the  Tilden  electors,  thereby  changing  the  result.  In  this  way  a 
majority  of  the  canvassers  came  to  the  conclusion  that  the  Hayes 
electors  were  chosen.  In  no  other  way  could  such  a  result  have  been 
reached. 

Now,  it  matters  not,  for  the  purpose  of  my  argument,  whether,  in 
taking  these  proceedings  and  in  exercising  judicial  functions,  the 
canvassers  were  actuated  by  honest  or  by  corrupt  motives  ;  whether 
their  conduct  was  the  result  of  a  mistaken  conception  of  their  pow 
ers,  or,  as  is  alleged,  of  a  conspiracy  to  defraud  the  State  of  her  choice. 
In  any  view  that  may  be  taken,  it  is  clear  that  in  deciding  upon  the 
legality  of  votes  embraced  in  the  returns,  and  in  rejecting  votes  from 
their  count  on  the  ground  of  their  asserted  illegality  or  upon  any 
other  ground,  they  exceeded  their  jurisdiction,  and  their  action  in 
that  particular  was  without  any  validity  whatever. 

A  result  declared,  after  the  returns  were  altered  by  the  elimination 
of  votes  embraced  therein,  was  not  a  result  obtained  in  the  manner 
directed  by  the  Legislature  of  the  State.  It  was  not  a  result  which 
gave  the  offices  to  those  who  had  received  thehighest  number  of  votes, 
as  required  by  the  law  of  the  State,  but  to  those  who  had  received 
only  a  minority  of  the  votes.  The  whole  proceeding,  instead  of  being 
in  accordance  with,  was  in  direct  contravention  of  the  will  of  the 
Legislature.  Surely  it  would  not  be  pretended  that  if  a  portion  of 
the  returns  had  been  feloniously  abstracted  from  the  office  of  the  sec 
retary  of  state,  a  canvass  founded  upon  the  returns  remaining  would 
show  an  appointment  of  electors  in  the  manner  prescribed  by  the 
Legislature  of  the  State.  A  felonious  abstraction  and  an  unauthor 
ized  exclusion  of  votes  are  in  legal  eft'ect  the  same  thing. 

By  the  act  of  Congress  the  electoral  colleges  were  required  to  meet 
on  the  first  Wednesday  in  December,  Avhich  was  the  6th  of  the  mouth. 
The  canvassers  commenced  their  labors  on  the  27th  of  November,  the 
returns  from  the  several  counties  being  at  that  time  all  received,  but 
did  not  complete  the  count  until  the  morning  of  the  day  appointed 
for  the  meeting  of  the  electoral  college.  Two  of  them  then  certified 
to  the  election  of  the  Hayes  electors ;  and  the  governor  issued  to 
them  a  certificate  of  their  election.  One  of  the  canvassers,  the  attor 
ney-general,  certified  that  by  the  authentic  returns  of  the  votes  in  the 
several  counties  on  file  in  the  office  of  the  secretary  of  state,  and  seen 
by  him  as  a  member  of  the  board,  the  Tilden  electors  were  chosen. 
The  two  sets  of  electors  met  on  the  same  day,  and  at  the  same  time,  and 
in  the  same  building,  and  both  sets  voted,  and  transmitted  their  re 
spective  certificates  of  their  proceedings  in  duplicate  to  the  President 
of  the  Senate  at  Washington,  one  copy  by  a  special  messenger  and 
one  by  mail.  Which  of  these  two  sets  of  electors  was  duly  appointed  by 
the  State?  Both  were  not  thus  appointed.  After  the  statement  I  have 
made  of  the  character  of  the  returns,  and  the  manner  in  which  they 
were  altered,  there  can  be  no  reasonable  doubt  that  the  Tilden  elect 
ors  were  thus  appointed.  They  received  a  majority  of  the  votes  cast 
as  shown  by  the  returns,  and  the  law  of  the  State  declares  that  par 
ties  receiving  the  highest  number  of  votes  for  any  office  shall  bo 
elected  to  such  office. 

Mr.  President,  I  have  spoken  of  the  matters  appearing  by  the  re 
turns,  and  of  the  proceedings  of  the  canvassers,  as  facts  in  proof  be 
fore  us.  I  have  done  so  because  the  evidence  contained  in  the  docu 
ments  transmitted  to  us  with  the  papers  received  and  opened  by  the 
President  of  the  Senate,  if  we  are  allowed  to  look  into  them,  estab 
lishes  beyond  controversy  the  facts  which  I  have  stated.  Why,  then, 
should  we  not  consider  that  evidence  and  act  upon  it  ?  We  are  an 
swered  that  the  certificate  of  the  govern  or  is  the  only  evidence  which 
the  Commission  can  receive  of  the  appointment  of  the  electors.  The 
Constitution  does  not  prescribe  the  evidence  which  shall  be  received 
of  the  appointment.  That  only  provides  for  the  voting  of  the  elect 
ors,  and  the  transmission  by  them  of  a  list  of  the  persons  voted  for,  to 
the  seat  of  Government,  directed  to  the  President  of  the  Senate. 
Congress  has,  therefore,  enacted  that  the  governor  shall  issue  a  cer 
tified  list  of  the  electors  to  them  before  the  time  fixed  for  their  meet 
ing.  The  language  of  the  act  is  that — 

It  shall  be  the  duty  of  the  executive  of  each  State  to  cause  three  lists  of  the 
names  of  the  electors  of  such  State  to  be  made  and  certified,  and  to  be  delivered  to 
the  electors  of  such  State  on  or  before  the  day  on  which  they  are  required  by  the 
previous  section  to  meet. — Revised  Statutes,  section  136. 

There  is  nothing  in  this  act  which  declares  that  the  certificate  thus 
issued  shall  be  conclusive  of  the  appointment.  It  does  not  say  that  the 
evidence  thus  furnished  is  indispensable,  or  that  other  evidence  of  the 
appointment  may  not  be  received.  Its  only  object  was  simply  to  pro 
vide  convenient  evidence  of  the  appointment  for  the  consideration  of 
the  two  Houses  of  Congress  when  cal  led  upon  to  cou  nt  the  votes.  It  was 
not  its  purpose  to  control  their  judgment  in  deciding  between  differ 
ent  sets  of  papers  purporting  to  contain  the  votes  of  the  State.  A 
compliance  with  the  act  is  not  obligatory  upon  the  executive  of  the 
State.  He  is  not  in  that  respect  subject  to  the  control  of  Congress. 
He  could  not  be  compelled  to  give  the  certificate,  nor  could  ho  be 
subject  to  any  punishment  for  refusal  to  act  in  the  matter.  And  cer 
tainly  when  Congress  can  furnish  no  means  to  control  the  action  of 


ELECTORAL  COMMISSION. 


247 


a  State  officer,  it  cannot  render  his  action  either  indispensable  or  con 
clusive  of  the  rights  of  the  State.  Instances  may  be  readily  imagined 
where,  from  accident,  disability,  or  sickness  of  the  governor,  the  cer 
tified  lists  could  not  be  obtained,  or  be  obtained  and  delivered  in  time, 
or  if  obtained,  might  be  lost  or  destroyed  before  delivery.  In  such  cases 
would  there  be  no  remedy  ?  Would  the  State  in  such  cases  lose  its  vote  ? 
Surely  no  one  will  seriously  contend  for  such  a  result.  Suppose,  fur 
ther,  that  the  governor,  by  mistake  or  fraud,  should  deliver  certified 
lists  in  favor  of  persons  not  appointed  electors;  for  instance,  to  per 
sons  who  had  not  received  a  majority  of  the  votes  cast  for  those  offi 
cers,  (the  persons  having  such  majority  of  votes  being  eligible  to  the 
office  under  the  Constitution,)  would  it  be  pretended  that  the  will  of 
the  State  should  be  thwarted  through  the  force  of  his  certificate  T  I 
feel  confident  that  no  lawyer  in  the  country  would  hold  that  the  truth 
could  not  be  shown  in  such  case  against  the  face  of  the  certificate ; 
and  I  will  never  believe  in  the  possibility  of  this  Commission  so  hold 
ing  until  I  see  its  decision  to  that  effect. 

The  truth  is,  a  certificate  is  only  prirna  facie  evidence  of  the  fact 
certified.  Indeed,  I  venture  to  assert,  without  fear  of  successful 
contradiction,  that  in  the  absence  of  positive  law  declaring  its 
effect  to  be  otherwise,  a  certificate  of  any  officer  to  a  fact  is  never 
held  conclusive  on  any  question  between  third  parties ;  it  is  always 
open  to  rebuttal.  There  are,  indeed,  cases  where  a  party  who 
has  been  induced  to  act  upon  the  certificate  of  a  fact  may  insist 
that  the  truth  of  the  certificate  shall  not  be  denied  to  his  injury,  but 
those  cases  proceed  upon  the  doctrine  of  estoppel,  which  has  no  ap 
plication  here.  The  fact  here  to  be  ascertained  is,  who  have  been 
duly  appointed  electors  of  the  State  of  Florida,  not  who  have  the 
certificates  of  appointment.  It  is  the  election  and  not  the  certificate 
which  gives  the  right  to  the  office.  The  certificate  being  only  evi 
dence,  can  be  overcome  by  any  evidence  which  is  in  its  nature  supe 
rior.  And  this  is  equally  true  of  the  certificate  issued  under  the  law 
of  the  State  as  of  the  certificate  issued  under  the  act  of  Congress. 
And  it  is  equally  true  of  the  certificate  of  the  board  of  canvassers. 
Those  officers  exercised  mere  ministerial  functions ;  they  possessed 
no  judicial  power;  their  determination  had  none  of  the  character 
istics  or  couclusiveuess  of  a  judicial  proceeding;  it  has  been  so  de 
cided  by  the  supreme  court  of  the  State.  And  yet,  in  the  opinion  of 
the  distinguished  Commissioner  from  Indiana,  [Senator  MOUTON,] 
and  some  other  Commissioners  from  the  Senate  and  House  appear 
to  concur  with  him,  the  determination  of  those  canvassers,  as  ex 
pressed  by  their  certificate,  is  more  sacred  and  binding  than  the 
judgment  of  the  highest  court  of  the  laud,  incapable  of  successful 
attack  on  any  ground  whatever. 

I  put,  yesterday,  to  these  gentlemen  this  question :  Supposing  the 
canvassers  had  made  a  mistake  in  addition  in  footing  up  the  returns, 
a  mistake  that  changed  the  result  of  the  election,  and  acting  upon 
the  supposed  correctness  of  the  addition  they  had  issued  a  certificate 
to  persons  as  electors  who  were  not  in  fact  chosen,  and  such  persons 
had  met  and  voted  for  President  and  Vice-President  and  transmitted 
the  certificate  of  their  votes  to  Washington  ;  and  afterwards,  before 
the  vote  was  counted  by  the  two  Houses  of  Congress,  the  mistake 
was  discovered — was  there  no  remedy?  The  gentlemen  answered 
that  there  was  none;  that  whatever  mistakes  of  the  kind  may  have 
been  committed  must  be  corrected  before  the  vote  was  cast  by  the 
electors  or  they  could  not  bo  corrected  at  all.  If  this  be  sound  doc 
trine,  then  it  follows  that  by  a  clerical  mistake  in  arithmetical  com 
putation  a  person  may  be  placed  in  the  Chief  Magistracy  of  the  nation 
against  the  will  of  the  people,  and  the  two  Houses  of  Congress  are 
powerless  to  prevent  the  wrong. 

But  the  gentlemen  do  not  stop  here.  I  put  the  further  question  to 
them :  Supposing  the  canvassers  were  bribed  to  alter  the  returns, 
and  thus  change  the  result,  or  they  had  entered  into  a  conspiracy  to 
committ  a  fraud  of  this  kind,  and  in  pursuance  of  the  bribery  or  con 
spiracy  they  did  in  fact  tamper  with  and  alter  the  returns,  and  de 
clare  as  elected  persons  not  chosen  by  the  voters,  and  such  persons 
had  voted  and  transmitted  their  vote  to  the  President  of  the  Senate, 
but  before  the  vote  was  counted  the  fraud  was  detected  and  exposed — 
was  there  no  remedy  ?  The  gentleman  answered,  as  before,  that  there 
was  none ;  that  whatever  fraud  may  have  existed  must  be.  proceeded 
against  and  its  success  defeated  before  the  electors  voted  ;  that  what 
ever  related  to  their  action  was  then  a  "-losed  book.  If  this  be  sound 
doctrine,  it  is  the  only  instance  in  the  world  where  fraild  becomes  en 
shrined  and  sanctified  behind  a  certificate  of  its  authors.  It  is  ele 
mentary  knowledge  that  fraud  vitiates  all  proceedings,  even  the 
most  solemn  ;  that  no  form  of  words,  no  amount  of  ceremony,  and  no 
solemnity  of  procedure  can  shield  it  from  exposure  and  protect  its 
structure  from  assault  and  destruction.  The  doctrine  asserted  here 
would  not  be  applied  to  uphold  the  pettiest  business  transaction,  and 
I  can  never  believe  that  the  Commission  will  give  to  it  any  greater 
weight  in  a  transaction  affecting  the  Chief  Magistracy  of  the  nation. 

But  the  gentlemen  do  not  stop  here.  I  put  the  further  question  to 
them  :  Supposing  the  canvassers  were  coerced  by  physical  force,  by 
pistols  presented  at  their  heads,  to  certify  to  the  election  of  persons 
not  chosen  by  the  people,  and  the  persons  thus  declared  elected  cast 
the  vote  of  the  State — was  there  no  remedy  ?  and  the  answer  was 
the  same  as  that  given  before.  For  any  wrong,  mistake,  fraud,  or 
coercion  in  the  action  of  the  canvassers,  say  these  gentlemen,  the 
remedy  must  be  applied  before  the  electors  have  voted.  The  work  of 
the  electors  is  done  when  they  have  acted,  and  there  is  no  power 
under  existing  law  by  which  the  wrong  can  be  subsequently  righted. 


The  canvass  of  the  votes  in  Florida  was  not  completed  until  the 
morning  of  the  day  of  the  meeting  of  the  electoral  college,  and  within  a 
few  hours  afterwards  its  vote  was  cast.  To  have  corrected  any  mis 
take  or  fraud  during  these  hours,  by  any  proceeding  known  to  the 
law,  would  have  been  impossible.  The  position  of  these  gentlemen  is, 
therefore,  that  there  is  no  remedy,  however  great  the  mistake  or  crime 
committed.  If  this  bo  sound  doctrine,  if  the  representatives  in  Con 
gress  of  forty-two  millions  of  people  possess  no  power  to  protect  the 
country  from  the  installation  of  a  Chief  Magistrate  through  mistake, 
fraud,  or  force,  we  are  the  only  self-governing  people  in  the  world  held 
in  hopeless  bondage  at  the  mercy  of  political  jugglers  and  tricksters. 

This  doctrine,  which  seems  to  me  to  be  as  unsound  in  law  as  it  is 
shocking  in  morals,  is  supported  upon  the  notion  that  if  we  are  per 
mitted  to  look  behind  the  certificate  of  the  governor,  and  of  the  can 
vassing  board  upon  which  that  certificate  is  founded,  we  shall  open 
the  door  to  an  investigation  which  may  not  be  brought  to  a  close  be 
fore  the  4th  of  March.  The  argument  is  that  as  the  new  President 
is  to  be  installed  on  that  day,  and  the  votes  of  the  electoral  colleges 
are  to  be  counted  in  February,  all  inquiry  as  to  the  truth  of  that  cer 
tificate  is  forbidden,  because  it  may  be  impracticable  to  carry  the 
inquiry  to  a  termination  in  time  for  the  installation.  This  position 
was  taken  by  counsel  before  the  Commission,  and  presented  in  every 
possible  form,  and  was  repeated  yesterday  by  Commissioners  HOAR 
and  GAKFIRLD,  and  dwelt  upon  by  them  as  though  it  were  conclusive 
of  the  question.  The  argument  amounts  only  to  this,  that  the  diffi 
culty  of  exposing  in  time  a  mistake  or  fraud  of  the  canvassing  board 
is  a  sufficient  reason  for  not  attempting  the  exposure  at  all,  and  for 
quietly  submitting  to  the  consequent  perpetration  of  a  monstrous 
wrong. 

It  is  true  that  the  machinery  for  the  election  of  President,  devised 
by  the  framers  of  the  twelfth  amendment  to  the  Constitution,  con 
templates  the  induction  of  the  successful  candidate  into  office  on  the 
4th  of  March,  and  that  the  office  shall  not  on  that  day  be  either  vacant 
or  disputed.  I  admit,  therefore,  to  the  fullest  extent  claimed  by 
gentlemen,  that  no  proceedings  can  be  permitted  which  will  postpone 
the  counting  of  the  votes  so  as  to  prevent  a  declaration  within  that 
period  of  the  person  elected,  or  a  reference  of  the  election  to  the  House 
of  ^Representatives.  But  this  limitation  of  time,  so  far  from  being 
a  reason  for  submitting  to  a  mistake  or  to  a  fraud,  is  a  reason  for 
immediate  action  to  correct  the  one  and  expose  the  other.  What 
ever  is  done  to  overthrow  the  prima  facie  evidence  presented  by  the 
certificate  of  the  governor  must  be  commenced,  carried  forward,  and 
completed,  so  that  the  result  of  the  proceeding  can  be  considered  by 
the  two  Houses  of  Congress  when  the  certificates  are  opened  in  their 
presence  and  the  votes  are  counted.  The  countervailing  evidence 
must  be  presented  in  some  authentic  form,  like  the  judgment  of  a 
competent  tribunal,  or  the  legislative  declaration  of  a  State,  or  the 
finding  of  an  appropriate  committee  approved  by  the  House  appoint 
ing  it ;  and  then  it  will  constitute  a  basis  for  the  action  of  the  Houses 
without  delaying  their  proceedings.  If,  for  example,  the  certificate 
of  the  governor  were  forged,  or  designated  as  electors  persons  for 
whom  no  votes  were  cast,  the  fact,  if  it  were  desired  to  ask  the  action 
of  the  two  Houses  upon  it  in  counting  the  vote,  should  bo  presented 
in  such  a  conclusive  form  as  to  be  the  subject  of  consideration  as  a 
fact  found.  If  an  investigation  is  then  required  to  establish  the  fact 
alleged,  I  admit  that  the  proceeding  cannot  be  had,  except  by  permis 
sion  of  the  two  Nouses,  by  reason  of  the  delay  it  would  occasion.  The 
two  Houses  cannot  be  required  to  stop  the  count  to  take  testimony 
and  investigate  the  truth  of  mere  allegations ;  but  if  the  fact  of  for 
gery  or  falsity  has  already  been  found  by  competent  authority,  and 
the  finding  is  laid  before  the  two  Houses,  the  finding  would  not  only 
be  a  proper  subject  of  consideration  by  them,  but  it  would  bo  their 
manifest  duty  to  act  upon  the  finding,  in  order  that  the  nation  might 
not  be  defrauded  in  its  choice  of  a  Chief  Magistrate. 

In  the  view  which  I  take  of  this  subject  there  would  be  no  great 
delay  in  the  counting  of  the  electoral  votes  if  Congress  wore  permitted 
to  look  behind  the  action  of  the  governor  or  of  the  canvassing  board  ; 
for  the  facts  to  be  brought  to  the  attention  of  the  two  Houses  would 
have  to  be  presented  iu  the  manner  indicated  before  they  could  be 
received  and  acted  upon,  unless  the  two  Houses  should  consent  that 
testimony  be  taken  at  the  time.  If  the  fact  alleged  could  be  readily 
established  without  seriously  delaying  the  count,  it  is  not  probable 
that  testimony  upon  the  subject  would  be  refused.  For  example,  tes 
timony  would  hardly  be  refused  as  to  the  ineligibility  of  an  elector, 
or  the  constitution  of  a  canvassing  board,  or  the  condition  of  a  State 
asunder  military  rule  at  the  time  of  the  election.  But  where  the 
fact  alleged  is  one  of  conflicting  evidence,  and  is  not  susceptible  of 
proof  within,  reasonable  limits,  then,  I  think,  the  fact  must  be  pre 
sented  properly  authenticated,  as  I  have  stated, 

Evidence  in  this  form,  impeaching  the  correctness  of  the  certificate 
of  the  governor  and  canvassing  board,  can  be  furnished  by  the  State 
or  by  either  House  of  Congress ;  by  the  State,  which  is  interested  that 
it  shall  not  be  defrauded  of  its  vote  in  the  election ;  and  by  either 
House  of  Congress,  which  is  interested  that  the  forty-two  millions  of 
people  composing  the  nation  shall  not  be  deprived  of  the  President  of 
their  choice. 

In  this  case  the  State  of  Florida  has  furnished  evidence  in  an  au 
thentic  form,  and  conclusive  in  its  character,  that  the  Hayes  electors 
were  never  appointed,  and  that  the  certificate  of  the  governor  and  of 
the  canvassing  board  in  that  respect  is  false ;  and  that  the  Tilden 
electors  were  duly  appointed.  It  has  furnished  the  declaration  of  its 


248 


ELECTORAL  COMMISSION. 


Legislature  in  a  statute  affirming  such  to  be  the  fact,  and  it  has  fur 
nished  a  judicial  determination  of  its  courts  to  the  same  effect. 

Soon  after  the  canvass  of  the  State  board  was  closed,  and  its  cer 
tificate  of  the  result  was  filed,  Mr.  Drew,  who  had  been  a  candidate 
for  the  office  of  governor  at  the  same  election,  against  Stearns,  the  in 
cumbent,  and  had  been  declared  defeated  by  the  action  of  the  can 
vassers  in  excluding  votes  for  him,  instituted  proceedings  by  man 
damus  in  the  supremo  court  of  the  State  to  compel  the  canvassers  to 
count  the  votes  given,  as  shown  by  the  returns.  In  his  petition  for 
the  writ  he  averred  that,  according  to  the  returns  received  at  the 
office  of  the  secretary  of  state,  and  on  file  there,  a  majority  of  the 
votes  for  the  office  of  governor  wore  cast  for  him ;  and  charged  against 
the  canvassers  the  same  disregard  of  the  law  of  the  State  which  is  al 
leged  against  them  in  the  count  for  the  electors.  Indeed,  their  action 
affected  equally  the  candidates  for  governor  and  for  electors.  The 
canvassers  appeared  to  the  writ,  and  proceedings  were  conducted  to 
a  judgment  on  the  merits.  The  supreme  court  adjudged  that  the  can 
vassers  had  no  authority  to  exclude  the  votes,  by  which  exclusion 
alone  Stearns  had  been  declared  elected,  and  directed  them  to  res  tore 
the  votes.  In  obedience  to  tuis  judgment  they  restored  the  excluded 
votes,  and  certified  a  majority  i'or  Drew,  who  went  into  office  and 
has  ever  since  been  the  accepted  governor  of  the  State.  It  was  the 
exclusion  of  the  same  votes  for  electors  that  enabled  the  canvassers 
to  declare  the  Hayes  electors  chosen.  In  deciding  this  case  the  court 
gave  a  construction  to  the  statute  under  which  the  canvassers  acted, 
and  delivered  the  opinion  from  which  I  have  already  quoted. 

As  soon  as  it  was  known  that  the  canvassers  had  certified  to  the 
election  of  the  Hayes  electors,  the  Tilden  electors  tiled  an  information 
in  the  nature  of  a  quo  warranto  against  them  in  one  of  the  circuit 
courts  of  the  State,  to  determine  the  valiaity  of  their  respective 
claims  to  the  office  of  electors.  This  proceeding  was  commenced  upon 
the  day  on  which  the  canvass  was  completed,  and  process  was  served 
on  the  Hayes  electors  before  they  had  cast  their  votes.  The  circuit 
court  had  jurisdiction  of  the  proceeding  by  the  constitution  of  the 
State,  the  eighth  section  of  which  provides  in  terms  that  the  circuit 
court  and  the  judges  thereof  shall  have  power  to  issue  writs  of  quo 
warranto.  In  the  information  the  Tilden  electors  alleged  that  they 
were  lawfully  elected  to  the  office  of  electors,  and  that  the  Hayes 
electors  were  not  thus  elected,  but  were  usurpers.  The  Hayes  elect 
ors  appeared  to  the  writ,  and,  first  upon  demurrer,  and  afterward 
upon  an  investigation  of  the  facts,  their  right  to  act  as  electors  was 
determined.  And  it  was  adjudged  that  the  Hayes  electors  were  never 
appointed,  and  were  never  entitled  to  assume  and  exercise  the  func 
tions  of  that  office,  and  were  usurpers ;  but  that  the  Tilden  electors 
were  duly  appointed  at  the  election  on  the  7th  of  November,  and 
were  entitled  on  the  Gth  of  December  to  receive  certificates  of  elec 
tion,  and  on  that  day  and  ever  since  to  exercise  the  powers  and  per 
form  the  duties  of  that  office.  It  matters  not  that  this  judgment  was 
not  reached  until  after  the  Hayes  electors  had  voted ;  it  was  an  ad 
judication  by  a  competent  court  upon  the  validity  of  their  title  as 
electors  at  the  time  they  assumed  to  cast  the  vote  of  the  State.  That 
judgment  remains  in  full  force  ;  the  appeal  from  it  neither  suspends 
its  operation  nor  affects  its  validity.  It  is  certainly  entitled  to  great, 
if  not  conclusive,  weight  upon  the  subject  before  us,  especially  when 
considered  in  connection  with  the  action  of  the  Legislature  of  the 
State.  That  action  seems  to  me  to  be  conclusive  of  the  case. 

After  the  supremo  court  in  the  Drew  proceeding  had  given  a  con 
struction  to  the  election  law,  and  decided  that  the  canvassers  had  dis 
regarded  its  plain  provisions,  exercised  judicial  functions  which  they 
never  possessed,  and  unlawfully  rejected  votes,  the  Legislature  took 
steps  to  have  their  count  corrected  with  respect  to  the  electors,  as  it 
had  been  with  respect  to  the  governor.  And  on  the  17th  of  January 
last  it  passed  "  an  act  to  provide  for  a  canvass  according  to  the  laws 
of  the  State  of  Florida,  as  interpreted  by  the  supreme  court,  of  the 
votes  for  electors  of  President  and  Vice-President  cast  at  the  election 
held  November  7, 1876."  This  act  required  that  the  secretary  of  state, 
attorney-general,  and  the  comptroller  of  public  accounts,  or  any  two 
of  them,  together  with  any  other  member  of  the  cabinet  who  might 
be  designated  by  them,  should  meet  forthwith  at  the  office  of  the  secre 
tary,  pursuant  to  a  notice  from  him,  and  form  a  board  of  State  can 
vassers,  and  proceed  to  canvass  the  returns  of  election  of  electors  of 
President  and  Vice-President  held  on  the  7th  of  November,  and  deter 
mine  and  declare  who  were  elected  and  appointed  electors  at  that 
election,  as  shown  by  the  returns  on  file.  The  act  directed  the  can 
vassers  to  follow  the  construction  o£  the  law  given  by  the  supreme 
court  defining  the  powers  and  duties  of  State  canvassers.  It  directed 
that  their  certificate  of  the  result  should  be  recorded  in  the  office  of 
the  secretary  of  state,  and  a  copy  be  published  in  one  or  more  news 
papers  printed  at  the  seat  of  government.  The  canvassers  accord 
ingly  met  and  made  the  canvass  directed,  and  certified  that  the  Til 
den  electors,  naming  them,  had  received  a  majority  of  the  votes  and 
were  duly  elected. 

Subsequent  to  this,  and  on  the  26th  of  January,  the  Legislature 
passed  another  act  in  relation  to  the  Tilden  electors.  That  act  re 
cited,  among  other  things,  that — 

"Whereas  the  board  of  State  canvassers  constituted  under  the  act  approved  Feb 
ruary  27,  1872,  did  interpret  the  laws  of  this  Stato  dolining  the  powers  and  duties 
of  the  said  board  in  such  manner  as  to  give  them  power  to  exclude  certain  regular 
returns,  and  did  in  fact  under  such  interpretation  exclude  certain  of  such  regular 
return,  which  said  interpretation  has  been  adjudged  by  the  supremo  court  to  bo 
erroneous  and  illegal ; 


And  -whereas  the  late  governor,  Marcellus  L.  Stearns,  by  reason  of  said  illegal 
action  and  erroneous  and  illegal  canvass  of  the  said  board  of  State  canvassers,  did 
erroneously  cause  to  be  made  and  certified  lists  of  the  names  of  electors  of  this 
State,  containing  the  names  of  said  Charles  II.  Pcarce,  Frederick  C.  Humphreys, 
"William  II.  Uolden,  and  Thomas  Long — 

The  Hayes  electors — 

and  did  deliver  such  lists  to  said  persons,  when  iu  fact  the  said  persons  had  not  re 
ceived  the  highest  number  of  votes,  ami,  on  a  canvass  conducted  according  to  the 
rules  prescribed  and  adjudged  us  legal  by  the  supremo  court,  were  not  appointed 
as  electors  or  entitled  to  receive  such  lists  from  the  governor,  but  Robert  Bullock, 
ItobertB.  Hilton,  Wilkinson  Call,  aud  James  E.  W.  Yougo— 

The  Tilden  electors — • 

were  duly  appointed  electors,  and  were  entitled  to  have  their  names  compose  the 
lists  made  and  certilied  by  the  governor,  and  to  have  such  lists  delivered  to  them  : 
Now,  therefore,  the  people  of  the  Stato  of  Florida,  represented  in  senate  and 
assembly,  do  enact,  &c. 

The  act  then  proceeded  to  declare  that  the  Tilden  electors,  naming 
them,  were  on  the  7th  of  November  duly  chosen  and  appointed  by  and 
on  behalf  of  the  State  of  Florida  in  such  manner  as  the  Legislature 
thereof  had  directed,  and  were  from  that  day  entitled  to  exercise  all 
the  powers  and  duties  of  the  office  of  electors  and  had  full  power 
and  authority  on  the  Gth  of  December,  1870,  to  vote  as  such  elect 
ors  for  President  and  Vice-President,  aud  to  certify  and  transmit 
their  votes  as  provided  by  law.  The  statute  then  ratified,  confirmed, 
and  declared  as  valid,  to  all  intents  and  purposes,  the  acts  of  such 
electors.  It  also  authorized  and  directed  the  governor  to  make  and 
certify  in  due  form  and  under  the  seal  of  the  State  three  lists  of 
the  names  of  the  electors,  and  to  transmit  the  same,  with  an  authentic 
copy  of  the  act,  to  the  President  of  the  Senate,  and  declared  that 
such  lists  and  certificate  should  be  as  valid  and  effectual  to  authenti 
cate  in  behalf  of  the  State  the  appointment  of  such  electors  by  the 
Stato  as  if  they  had  been  made  aud  delivered  on  or  before  the  Gth  of 
December,  Id?  G,  and  had  been  transmitted  immediately  thereafter,  and 
that  the  lists  and  certificates  containing  the  names  of  the  Hayes  elect 
ors  were  illegal  and  void.  The  act  further  authorized  and  directed 
the  governor  to  cause  three  other  lists  of  the  names  of  the  Tilden 
electors  to  be  made  and  certified  and  forthwith  delivered  to  them,  and 
required  those  electors  to  meet  at  the  capitol  of  the  Stato  and  to  make 
and  sign  three  additional  certificates  of  the  votes  given  by  them  on 
the  Gth  of  December,  to  each  of  which  should  be  annexed  one  of  the 
lists  of  the  electors  furnished  by  the  governor,  and  that  one  of  the 
certificates  should  be  transmitted  by  messenger,  and  one  by  mail,  to 
the  President  of  the  Senate,  and  the  third  delivered  to  the  judge  of 
the  district,  as  required  by  law. 

Pursuant  to  this  act  the  governor  of  the  State  made  and  certified 
three  lists  of  the  Tilden  electors  and  delivered  the  same  to  them,  and 
the  said  electors  assembled  and  certified  that  they  had  met  on  the 
Gth  day  of  December  at  the  capitol  and  given  their  votes  as  electors 
for  President  and  Vice-President  by  distinct  ballots,  the  votes  for 
President  being  for  Mr.  Tildeu,  aud  the  votes  for  Vice-President  be 
ing  for  Mr.  Heudricks,  and  signed  three  certificates  of  their  action, 
which  were  forwarded  as  required  by  law.  These  certificates  were 
accompanied  by  the  certified  lists  of  the  governor,  by  a  certified  copy 
of  the  two  acts  of  the  State,  and  by  a  certified  copy  of  the  returns 
on  file  iu  the  office  of  the  secretary  of  state,  with  a  tabulated  state 
ment  annexed  showing  the  result  of  the  votes.  The  third  certificate, 
which  is  before  us,  embraces  all  these  proceedings. 

Hero,  then,  we  have  the  highest  possible  evidence  of  the  action  of 
the  State  of  Florida.  The  two  sets  of  electors  both  conformed  to 
every  requirement  of  the  law  in  their  proceedings.  One  set,  the 
Hayes  electors,  have  the  certificate  of  Governor  Stearns  of  their  elec 
tion,  based  upon  a  certificate  of  the  canvassing  board,  which  in  its 
nature  is  mere  prima  facie  evidence ;  the  other  set,  the  Tildon  electors, 
have  an  adjudication  of  a  State  court  of  competent  jurisdiction,  that 
they  alone  were  the  legally  appointed  electors.  They  have  the  au 
thoritative  declaration  of  the  Legislature  of  the  State  that  they  alone 
were  entitled  to  act  as  electors,  and  vote  for  President  on  the  Gth  of 
December ;  and  they  have  a  certificate  of  Governor  Drew,  based  upon 
a  recauvass  of  the  votes,  that  they  were  duly  appointed.  And  ac 
companying  this  evidence  they  have  a  certified  copy  of  the  returns, 
showing  that  they  received  a  majority  of  the  votes  cast  at  the  elec 
tion. 

Under  these  circumstances  can  it  be  possible  that  there  is  any  seri 
ous  question  as  to  which  of  the  two  sets  of  electors  was  duly  appointed? 
As  the  Legislature  was  alone  authorized  to  determine  the  manner  in 
which  the  electors  should  bo  appointed,  it  could  furnish  in  its  own 
way  evidence  of  their  acts  as  agents  of  the  State,  whatever  may  be 
the  power  of  Congress  for  its  convenience  in  requiring  a  certificate 
of  the  governor.  Wore  this  transaction  one  that  involved  merely 
questions  of  property,  instead  of  a  matter  of  great  public  and  polit 
ical  interest,  I  do  not  think  there  is  a  lawyer  on  this  Commission  who 
could  hesitate  a  moment  as  to  the  conclusive  character  of  the  evidence 
in  favor  of  the  Tilden  electors. 

In  addition  to  this  action  of  the  State,  Congress  has  moved  in  the 
matter,  and  very  properly  so  ;  for  the  entire  people  are  interested  in 
the  election  of  their  Chief  Magistrate.  No  other  officer  can  exercise 
so  great  an  influence  for  good  or  for  evil  upon  the  whole  country. 
He  is  not  only  the  Commander-iu-Chief  of  our  Army  and  Navy,  but 
he  is  the  executor;  of  our  laws,  the  organ  of  intercourse  with  foreign 
nations,  the  bestowor  of  offices  of  honor  and  trust,  and  is  charged 
with  the  duty  of  maintaining  and  defending  the  Constitution.  Of 


ELECTORAL  COMMISSION. 


249 


all  the  obligations  resting  upon  the  representatives  of  the  people 
none  is  greater  than  that  of  seeing  that  no  one  takes  that  high  office 
with  a  defective  and  tainted  title.  Acting  upon  this  obligation  the 
House  of  Eepresentatives  early  in  the  session,  when  it  was  rumored 
that  irregular  and  fraudulent  proceedings  had  characterized  the  elec 
tion  in  some  of  the  States,  and  in  Florida  among  others,  appointed 
committees  of  investigation  to  ascertain  the  facts  and  report  who  in 
truth  had  been  appointed  electors  by  those  States.  One  of  those  com 
mittees  proceeded  to  Florida  and  took  there  a  large  amount  of  testi 
mony  on  the  subject,  which  it  has  returned  to  the  House  with  its  con 
clusions  as  to  the  result.  This  committee  has  reported  that  the  Til- 
den  electors  were  duly  appointed,  concurring  in  that  respect  with 
the  action  of  the  State  tribunals  and  the  State  Legislature.  Their 
report  and  its  conclusions,  if  adopted  by  the  House,  would  undoubt 
edly  have  a  controlling  influence  upon  its  action  in  counting  the  vote 
of  the  State,  if  this  Commission  had  not  been  created,  and  for  that 
reason  they  should  be  received,  and  if  not  accepted  as  linal,  at  least 
bo  considered  by  us.* 

We  are  invested  with  all  the  powers  of  the  two  Houses  of  Congress 
toascertain  and  decide  what  persons  were  "duly  appointed"  elect 
ors  of  Florida.  By  the  law  which  has  governed  legislative  bodies  from 
their  earliest  existence,  matters  upon  which  they  may  be  called  to 
act  can  be  investigated  by  committees  appointed  for  that  purpose. 
And  either  House  may  receive  the  testimony  taken  by  its  committee 
and  proceed  upon  that,  or  accept  the  liuding  of  its  committee  as  its 
judgment  and  act  upon  that  as  conclusive.  And  not  until  now  has  it 
ever  been  questioned  that  the  power  of  each  House  to  take  testimony 
in  that  way  was  not  as  extensive  as  the  subjects  upon  which  it  could  act. 
One  of  the  gentlemen  on  this  Commission  [Mr.  EDMUNDS]  introduced 
into  the  Senate  during  the  present  session  resolutions  for  the  appoint 
ment  of  committees  to  inquire  into  the  matters  which  we  are  now 
considering,  and  Senators  MORTON  and  FRELINGHUYSEN  voted  for 
them.  One  of  the  resolutions  authorized  the  committees  to  inquire, 
among  other  things,  "  whether  the  appointment  of  electors,  or  those 
claiming  to  be  such,  in  any  of  the  States,  has  been  made  by  force, 
fraud,  or  other  means  otherwise  than  in  conformity  with  the  Consti 
tution  and  laws  of  the  United  States  and  the  laws  of  the  respective 
States;"  and  in  compliance  with  the  resolutions  the  committees  have 
passed  weeks  in  their  investigations.  It  certainly  provokes  surprise 
and  comment  to  hear  these  gentlemen  now  deny  that  either  House  of 
XJongress  has  any  power  to  go  behind  the  certificate  of  the  governor, 
and  that  of  the  canvassing  board  of  the  State,  and  to  inquire  into  the 
matters  for  which  those  committees  were  appointed. 

It  is  said  that  the  Hayes  electors  were  de  facto  officers,  and,  there 
fore,  that  their  action  is  to  be  deemed  valid  until  they  were  adjudged 
usurpers.  But  they  were  no  more  de  facto  officers  than  the  Tildcn 
electors.  Both  sets  of  electors  acted  at  the  same  time  and  in  the  same 
building.  The  doctrine  that  the  validity  of  the  acts  of  de  facto  officers 
cannot  be  collaterally  assailed,  and  that  they  are  binding  until  the 
officers  are  ousted,  is  usually  applied  where  there  is  a  continuing 
office,  and  then  only  on  grounds  of  public  policy.  Private  individuals 
are  not  called  upon,  and  in  most  cases  are  not  permitted,  to  inquire 
into  the  title  of  persons  clothed  with  the  insignia  of  public  office  and 
in  apparent  possession  of  its  powers  and  functions.  They  are  re 
quired,  for  the  due  order  and  peace  of  society,  to  respect  the  acts  of 
such  officers,  and  yield  obedience  to  their  authority,  until  in  some 
regular  mode  provided  by  law  their  title  is  determined  and  they  are 
ousted.  As  a  consequence  of  the  respect  and  obedience  thus  given, 
private  individuals  can  claim,  in  all  that  concerns  themselves  and  the 
public,  for  the  acts  of  such  officers,  the  same  efficacy  as  though  the 
officers  were  rightfully  clothed  with  authority.  The  doctrine  may  be 
applied  even  to  to  a  single  act  of  an  officer,  where  the  office  is  a  con 
tinuing  one,  but  it  may  be  doubted  whether  it  is  applicable  to  the 
case  of  a  person  simply  charged  with  the  performance  of  a  single  act 
In  such  performance  it  would  seem  that  the  person  could  properly  be 
regarded  only  as  the  official  agent  of  the  State,  and  if,  therefore,  he 
was  without  authority,  hia  acts  would  be  void.  If  the  doctrine  is 
ever  applicable  to  such  a  case,  it  cannot  be  applied,  where  the  act 
performed  has  not  accomplished  its  purpose  before  the  want  of  right 
in  the  officer  to  do  the  act  in  question  is  determined.  None  of  the 
reasons  upon  which  the  doctrine  rests,  of  policy,  convenience,  or  pro 
tection  to  private  parties,  has  any  application  to  a  case  of  this  kind. 
It  does  not  seem,  therefore,  to  me  that  there  is  any  force  in  the  posi 
tion. 

Nor  is  there  anything  in  the  language  used  in  the  petition  in  the 


*The  committee  presented  to  the  House  their  report  on  the  31st  of  January,  in 
•which  they  declared  that  the  evidence  was  perfectly  conclusive  that  the  State  of 
Florida  had  cast  her  vote  for  the  Tilden  electors,  and  they  closed  with  recommend 
ing  the  passage  of  the  following  resolution : 

"  liesolved,  That  at  the  election  held  on  November  7th,  A.  D.  1876,  in  the  State  of 
Florida,  Wilkinson  Call,  J.  E.  Yonge,  K.  B.  Hilton,  add  Robert  Bullock  were  fairly 
and  duly  chosen  as  presidential  electors,  and  that  this  is  shown  by  the  face  of  the 
returns  and  fully  substantiated  by  the  evidence  of  the  actual  votes  cast ;  and  that 
the  said  electors  having,  on  the  first  Wednesday  of  December,  A.  D.  1876,  cast 
their  votes  for  Samuel  J.  Tilden  for  President  and  for  Thomas  A.  Hendricks  for 
Vice-President,  they  are  the  legal  votes  of  the  State  of  Florida  and  must  be  counted 

This  resolution  was  subsequently  adopted  by  the  House  by  a  vote  of  142  yeas  to 

~The  subcommittee  on  Privileges  and  Elections  of  the  Senate  also  made  an  inves 
tigation  of  the  Florida  case,  and  a  report,  which  was  adverse  in  its  conclusions  to 
those  of  the  House  committee,  but  the  report  was  never  adopted  by  the  Senate. 


quo  warranto  case  which  can  affect  the  status  of  the  Tilden  electors, 
as  is  supposed  by  one  of  the  counsel  on  the  other  side,  [Mr.  Matthews.] 
Of  the  two  sets  of  electors  each  claimed  to  be  lawfully  entitled  to 
act,  and  for  the  purpose  of  having  a  judicial  determination  of  the 
question  in  controversy  one  set  brought  the  writ.  Any  allegations 
they  may  have  made  cannot  alter  their  right  or  title ;  that  depended 
upon  the  vote  of  the  people,  and  no  consent  or  language  of  theirs 
could  change  their  position  to  the  State  or  to  the  United  States. 

Mr.  President,  I  desire  that  this  Commission  should  succeed  and 
give  by  its  judgment  peace  to  the  country.  But  such  a  result  can 
only  be  attained  by  disposing  of  the  questions  submitted  to  us  on  their 
merits.  It  cannot  be  attained  by  a  resort  to  technical  subtleties  and 
ingenious  devices  to  avoid  looking  at  the  evidence.  It  is  our  duty  to 
ascertain  if  possible  the  truth,  and  decide  who  were  in  fact  duly  ap 
pointed  electors  in  Florida,  not  merely  who  had  received  certificates 
of  such  appointment.  That  State  has  spoken  to  us  through  her 
courts,  through  her  Legislature,  and  through  her  executive,  and  has 
told  us  in  no  ambiguous  terms  what  was  her  will  and  whom  she  had 
appointed  to  express  it.  If  we  shut  our  ears  to  her  utterances,  and 
closing  our  eyes  to  the  evidence  decide  this  case  upon  the  mere  in 
spection  of  the  certificates  of  the  governor  and  canvassing  board,  wo 
shall  abdicate  our  powers,  defeat  the  demands  of  justice,  and  disap 
point  the  just  expectations  of  the  people.  The  country  may  submit 
to  the  result,  but  it  will  never  cease  to  regard  our  action  as  unjust 
in  itself,  and  as  calculated  to  sap  the  foundations  of  public  morality. 


After  the  Electoral  Commission  had  decided  to  exclude  all  testi 
mony  respecting  the  vote  of  Florida,  except  that  furnished  by  the  pa 
pers  opened  by  the  President  of  the  Senate,  the  following  memorial 
from  the  Legislature  of  the  State  was  presented  to  the  Houses  of 
Congress : 

Concurrent  resolution  embodying  a  memorial  to  Congress  relative  to  ttie  counting 
of  the  electoral  vote. 

Resolved  by  the  assembly,  (the  senate  concurrinfj,)  That  Hon.  Charles  W.Jones  be 
requested  to  present  the  following  memorial  to  the  Senate  of  the  United  States, 
and  that  Hoii.  Jes.se  J.  Fiuley  be  requested  to  present  the  same  to  the  House  of 
Representatives  of  the  United  States. 

The  people  of  the  Sta*o  of  Florida,  represented  in  the  senate  and  assembly,  memo 
rializing  the  honorable  Senate  and  House  of  Representatives  of  tho  United  State*, 
respectfully  represent  that  tho  tiual  counting  of  the  four  electoral  votes  of  Flm-id.i 
for  Rutherford  B.  Hayes  and  William  A.  Wheeler,  when  the  said  votes  had  been 
actually  and  honestly  cast  for  Samuel  J.  Tilden  and  Thomas  A..  Hendricks,  is  ;v 
grievance  of  such  magnitude  to  your  memorialists  that  in  their  view  this  appeal  is 
not  only  fully  warranted,  but  'cogently  demanded  by  the  voice  of  duty.  Your 
memorialists  hold  themselves  to  be  justified  in  treating  a.s  established  and  unques 
tionable  the  fact  that  the  said  electoral  votes  were  diverted  from  their  true  course 
and  employed  to  defeat  the  end  which  they  had  been  set  forth  to  accomplish,  be 
cause  the  knowledge  of  this  fact  has  been  communicated  to  your  honorable  bodies 
by  solemn  acts  of  all  departments  of  tho  government  of  Florida.  While  it  is  true 
that  the  executive  branch  of  said  government  had  previously  averred  the  contrary, 
it  has  been  made  known  to  your  honorable  bodies,  and  is  rapidly  becoming  known 
throughout  tho  civilized  world,  that  according  to  the  highest  judicial  authority  of 
the  State  that  averment  is  t'al.so. 

Your  memorialists  may  bo  forced  to  admit  that  there  is  no  remedy  for  the  spe 
cific  wrong  of  which  they  herein  complain,  but  they  implore  the  early  and  earnest 
attention  of  your  honorable  bodies  to  tho  vices  or  detects  in  tho  Constitution  or 
laws  of  tho  United  States  by  reason  of  which  such  a  wrong  became  possible.  If 
it  is  true  that  under  tho  Federal  Constitution  an  exigency  may  arise  in  which  ono 
fraudulent  act  performed,  or  ono  mistake  committed  by  a  majority  of  a  canvassing 
board,  must  necessarily  defeat  the  will  of  tho  American  people  and  determine  tho 
occupancy  of  the  highest  position  open  to  human  ambition,  your  memorialists  fear 
that  tho  great  instrument  which  they  have  been  accustomed  to  regard  as  the  unap 
proachable  master -piece  of  statesmanship  will  become  an  object  of  derision  and 
scorn. 

Your  memorialists  venture  to  express  the  hope  that  the  wisdom  which  charac 
terizes  your  honorable  bodies  will  be  speedily  applied  to  the  devising  of  somo  ex 
pedient  whereby  it  shall  be  made  certain  that  the  nation  will  never  again  prove 
utterly  impotent  to  protect  itself  against  the  illegal  action  of  a  board  Of  canvassers. 
.And  your  memorialists  will  ever  pray,  &c. 

Adopted  by  the  assembly,  February  12,  1877. 

Adopted  by  tho  senate,  February  13,  1877. 
STATE  OP  FLORIDA, 

Office  of  Secretary  of  State,  ss : 

I,  William  D.  Bloxham,  secretary  of  state,  do  hereby  certify  that  the  foregoing 
is  a  correct  transcript  of  the  original  now  on  file  in  this  office. 

Given  under  my  hand  and  the  great  seal  of  the  State  of  Florida,  at  Tallahassee, 
tho  capital,  this  20th  day  of  February,  A.  D.  1877. 

[SEAL.]  W.  D.  BLOXHAM, 

Secretary  of  State. 


OREGON. 

The  Commission  having  under  consideration  the  electoral  vote  of  Oregon — 

Mr.  Justice  FIELD  said : 

Mr.  PRESIDENT:  I  have  but  a  few  words  to  say  in  this  case,  and 
they  will  be  said,  not  in  the  expectation  of  affecting  tho  judgment  of 
any  one  of  the  Commission,  but  in  order  to  explain  the  reasons  which 
will  govern  my  action. 

It  appears  that  Odell,  Watts,  and  Cartwright  received  at  the  elec 
tion  in  Oregon,  in  November  last,  a  higher  number  of  votes  for  elect 
ors  of  President  and  Vice-President  than  the  candidates  against  them. 
Odell  and  Cartwright  were  accordingly  elected  ,  of  that  there  is  no 
question.  Watts  would  also  have  been  elected  had  he  been  at  the 
time  eligible  to  the  office.  He  was  then  and  for  somo  time  after 
wards  a  postmaster  at  LaFayetto  in  the  State.  The  office  he  held  was 
ono  of  trust  and  profit  under  tho  United  States ;  it  imposed  trusts, 
and  was  one  to  which  a  pecuniary  compensation  was  attached.  Ho 


250 


ELECTORAL  COMMISSION. 


was,  therefore,  ineligible  to  the  office  of  an  elector ;  ho  was  at  the 
time  incapable  of  beiug  appointed  to  that  office.  Such  is  the  lan 
guage  of  the  Constitution,  which  declares  that  "No  Senator  or  Repre 
sentative,  or  person  holding  an  office  of  trust  or  profit  under  the 
United  States,  shall  bo  appointed  an  elector."  The  prohibition  here 
made  is  unqualified  and  absolute.  All  the  power  of  appointment 
possessed  by  the  State  comes  from  the  Constitution.  The  office  of 
elector  is  created  by  that  instrument.  Her  power  of  selection  is,  there 
fore,  necessarily  limited  by  its  terms;  and  from  her  choice  the  class 
designated  is  excluded.  The  object  of  the  exclusion  was  to  prevent 
the  use  of  the  patronage  of  the  Government  to  prolong  the  official  life 
of  those  in  power. 

The  clause  in  question  is  one  that  opcratesby  its  own  force.  Like  the 
prohibition  against  passing  an  ex  post  facto  law,  or  a  bill  of  attainder, 
or  a  law  impairing  the  obligation  of  contracts,  it  executes  itself ;  it 
requires  no  legislation  to  carry  it  into  effect.  As  applied  to  Watts,  it 
must  be  read  as  if  his  name  were  inserted  in  the  text,  and  was  as  fol 
lows  :  "  The  State  of  Oregon  shall  appont,  in  such  manner  as  the  Legis 
lature  thereof  may  direct,  a  number  of  electors  equal  to  the  whole 
number  of  Senators  and  Representatives  to  which  the  State  may  be 
entitled  in  the  Congress ;  but  Watts  shall  not  be  appointed  one  of 
them."  The  power  to  appoint  him  not  existing  in  the  State,  the  votes 
cast  for  him  availed  nothing;  he  was  incapable  of  receiving  them. 
I  lo  was  not,  therefore,  appointed  the  third  elector. 

The  provision  of  the  Constitution  excluding  from  the  choice  of  the 
State  as  electors  certain  classes  of  officers  is  very  different  from  those 
provisions  which  create  a  mere  personal  disqualification  to  hold  par 
ticular  offices.  Thus  the  clause  declaring  that  "No  person  shall  le  a 
Representative  who  shall  not  have  attained  to  the  age  of  twenty-five 
years,"  and  the  clause  that  "  No  person  shall  be  a  Senator  who  shall  not 
have  attained  to  the  age  of  thirty  years,"  do  not  forbid  an  election  of 
persons  thus  disqualified;  they  only  prohibit  them  from  holding  the 
office  so  long  as  the  disqualification  exists.  They  can  take  the  office 
whenever  that  ceases.  But  with  respect  to  electors  the  case  is  differ 
ent  ;  there  is  an  incapacity  on  the  part  of  the  State  to  appoint  as  elect 
ors  certain  classes  of  officers.  This  distinction  between  ineligibility 
to  an  office  and  disqualification  to  hold  the  office  is  well  marked. 
The  one  has  reference  to  the  time  of  election  or  appointment;  the 
other  to  the  time  of  taking  possession  of  the  office.  The  ineligibil 
ity  existing  at  the  date  of  the  election  is  incurable  afterwards  ;  the 
disqualification  to  hold  may  be  removed  at  any  time  before  induc 
tion  into  office.  If,  therefore,  at  the  time  of  the  election  persons  are 
within  the  classes  designated,  their  appointment  is  impossible.  The 
Constitution  prohibits  it,  and  unless  the  prohibition  is  to  be  frittered 
away  whenever  conflicting  with  the  wishes  of  political  partisans, 
it  should  be  enforced  equally  with  the  provision  fixing  the  number 
of  electors.  One  clause  of  the  same  section  cannot  be  disregarded 
any  more  than  the  other,  and  surely  the  appointment  of  a  greater 
number  of  electors  than  the  State  was  entitled  to  have  would  be  a 
vain  proceeding. 

The  iueligibility  of  Watts  was  a  fact  known  to  the  governor.  He 
had  held  the  office  of  postmaster  for  years,  and  was  in  its  possession 
and  exercise  at  the  time  of  the  election.  This  was  a  fact  of  public 
notoriety,  and  was  not  dented  by  any  one.  It  was  asserted  by  par- 
tics  who  protested  against  the  issue  of  a  certificate  of  election  to  him, 
and  it  was  abundantly  proved.  Besides  this,  the  rule  of  law  is  that 
whenever  the  ineligibility  of  a  candidate  arises  from  his  holding  a 
public  office  within  the  State,  the  people  are  chargeable  with  notice 
of  the  fact.  The  governor  is,  of  course,  bound  by  the  Constitution, 
and  whenever  the  performance  of  a  duty  devolved  upon  him  is  affected 
by  the  existence  of  public  offices  under  the  United  States,  ho  may 
take  notice  officially  of  such  offices,  and  ascertain  who  are  their  in 
cumbents.  This  is  doctrine  which  1  had  not  supposed  open  to  ques 
tion.  But  I  find  that  I  am  mistaken  ;  and  I  am  told  by  some  gentle 
men  on  this  Commission,  that  it  was  not  competent  for  the  governor 
to  consider  the  question  of  the  ineligibility  of  the  candidate,  though 
made  known  to  him  in  every  possible  way;  and  that  its  determina 
tion  involved  the  exercise  of  judicial  functions,  with  which  ho  was 
not  invested.  The  general  position  advanced  by  them  is,  that  the 
duty  of  the  governor,  as  a  commissioning  officer,  is  to  issue  his  cer 
tificate  of  election  to  any  one  who  may  obtain,  according  to  the  de 
termination  of  the  canvassers,  the  highest  number  of  votes,  however 
ineligible  the  person  and  however  imperative  the  prohibition  may  be 
against  his  taking  the  office. 

To  test  this  doctrine  I  put  this  question  to  these  gentlemen  :  Sup 
posing  the  law  declared  that  only  white  persons  should  be  eligible 
to  an  office,  and  the  highest  number  of  votes,  according  to  the  can 
vassers,  should  bo  cast  for  a  colored  man,  would  the  governor  be  bound 
to  issue  a  commission  to  him  ?  The  gentlemen  answered  that  he  would 
be  thus  bound  ;  that  the  governor  could  not  in  such  case  decide  the 
question  of  the  colored  man's  ineligibility.  Mr.  Senator  THUJIMAN 
put  this  further  question  :  Supposing  the  law  of  the  State  declared 
that  only  males  should  be  elected  to  an  office,  and  the  highest  num 
ber  of  votes  were  cast,  according  to  the  report  of  the  canvassers,  for 
a  female,  would  the  governor  be  bound  to  issue  a  commission  to  her? 
The  gentlemen  replied,  as  before,  that  ho  would  be  thus  bound;  that 
the  governor  could  not  determine  the  ineligibility  of  the  party  on  the 
ground  of  her  sex.  There  is  something  refreshing  in  these  'days  of 
sham  and  pretence  to  find  men  who  will  thus  accept  the  logic  of  their 
to  whatever  result  they  may  lead. 


A  different  doctrine,  I  think,  prevails  in  this  country.  Every  de 
partment  of  Government,  when  called  upon  to  apply  a  provision  of 
the  Constitution,  must,  in  the  first  instance,  pass  upon  its  construc 
tion  and  determine  the  extent  of  its  obligation.  A  just  man  em 
powered  to  issue  a  certificate  of  election  will,  it  is  true,  hesitate  to 
decide  on  the  question  of  the  ineligibility  of  a  candidate,  where  there 
is  any  serious  doubt  on  the  subject,  and  for  that  reason  to  refuse  his 
certificate.  He  will  in  such  a  case  leave  the  matter  to  the  determi 
nation  of  the  judicial  tribunals.  But  where  there  is  no  doubt  on  the 
subject,  and  the  language  of  the  Constitution  forbidding  the  appoint 
ment  is  clear  and  imperative,  he  cannot,  without  violating  his  oath  of 
office,  disregard  its  mandate. 

The  law  is  laid  down  in  numerous  adjudications  in  conformity  with 
these  views.  In  the  case  of  the  State  of  Missouri  on  the  relation  of 
Bartley  against  the  governor,  which  is  cited  by  counsel,  (39  Missouri, 
399,)  the  doctrine  for  which  I  contend  is  stated  with  great  clearness 
and  precision.  There  a  mandamus  was  prayed  against  the  governor 
to  compel  him  to  issue  a  commission  to  the  relator  as  one  of  the  jus 
tices  of  the  county  court.  The  supreme  court  refused  the  writ  on  the 
ground  that  the  issuing  of  a  commission  was  the  exercise  of  political 
power,  and  not  a  mere  ministerial  act.  After  reciting  that  by  the 
constitution  the  duty  devolved  upon  the  governor  to  commission  all 
officers  not  otherwise  provided  by  law,  the  court  said: 

The  governor  is  bound  to  see  that  the  laws  are  faithfully  executed,  and  he  has 
taken  an  oath  to  support  the  constitution.  In  the  correct  and  legitimate  perform 
ance  of  his  fluty  ho  must  inevitably  have  a  discretion  in  regard  to  granting  coin- 
missions  ;  for  should  a  person  be  elected  or  appointed  who  was  constitutionally  in 
eligible  to  hold  any  oilicu  of  profit  or  trust,  would  the  executive  be  bound  to  com 
mission  him  when  his  ineligibility  was  clearly  and  positively  proven  ?  If  ho  is  de 
nied  the  oxorciso  of  any  discretion  in  such  case,  he  is  made  the  violator  of  the  con 
stitution,  not  its  guardian.  Of  what  avail  then  is  his  oath  of  office  f  Or,  if  he  bus 
positive  and  satisfactory  evidence  that  no  election  has  been  held  in  a  county,  shall 
he  be  required  to  violate  the  law  and  issue  a  commission  to  a  person  not  elected, 
because  a  clerk  has  certified  to  the  election  9  In  granting  a  commission  the  gov 
ernor  may  go  behind  the  certificate  to  determine  whether  an  applicantis  entitled  to 
receive  a  commission  or  not,  whore  the  objection  to  the  right  of  the  applicant  to 
receive  it  rests  upon  the  ground  that  •*  constitutional  prohibition  is  interposed. 

In  Gulick  against  New,  also  cited  by  counsel,  (14  Indiana,  93)  the 
supreme  court  of  Indiana  used  language  substantially  to  the  same 
effect,  holding  that  the  governor,  who  was  authorized  to  commission 
officers,  might  determine  even  against  the  decision  of  a  board  of  can 
vassers  whether  an  applicant  was  entitled  to  receive  a  commission  or 
not,  where  the  objection  to  his  right  to  receive  it  rested  upon  a  con 
stitutional  prohibition. 

Other  adjudications  might  be  cited,  but  I  believe  these  express  the 
law  as  recognized  generally -(hroughout  the  country.*  The  question 
then  arises,  Watts  being  ineligible,  whether  the  person  receiving  the 
next  highest  number  of  votes,  he  being  eligible,  was  elected.  Gov 
ernor  Grovor  held  that  such  person  was  elected  and  issued  a  certificate 
of  election  to  him.  In  his  action  in  this  respect  he  followed  the  rule 
which  obtains  in  England,  where,  if  the  voters  having  knowledge  of 
the  iueligibility  of  a  candidate  persist  in  voting  for  him,  their  votes 
are  considered  as  thrown  away,  and  the  eligible  candidate  receiving 
the  next  highest  number  of  votes  is  declared  elected.  There  are  nu 
merous  decisions  by  courts  of  the  highest  character  in  this  country 
to  the  same  effect.  They  have  been  cited  to  us  by  counsel  in  their 
elaborate  arguments,  and  in  view  of  thorn  an  honorable  and  conscien 
tious  man  might  well  have  acted  as  the  governor  did.  But  I  do  not 
yield  my  assent  to  them ;  they  are  not  in  harmony  with  the  spirit  of 
our  system  of  elections.  The  theory  of  our  institutions  is  that  the 
majority  must  govern  ;  and  their  will  can  only  be  carried  out  by  giv 
ing  the  offices  to  those  for  whom  they  have  voted.  In  accordance 
with  this  view,  the  weight  of  judicial  opinion  in  this  country  is,  that 
votes  gi  veu  for  an  ineligible  candidate  are  merely  ineffectual  to  elect 
him,  and  that  they  are  not  to  be  thrown  out  as  blanks,  and  the  elec 
tion  given  to  the  eligible  candidate  having  the  next  highest  number 
of  votes.  It  is  fairer  and  more  just  to  thus  limit  the  operation  of 
votes  for  an  ineligible  candidate  than  to  give  them,  as  said  in  the  Cal 
ifornia  case, "  the  effect  of  disappointing  the  popular  will  and  electing 
to  office  a  man  whose  pretensions  the  people  had  designed  to  reject." 
(Saunders  vs.  Haynes,  13  California,  154.) 


*  In  the  debate  which  took  place  in  the  Senate  on  the  16th  of  December,  187f>,  on 
the  electoral  vote  of  Oregon,  Senator  TUURMAN  replied  to  some  remarks  of_Senator 
MOUTON  upon  the  action  of  Governor  Grover,  as  follows: 

"  The  Senator  from  Indiana  says  that  the  question  whether  Watts  was  eligible  or 
not  was  a  judicial  question,  and  that  the  solo  duty  of  the  governor  was  a  ministerial 
fluty,  that  he  had  no  judicial  function  whatever,  that  it  was  therefore  bis  duty 
simply  to  certify  to  the  person  who  received  the  highest  number  of  votes.  He  states 
that  in  the  most  absolute  manner.  If  his  statement  be  correct,  then,  if,  instead  of 
voting  for  Watts,  the  voters  who  cast  their  votes  for  him  bad  voted  for  Queen  Vic 
toria,  it  would  have  been  the  duty  of  the  governor  to  iswue  a  certitiente  of  election 
to  her  Majesty  the  Queen  that  she  was  chosen  elector  of  President  and  Vice-Presi- 
tlent  for  the  State  of  Oregon.  *  *  *  It  is  very  true  in  Oregon,  as  in  every  State 
in  the  Union  and  in  the  .Federal  Government,  that  there  is  a  department  of  iroveni- 


officer  t  We  could  not  get  along  with  the  government  one  day  on  such  an  idea  as 
that.  The  judicial  power  which  the  governor  of  Oregon  cannot  exercise,  which 
the  Legislature  cannot  exercise,  the  judicial  power  thatCongress  cannot  exercise, 
that  the  President  cannot  exercise,  is  the  power  of  deciding  litigated  cases  that 
arise  in  jurisprudence,  and  is  a  wholly  different  thing  from  the  exorcise  of  that  quasi- 
judicial'  power  which  executive  officers  are  called  upon  every  day  to  exercise  and 
which  they  must  exercise." 


ELECTORAL  COMMISSION. 


251 


I  cannot,  therefore,  vote  that  Crouin,  the  candidate  having  the 
next  highest  number  of  votes  to  Watts,  "  was  duly  appointed  "  an 
elector  of  the  State  at  the  election  in  November.  As  there  was,  in 
my  opinion,  a  failure  to  appoint  a  third  elector,  the  question  arises 
whether  a  vacancy  was  thus  produced  which  the  other  electors  could 
fill.  In  a  general  sense,  an  office  may  be  said  to  be  vacant  when  it  is 
not  filled,  though  this  condition  arise  from  non-election,  or  the  death, 
resignation,  or  removal  of  an  incumbent.  Cases  have  been  cited  be 
fore  us  where  the  term  vacancy  is  used  in  both  these  senses.  But 
the  question  for  us  to  decide  is  whether  there  was  a  vacancy  within 
the  meaning  of  the  legislation  of  Congress.  That  legislation  distin 
guishes  between  cases  of  non-election  and  cases  of  vacancy,  evi 
dently  treating  the  latter  as  only  occurring  after  the  office  has  been 
once  filled.  I  refer  to  sections  133  and  134  of  the  Revised  Statutes, 
which  are  as  follows  : 

SEC.  133.  Each  State  may  by  law  provide  for  the  filling  of  any  vacancies  which 
may  occur  in  its  college  of  electors  when  such  college  meets  to  give  its  electoral 
vote. 

SEC.  134.  Whenever  any  State  has  held  an  election  for  the  purpose  of  choosing 
electors,  and  has  failed  to  make  a  choice  on  the  day  prescribed  by  law,  the  electors 
may  be  appointed  on  a  subsequent  day  in  such  a  manner  as  the  Legislature  of  such 
State  may  direct.* 

Under  this  legislation  the  State  of  Oregon  has  provided  for  filling 
vacancies  in  its  electoral  college,  treating,  as  does  Congress,  a  va 
cancy  as  arising  only  after  the  office  has  once  been  filled.  Its  code 
of  general  laws  declares  when  vacancies  in  any  office  shall  be  deemed 
to  have  occurred,  as  follows  t 

Every  office  shall  become  vacant  on  the  occurring  of  either  of  the  following 
events  before  the  expiration  of  the  term  of  such  office  : 

1.  The  death  of  the  incumbent. 

2.  His  resignation. 

3.  His  removal. 

4.  His  ceasing  to  be  an  inhabitant  of  the  district,  county,  town,  or  village  for 
which  he  shall  have  been  elected  or  appointed,  or  within  which  the  duties  of  his 
office  are  required  to  be  discharged. 

5.  His  conviction  of  any  infamous  crime,  or  of  any  offense  involving  a  violation 
of  his  oath. 

6.  His  refusal  or  neglect  to  take  his  oath  of  office,  or  to  give  or  renew  his  official 
bonfl,  or  to  deposit  such  oath  or  bond  within  the  time  prescribed  by  law. 

7.  The  decision  of  a  competent  tribunal  declaring  void  his  election  or  appoint 
ment. — General  Laws  of  Oregon,  page  576,  section  48. 

On  the  subject  of  vacancies  in  the  electoral  college,  the  same  code 
of  general  laws  provides  that  when  the  electors  convene — 

If  there  shall  be  any  vacancy  in  the  office  of  an  elector,  occasioned  by  death,  re 
fusal  to  act,  neglect  to  attend,  or  otherwise,  the  electors  present  shall  immediately 
proceed  to  fill,  by  viva  voce  and  plurality  of  votes,  such  vacancy  in  the  electoral 
college. — General  Laws  of  Oregon,  page  578,  section  59. 

It  seems  evident  from  these  provisions  that  there  could  be  no  va 
cancy  in  the  office  of  elector  unless  the  office  had  once  been  filled. 
The  events,  upon  the  occurrence  of  which  the  statute  declares  that  a 
vacancy  shall  occur,  in  any  office,  all  imply  the  existence  of  a  pre 
vious  incumbent. 

The  word  "otherwise,"  used  with  respect  to  a  vacancy  in  the  elect 
oral  college,  does  not  enlarge  the  scope  of  that  term.  The  code  hav 
ing  enumerated  under  one  title  the  events  upon  which  a  vacancy 
may  arise,  including  death,  resignation,  and  other  causes,  proceeds 
to  declare,  under  another  title  of  tbe  same  chapter,  that  when  a  va 
cancy  occurs  in  the  office  of  elector  by  death,  refusal  to  act,  or  other 
wise,  meaning  thereby  any  other  cause  which  would  remove  an  incum 
bent,  the  electors  present  may  fill  the  vacancy.  As  here  there  never 
had  been  an  incumbent,  there  could  be  no  vacancy  in  the  sense  of 
the  statute  by  death  or  otherwise. 

The  two  electors,  Odell  and  Cartwright,  undertook  to  appoint 
Watts  as  the  third  elector  upon  the  assumption  that  he  had  resigned 
the  office,  and  that  a  vacancy  was  thereby  created.  But  inasmuch 
as  he  had  never  been  elected,  he  had  nothing  to  resign.  The  case 
was  not  one  of  a  vacancy,  but  of  a  failure  to  elect ;  and  the  Legisla 
ture  of  the  State  has  made  no  provision  for  a  subsequent  election  in 
case  of  such  failure,  as  it  might  have  done  under  the  legislation  of 
Congress. 

For  these  reasons,  Mr.  President,  I  shall  vote  in  this  case  as  follows : 

First.  That,  as  Watts  held  on  the  day  of  election  an  office  of  trust 
and  profit  under  the  United  States,  he  was  then  ineligible  as  an  elector, 
within  the  express  terms  of  the  Constitution ; 

Second.  That,  as  of  the  three  persons  who  received  the  highest  nn  mber 
of  votes  for  electors  at  the  election,  only  two  of  them,  Odell  and 
Cartwright,  were  then  eligible,  they  were  the  only  persons  "  duly 
appointed"  electors ;  and  there  was  a  failure  on  the  part  of  the  State 
to  appoint  a  third  elector ;  and 

Third.  That,  as  the  Legislature  has  made  no  provisionfor  the  appoint- 

*  These  provisions  are  taken  from  the  act  of  January  23,  1845,  which  is  as  fol 
lows  : 

An  act  to  establish  a  uniform  time  for  holding  elections  for  electors  of  President 
and  Vice-President  of  the  United  States. 

SECTION  1.  Be  it  enacted,  <£•<;.,  That  the  electors  of  the  President  and  Vice-pres 
ident  shall  be  appointed  in  each  State  on  the  Tuesday  next  after  the  first  Monday 
in  the  month  of  November  of  the  year  in  which  they  are  to  be  appointed :  Provided, 
That  each  State  may  by  law  provide  for  the  filling  of  any  vacancy  or  vacancies 
which  may  occur  in  its  college  of  electors,  when  such  college  meets  to  give  its 
electoral  vote :  And  provided  also,  When  any  State  shall  have  held  an  election  for 
the  purpose  of  choosing  electors,  and  shall  fail  to  make  a  choice  on  the  day  afore 
said,  then  the  electors  may  be  appointed  on  a  subsequent  day,  in  such  manner  is 
the  State  shall  by  law  provide. 

Approved  January  23,  1845. 


ment  of  an  elector  under  the  act  of  Congress  where  there  is  a  failure 
to  make  a  choice  on  the  day  prescribed  by  law,  the  attempted  elec 
tion  of  a  third  elector  by  the  two  persons  chosen,  as  in  case  of  a 
vacancy,  was  inoperative  and  void. 

I  have  prepared  resolutions  expressive  of  these  views  which  I  shall 
in  proper  time  present  to  the  Commission  for  its  action. 

Upon  the  question  whether  Watts,  by  his  appointment  to  fill  a  sup 
posed  vacancy,  or  by  virtue  of  the  election  in  November,  was  a  de 
facto  officer,  whose  act  is  to  be  treated  as  valid,  I  have  only  a  word 
or  two  to  say : 

First.  There  could  be  no  filling  of  a  vacancy  if  no  vacancy  within 
the  meaning  of  the  statute  existed.  As  already  said,  Watts  could 
not  create  such  a  vacancy  by  assuming  to  resign  an  office  which  lie 
had  never  held.  There  could  be  no  de  facto  officer  where  there  was 
no  office. 

Second.  The  doctrine  that  the  acts  of  officers  de  facto  are  to  be  held 
as  valid  is  usually  applied  to  cases  where  the  office  filled  is  a  contin 
uing  one,  like  that  of  a  judgeship  of  a  court,  or  a  directorship  of  a 
corporation,  or  a  commissionership  of  a  county ;  and  is  properly  appli 
cable  only  to  such  cases,  and  to  cases  where  the  functions  of  the  office 
consist  in  supervising  or  recording  the  acts  of  numerous  parties,  like 
an  inspectorship  or  clerkship  of  an  election,  or  aregistership  of  deeds; 
and  then  is  applied  simply  on  grounds  of  public  policy,  for  the  pro 
tection  of  the  public  and  parties  who  have  relied  upon  such  acts. 
It  is  not  properly  applicable  to  cases  where  the  entire  function  of  the 
office  consists  in  the  performance  of  a  single  act ;  although  there  are 
dicta  that  it  has  been  so  applied.  The  only  instances  mentioned  of 
such  application  are  those  where  there  was  a  colorable  appointment 
of  a  deputy,  or  other  under-officer,  to  do  a  particular  act  for  his  prin 
cipal  ;  and  the  acts  of  the  subordinate  officers  in  those  instances  were 
sustained  on  other  grounds.  In  the  case  of  a  continuing  office,  a 
single  act  of  the  officer  may  be  upheld,  as  for  instance  the  order  of 
a  judge  de  facto,  though  he  should  exercise  his  authority  in  no  other 
instance.  But  where  there  is  no  continuing  office,  and  an  isolated 
act  is  to  be  performed,  the  person  undertaking  the  execution  of  the  act 
as  agent  of  the  State,  must  be  legally  invested  with  authority,  or  his 
action  will  be  void.  All  the  authorities  cited  in  the  argument  of  one 
of  the  objectors  [Mr.  Mitchell]  relate  to  cases  of  the  former  kind,  and 
have  no  application  to  a  case  like  the  one  before  us. 

Third.  If  Watts  can  be  considered  as  having  acted  by  virtue  of  the 
election  in  November,  a  position  which  is  not  claimed  for  him  in  the 
certificate  transmitted  to  the  President  of  the  Senate,  then  the  doc 
trine  asserted  is  not  applicable  to  his  acts,  for  the  further  reason  that 
such  application  would  nullify  an  express  provision  of  the  Constitu 
tion.  The  doctrine  invoked  is  that  if  a  person  whose  appointment  is 
prohibited  is,  nevertheless,  permitted  to  act  upon  a  certificate  of  elec 
tion,  the  prohibition  as  to  him  is  abrogated,  aud  his  acts  are  as  valid 
as  though  the  prohibition  had  never  existed.  He  shall  not  be  ap 
pointed,  says  the  Constitution ;  but  if  he  is  appointed,  says  this  doc 
trine,  that  fact  will  make  no  difference;  the  prohibition  will  not  im 
pair  the  validity  of  his  action ;  the  prohibition  is  a  dead  letter. 


Remarks  of  Jlr.  Commissioner  Strong. 


The  Electoral  Commission  having  under  consideration  an  offer  of  evidence  to 
impeach  the  canvass  of  the  November  election  in  Florida  for  presidential  electors 
made  by  the  State  canvassing  board — 

Mr.  Commissioner  STRONG  said : 

Mr.  PRESIDENT:  If  the  evidence  offered  can  have  any  legitimate 
and  constitutional  bearing  upon  the  decision  of  the  questions  sent  to 
this  Commission  by  the  act  of  Congress  which  has  conferred  upon  us 
our  powers,  it  is  pertinent  within  the  meaning  of  the  act,  and  it  ought 
to  be  received.  But  if,  on  the  other  hand,  it  has  no  such  bearing — 
if,  when  received,  it  could  not  lawfully  affect  the  decision  we  are  em 
powered  to  make,  it  is  impertinent,  and  it  should  not  be  admitted. 
It  is,  therefore,  a  vital  inquiry  for  what  precise  purpose  the  evidence 
is  offered.  Without  undertaking  to  call  attention  to  it  in  detail,  it 
may  be  said  that,  primarily  and  substantially,  the  attempt  of  those 
who  offer  it  is  to  show  that  the  persons  who,  for  convenience,  are 
called  the  Hayes  electors  were  not  in  fact  elected  by  the  people  of 
Florida;  that  the  return  of  their  election,  and  the  governor's  cer 
tificate  founded  on  the  return,  were  not  a  true  representation  of 
the  votes  cast,  but  that  the  Tilden  electors  were  elected,  and  that 
the  canvass  and  decision  of  the  board  of  State  canvassers  should  have 
so  declared.  What  we  are  asked  to  do,  then,  is  to  recanvass  a  State 
election  for  State  agents  or  officers,  or,  rather,  to  try  a  con  tested  elec 
tion  for  presidential  electors,  such  a  contested  election  as  is  provided 
for  in  most  of  the  States  by  established  tribunals  created  for  the  pur 
pose  of  determining  election  contests,  on  which  courts  of  law  fre 
quently  decide  in  cases  of  quo  warranto. 

Hence,  the  question  that  meets  us  at  the  outset  is:  Has  this  Com 
mission  power  to  try  a  case  of  contested  election  in  a  State  ?  It  has, 
by  virtue  of  the  act  which  created  it,  all  the  powers  over  the  Florida 
election  for  electors  which  Congress  itself  has,  and  all  which  either 
House  has,  as  well  as  all  which  the  two  Houses  in  convention 
have.  It  can  have  no  more.  Congress  could  have  conferred  no 


252 


ELECTORAL  COMMISSION. 


more,  and  it  has  made  no  attempt  to  confer  more.  The  statute  di 
rects  ns  to  consider  all  certificates,  votes,  and  papers  from  a  State  ob 
jected  to,  and  all  papers  accompanying  the  same,  with  the  objections, 
and  directs  us  to  consider  them  "  with  the  same  powers,  if  any,  now 
possessed  for  that  purpose,  acting  separately  or  together,  and  by  a 
majority  of  votes  decide  whether  any  and  what  votes  from  such  State 
are  the  votes  provided  for  by  the  Constitution  of  the  United  States, 
and  how  many  and  what  persons  were  duly  appointed  electors  in  such 
State,  and  [we]  may  therein  take  into  view  such  petitions,  deposi 
tions,  and  other  papers,  if  any,  as  shall  by  the  Constitution  and  now 
existing  law  be  competent  and  pertinent  in  such  consideration."  Wo 
are,  therefore,  to  have  whatever  powers  Congress  has,  if  any,  under 
the  Constitution  for  the  purpose  of  considering  the  papers  laid  before 
ns,  and  the  same  powers  for  deciding  what  are  the  votes  provided 
for  by  the  Constitution.  In  making  our  decision  and  report,  as  well 
as  in  receiving  extrinsic  evidence,  we  can  only  act  within  the  limits  of 
the  constitutional  power  conferred  upon  Congress.  This  is  plain 
from  the  language  of  the  act,  as  I  have  quoted  it. 

The  question,  then,  restated  and  carried  back  one  step,  is  this : 
Has  Congress  power  to  recanvass  the  votes  and  returns  of  votes  given 
in  a  State  for  presidential  electors,  or  has  it  power  to  try  a  contested 
election  in  a  State  ?  The  answer  to  this  must  be  sought  in  the  Con 
stitution.  Congress,  confessedly,  has  no  powers  which  the  Constitu- 
tion  lias  not  conferred  upon  it,  either  expressly  or  by  fair  implication 
from  the  grant  of  some  express  power.  This  will  not  be  questioned 
by  any  one. 

"Now,  if  it  be  that  Congress,  or  either  House  of  Corgress,  has  any 
power  to  canvass  the  votes  cast  for  electors,  or  the  returns  of  such 
votes,  that  power  must  be  found  in  the  clause  of  the  Constitution 
which  ordains  that  the  President  of  the  Senate  "  shall,  in  the  presence 
of  the  Senate  and  House  of  Representatives,  open  all  the  certificates 
[of  the  lists  of  persons  voted  for  for  President  and  V  ice-President,  and 
of  the  number  of  votes  for  each]  and  the  votes  shall  then  be  counted." 
The  opening  of  the  certificates  and  the  counting  of  the  votes  is  not 
the  election.  Nor  is  the  voting  done  on  the  second  Tuesday  in  No 
vember  the  presidential  election.  It  is  only  preparatory  to  such  elec 
tion.  The  presidential  election  takes  place  on  the  first  Wednesday 
of  December,  when  the  appointed  electors  meet  and  cast  their  votes, 
and  all  that  the  President  of  the  Senate  and  (he  two  Houses  of  Con 
gress  have  to  do  after  that  time  is  to  ascertain  the  result.  And  it  is 
worthy  of  notice  that  in  this  constitutional  provision,  which  alone  is 
the  basis  of  all  claim  set  up  for  congressional  power  to  canvass  the 
votes  and  returns  of  the  November  State  election,  there  is  no  reference 
to  that  election,  or  to  anything  antecedent  to  the  act  of  voting  by  the 
electors.  The  reference  is  exclusively  to  matters  that  must  occur 
after  they  have  performed  their  duties. 

Now,  certainly  no  one  can  contend  the  direction  that  the  votes 
(that  is,  the  votes  of  the  appointed  electors)  shall  be  counted  in  the 
presence  of  the  Senate  and  House  of  Representatives  is  au  express 
bestowal  of  power  upon  any  body  to  inquire  and  determine  whether 
a  State  canvass  of  the  election  of  electors  was  correct  or  not.  The 
framers  of  the  Constitution  well  understood  what  was  necessary  to 
confer  upon  Congress,  or  upon  either  House,  power  to  canvass  elec 
tions  or  returns,  and  the  subject  did  not  escape  their  attention.  When 
such  power  was  iutended  to  be  granted,  it  was  given  in  plain  lan 
guage.  Each  House  was  made  a  judge  "  of  the  elections,  returns,  and 
qualifications  of  its  members."  No  such  language  was  used  respect 
ing  electors,  and  for  what  appears  to  me  to  be  the  plainest  reason. 
The  scheme  of  the  Constitution  was  to  make  the  appointment  of 
electors  exclusively  a  State  affair,  free  from  interference  of  the  legis 
lative  department  of  the  Government,  excepting  only  that  Congress 
was  permitted  to  determine  the  time  for  choosing  electors,  and  the 
day  on  which  they  shall  give  their  votes,  with  this  limitation,  that 
the  day  shall  be  the  same  throughout  the  United  States.  And  it  was 
ordained  that  no  Senator  or  Representative  shall  be  appointed  an 
elector. 

The  States,  as  such,  were  required  to  appoint,  in  such  manner  as 
their  Legislatures  might  direct;  the  plain  object  of  which  was  to  make 
State  governments,  in  the  matter  of  choosing  a  President,  as  inde 
pendent  as  possible  of  any  possible  action  by  the  General  Government. 

It  will,  then,  I  think,  be  admitted  that  the  power  claimed  for  Con 
gress,  and  of  course  for  this  Commission,  by  the  proponents  of  the 
evidence  offered,  has  not  been  expressly  granted.  Is  there  any  impli 
cation  of  such  a  grant  ?  I  am  unable  to  find  it  in  the  Constitution. 
I  have  already  remarked  that  when  the  grant  of  such  a  power  was 
intended  to  be  made  it  was  given  in  unmistakable  language,  expressly 
making  each  House  a  judge  of  the  elections,  returns,  and  qualifica 
tions  of  its  members.  The  express  gift  in  that  case  tends  to  repel  the 
idea  of  an  implied  grant  of  the  same  power  in  any  other.  I  think  it 
may  safely  be  said  that  no  powers  were  granted  to  Congress  by  the 
Constitution,  either  expressly  or  impliedly,  that  were  not  intended  to 
be  granted,  and  it  is  difficult  to  believe  there  was  an  intention  to 
grant  to  Congress  by  implication  power  to  canvass  and  judge  of  elec 
tions  and  returns  of  elections  of  State  electors  when  it  was  thought 
necessary  to  grant  that  power  expressly  in  cases  of  elections  of  Sen 
ators  and  Representatives. 

Au  implication  of  power  must  have  something  upon  which  it  can 
rest,  and  certainly  there  is  in  the  Constitution  no  basis  for  au  impli 
cation  such  as  is  sought  to  bo  made  here  except  it  be  found  in  the  re 
quired  presence  of  the  two  Houses  when  the  electoral  votes  are  to  be 


opened  and  counted.  I  know  of  no  other  implication  of  congressional 
power  which  rests  on  so  shadowy  a  foundation,  and  I  find  it  impossi 
ble  to  infer  from  that  any  grant  of  power  of  canvassing  elections  in 
the  States.  Yet  if  wo  receive  the  evidence  offered  we  shall  bo  claim 
ing  and  exerting  the  exact  power  which  Congress  would  have  pos 
sessed  if  the  Constitution  had  expressly  declared  that  Congress  shall 
be  the  judge  of  the  elections,  returns,  and  qualifications  of  presi 
dential  electors. 

The  truth  is,  the  frame ra  of  the  Constitution  seem  never  to  have 
contemplated  the  possibility  of  disputes  respecting  the  appointment 
of  electors,  and  hence  they  made  no  provision  for  the  decision  of  such 
controversies.  They  were  wise  men,  but  they  did  not  foresee  every 
thing.  They  would  have  been  more  than  human  if  they  had.  I  doubt 
whether  they  had  in  mind  at  all  the  idea  of  a  popular  election  as  ;i 
mode  of  appointing  State  electors.  They  used  the  word  "appoint," 
doubtless  thinking  that  the  Legislatures  of  the  States  would  them 
selves  select  the  electors,  or  empower  the  governor  or  some  other 
State  officer  to  select  them.  The  word  appoint  is  not  the  most  ap 
propriate  word  for  describing  the  result  of  a  popular  election.  Such 
a  mode  of  appointment,  I  submit,  is  allowable,  but  there  is  little  rea 
son  to  think  it  was  contemplated,  and  still  less  reason  to  suppose  that 
the  idea  of  a  contested  popular  election  for  electors  had  any  existence 
in  the  minds  of  its  framers  when  the  Constitution  was  formed.  It 
was  not  until  years  afterward  that  the  electors  were  chosen  by  pop 
ular  vote.  It  is  altogether  improbable,  therefore,  that  any  necessity 
was  felt  in  the  constitutional  convention  for  giving  to  Congress,  or 
any  other  branch  of  the  new  Government,  the  decision  of  contests 
over  the  results  of  such  elections,  and  hence  it  is  not  surprising  we 
find  no  provision  made  for  determining  them. 

And  it  seems  to  me,  if  such  contest  had  been  foreseen,  that  it  is  by 
no  means  clear  the  convention  wxmld  have  provided  for  their  decis 
ion  by  any  Federal  tribunal.  There  are  inherent  difficulties  in  the 
way.  As  I  have  said,  the  appointment  of  electors,  however  it  may  be 
made,  is  peculiarly  and  exclusively  a  State  affair.  The  action  of 
electors  after  their  appointment  has  relation  to  the  General  Govern 
ment,  but  the  appointment  itself  is  a  different  matter.  Before  the 
first  Wednesday  of  December,  when  the  electors  cast  their  votes, 
neither  Congress  nor  any  Department  of  the  General  Government  has 
any  thing  to  do  with  them,  or  with  the  proceeding  for  appointing  them. 
The  State  confessedly  has.  She  has  entire  control  over  the  elections, 
over  the  returns,  and  the  canvass.  And,  so,  after  the  votes  of  the 
electors  have  been  cast,  if  there  be  any  power  over  the  election,  the 
returns,  or  the  canvass,  confessedly  the  State  has  it.  Now,  if  Con 
gress  had  power  also  to  enter  upon  a  recanvass,  or  to  try  a  contest 
over  the  results,  its  exercise  might  lead  to  untold  confusion  and  diffi 
culty.  Congress  might  decide  that  one  set  of  electors  had  been  ap 
pointed,  while  the  State,  which  has  undoubted  authority,  might  de 
cide  another  set  were  the  true  appointees.  If  the  decision  of  Congress 
is  to  prevail,  where  then  is  the  right  of  the  State  to  appoint  in  its  own 
manner?  I  cannot  believe  the  Constitution  justifies  any  such  possi 
ble  conflict,  or  any  such  invasion  of  the  domain  of  a  State.  The  im 
plication  of  such  a  power  ought  to  be  clear,  if  it  exists  at  all.  It 
ought  not  to  rest  on  any  other  than  a  substantial  foundation.  Some 
body  ought  to  be  able  to  put  his  finger  on  some  clause  in  the  Consti 
tution  that  justifies  it.  No  such  clause  haa  been  pointed  out,  and  I 
can  find  none.  The  present  juncture  sometimes  tempta  me  to  wish  I 
could  find  some  power  in  Congress  and  in  this  Commission  to  explore 
to  the  bottom  the  election  and  returna  in  Florida ;  and  could  I  find 
anything  upon  which  to  build  a  fair  implication  of  such  a  power,  I 
would  exert  it.  But  I  cannot  construe  the  Constitution  as  I  may  wish 
it  to  bo.  I  must  construe  it  as  I  find  it. 

If,  then,  Congress  has  not  the  power  to  enter  into  the  consideration 
of  the  evidence  offered,  it  would  be  idle  to  admit  it. 

But  we  are  asked,  Is  there  no  way  of  avoiding  the  possibility  of 
having  electoral  votes  cast  on  the  faith  of  false  returna  of  elections  ? 
Can  no  inquiry  be  made  into  the  correctness  of  auch  returna  f  To 
such  questions  I  reply,  there  ia  ample  power  in  the  State.  '  She  may 
provide  in  any  way  to  purify  her  elections,  and  may  devise  means  to 
correct  an  erroneous  canvass  or  rectify  false  returns  or  throw  out 
illegal  votes.  She  may  do  thia  in  the  moat  summary  way.  She  may 
accomplish  it  completely  before  the  day  for  casting  the  electoral  vote 
arrives.  But  I  find  no  power  in  Congress,  either  express  or  implied, 
to  do  thia  work  which  the  State  may  do. 

There  may  be  a  necessity  for  its  lodgment  somewhere  outside  of  the 
State,  but  when  Congreas  undertakea  to  act  it  must  find  a  warrant 
for  ita  action  in  some  provision  of  the  Constitution.  There  are  many 
things  the  experience  of  ninety  years  haa  taught  us  it  would  bo  de 
sirable  to  have,  some  things  that  seem  to  be  necessary,  which  the  Con 
stitution  haa  not  given. 

In  all  electiona  there  are  and  there  must  be  finalities.  There  must 
be  an  ultimate  canvass  and  ascertainment  of  the  result.  That  must 
be  final  and  conclusive  until  reversed,  though  it  may  not  be  in  exact 
accordance  with  the  actual  facts. 

The  statute  of  Florida  provides  that  its  presidential  electors  shall 
be  appointed  by  a  popular  vote,  and  it  directs  that  the  result  of  that 
vote  shall  be  determined  and  declared  by  a  State  board  of  canvassers 
constituted  as  directed.  That  board  is  made  by  the  statute  the  ulti 
mate  determinant  and  declarant  of  what  the  vote  was  and  of  ita  re 
sult,  and  it  has  power  in  certain  cases  to  exclude  county  returns. 
The  board  is  to  determine  and  declare.  Such  is  the  plain  direction  of 


ELECTORAL  COMMISSION. 


253 


the  act.  Determination  is  a  quasi-judicial  act,  the  declaration  •which 
is  to  follow  is  an  announcement  of  the  determination,  and  after  the 
determination  and  declaration  the  governor  is  required  to  give  a  cer 
tificate  to  the  persons  elected  electors.  But  how  is  he  to  know  who 
has  heen  elected,  except  from  the  determination  and  declaration  of 
the  board  ?  He  has  no  authority  to  canvass  the  returns,  and  he  can 
not  overrule  the  action  of  the  hoard.  He  must  be  governed  by  that 
action  if  he  obeys  the  law  and  certifies  as  required. 

I  admit  the  declaration  and  determination  of  the  board  may  be  set 
aside  by  any  authority  the  State  may  designate  to  try  contested  elec 
tions.  It  may  be  shown  to  be  erroneous  on  the  trial  of  a  quo  warranto, 
but  until  thus  reversed,  it  is  and  must  be  final,  obligatory  upon  the 
governor  as  upon  all  others.  The  certificate  he  is  required  by  law  to 
give,  is  a  certilicate  of  a  fact,  and  of  a  fact  which  can  appear  only  in 
that  determination  of  the  State  board  of  canvassers,  which  is  in  ex 
istence  unreversed  when  the  certificate  is  to  be  given.  Surely  ho  can 
not  certify  that  a  person  has  been  elected  who  at  the  time  of  his  cer 
tificate  is  shown  by  the  determination  of  the  State  board  not  to  have 
been  elected.  Such  a  certificate  would  be  a  palpable  falsehood  and 
fraud. 

Now,  in  this  case,  it  is  not  offered  to  be  shown  that  Governor  Stearns's 
certificate  of  the  election  of  what  are  called  the  Hayes  electors  did 
not  truly  represent  the  conclusions  and  determination  of  the  State 
board,  and  if  it  did  truly  conform  to  that  determination,  it  was  such 
a  certilicate  as  he  was  authorized  and  required  to  make.  It  was  neither 
nnlrue  nor  fraudulent. 

I  admit  the  governor's  certificate  is  not  unimpeachable.  It  may  be 
shown  to  be  untrue  by  proof  that  it  does  not  correspond  with  the  de 
termination  of  the  canvassing  board.  It  may  be  proved  to  bo  a  for 
gery.  But  in  the  present  case  these  things  are  not  alleged.  The 
certificate  must  be,  therefore,  at  least  prima  fade  evidence  that  the 
persons  certified  to  be  elected  were  in  fact  elected,  and,  therefore, 
that  they  were  the  State's  appointees.  They  derived  their  title  from 
tLie  election,  and  what  was  the  result  of  the  election  was  determined 
by  the  State  canvassing  board.  The  determination,  1  have  said,  may 
have  been  subject  to  revision  by  process  of  State  law,  but  until  an 
nulled  it  was  the  pronounced  action  of  the  State. 

Are  then  persons  who  have  received  a  governor's  certificate  that 
they  have  been  appointed  electors,  a  certificate  which  the  governor 
is  required  by  law  to  give,  and  which  is  founded  on  a  quasi- judicial 
determination  of  the  results  of  the  election,  incapable  of  acting  until 
it  shall  be  decided  by  another  tribunal,  in  some  proceeding  which  may 
or  may  not  afterward  be  commenced,  whether  the  determined  and 
declared  result  of  the  election  was  erroneous  or  not  ? 

Must  every  person  who  has  received  a  commission  to  fill  an  office, 
the  duties  of  which  are  to  be  performed  immediately,  if  at  all,  dec-line 
acting  under  the  commission  because  subsequent  investigation  may 
have  ^howu  that  he  was  not  entitled  to  it  ?  No  such  doctrine,  I  think, 
has  ever  been  asserted  by  any  tribunal. 

Now,  then,  the  persons  who  voted  for  Hayes  on  the  6th  day  of 
December  had  all  the  insignia  of  title  when  they  voted.  They  had 
the  governor's  certificate  of  their  right.  They  had  the  judicial  deter 
mination  and  declaration  of  the  State  canvassing  board  that  they 
had  been  elected.  No  other  persons  had  even  a  prima  facie  right. 
The  Tildeii  electors  had  no  decision  in  their  favor  of  any  board  or 
tribunal  authorized  by  law  to  ascertain  and  declare  the  results  of  the 
election.  They  had  no  certificate  from  anybody  empowered  to  cer 
tify  that  they  were  electors.  They  were  not  even  electors  de  facto. 

I  do  not  care  to  discuss  the  question  how  far  the  acts  of  officers  de 
facto  are  effective.  It  is  admitted  that  they  generally  are  valid  as 
against,  or  for,  others  than  themselves.  But  I  maintain  that  the  acts 
of  such  officers  are  de  jure.  When  they  have  at  the  time  of  their 
action  all  the  evidences  of  right  known  to  the  law,  their  right  is  ab 
solute  and  perfect  until  annulled  or  revoked.  I  do  not  see  how  any 
body  can  contend  that  acts  of  officers  who  have  received  certificates 
of  their  election  from  the  authority  empowered  and  directed  to  issue 
such  certificates— certificates  truly  representing  the  final  returns  of 
the  election,  as  determined  and  declared  by  the  ultimate  board  con 
stituted  by  law  for  making  such  determination — are  not  dejure.  How 
can  it  be  maintained  that  such  officers  are  personally  responsible  fox 
acts  done  in  pursuance  of  their  apparent  right,  even  though  it  may 
subsequently  be  shown  that  they  were  not  in  fact  elected  1  Could 
the  Hayes  electors  have  been  sued  for  intrusion  ?  If  they  had  been, 
would  not  the  governor's  certificate  and  the  determination  of  the  State 
canvassing  board  have  been  a  complete  protection  ?  If  a  sheriff  has 
a  commission  from  a  governor,  are  his  acts,  -while  he  holds  the  com 
mission,  rendered  invalid  by  a  subsequent;  judicial  decree  that  he  was 
not  entitled  to  the  office  ?  Surely  this  will  not  be  claimed.  And  if  it 
cannot  be,  it  is  because  the  acts  of  such  officers  are  rightful,  or  dejure 
In  my  judgment  it  follows  inevitably  that  what  was  done  in  Florida 
after  the  6th  of  December  is  immaterial.  Neither  the  action  of  the 
Legislature,  nor  a  post  hac  decision  of  a  court,  can  affect  an  act  right 
fully  done  when  it  was  done,  and  completed  before  the  Legislature 
and  the  court  attempted  to  annul  the  authority  for  it. 

Mr.  Commissioner  THURMAN.    Are  we  not  now  counting  the  vote  ? 
Is  it  not  a  matter  in  fieri  t 

Mr.  Commissioner  STRONG.  We  are  now  counting  the  electora 
vote.  But  the  offer  of  evidence  assumes  that  we  may  count  the  State 
vote  for  electors,  an  antecedent  matter.  I  have  already  attempted  to 
show  that  there  is  no  constitutional  power  in  Congress,  and  conse 


quently  none  in  us,  to  count  the  votes  of  States,  or  to  review  a  State 
canvass. 

But  to  return  to  the  subject  I  was  considering.  There  must  be  a 
inality  in  ascertaining  the  results  of  an  election,  and  when  the  elec- 
ion  is  a  mode  of  appointment  of  persons  to  cast  a  vote  for  a  State  on 
an  appointed  day,  the  finality  must  be  on  or  before  that  day,  else 
nothing  can  be  settled.  The  electors  of  the  State  of  New  York  cast 
ihe  votes  of  the  State  on  the  6th  of  December  last.  Can  those  votes 
low  be  nullified  by  any  subsequent  action  of  the  New  York  Legis- 
.ature  declaring  that  the  persona  who  voted  were  not  elected,  or 
creating  a  new  board  to  make  a  new  canvass,  or  by  the  judgment  of 
an  inferior  court,  or  any  other  court,  that  other  persons  were  entitled 
to  cast  the  votes  of  the  State  ?  If  that  is  possible,  the  new  President 
to  be  installed  on  the  4th  of  March  next  can  be  ousted  by  the  declara 
tion  of  a  State  Legislature  or  the  judgment  of  a  State  court.  Thero 
s  no  statute  of  limitations  to  bar  such  action  by  any  State.  If  the 
votes  of  electors  can  be  destroyed  by  State  action  after  they  have 
been  cast,  it  may  be  done  next  July  as  well  as  it  can  be  now. 

But  I  have  detained  the  Commission  too  long.  I  will  only  add  some 
references  to  a  few  decisions  that  bear  directly  on  the  question  before 
us,  and  show  the  conclusive  effect  of  the  decision  of  a  statutory  can 
vassing  board. 

In  25  Maine  Reports,  567,  may  be  found  a  unanimous  opinion  of 
the  supreme  judicial  court  in  answer  to  a  question  propounded  to 
the  court  by  the  governor.  The  question  was,  "  Is  it  competent  for 
the  governor  and  council,  in  counting  votes  for  county  officers,  under 
the  provisions  of  the  act  providing  for  the  election  of  county  officers, 
approved  February  22, 1842,  to  receive  from  the  town  clerk  and  select 
men  evidence  to  show  that  the  return  made  by  them  does  not  corre 
spond  with  the  records?"  The  constitution  and  statutes  of  the  State 
required,  in  the  choice  of  county  officers,  that  the  votes  of  towns 
and  plantations  should  be  received  by  their  selectmen  and  assessors 
respectively,  in  the  presence  of  their  respective  town  and  plantation 
clerks,  and  that  the  clerks  should  make  a  list  of  the  persons  voted  for, 
with  the  number  of  votes  for  each  against  his  name,  and  that  the  same 
should  be  recorded  in  the  presence  of  the  selectmen  and  assessors  re 
spectively,  in  the  open  town  and  plantation  meetings,  and  thnt  fair 
copies  of  the  lists  should  be  attested  by  the  selectmen  and  assessors 
of  their  respective  towns  and  plantations,  and  by  the  clerks  of  each, 
and  sealed  up  in  open  town  and  plantation  meetings.  The  votes  so 
sealed  up  are  required  to  be  transmitted  to  the  governor  and  council 
within  thirty  days  thereafter,  who  are  "to  open  and  count  the  votes 
returned."  Open  and  count  the  votes.  Such  is  the  language  of  the 
law.  The  court  was  of  opinion  that  the  governor  and  council  had  no 
authority  to  receive  any  other  evidence  in  relation  to  the  votes  than 
what  the  certificates,  so  prepared,  transmitted,  and  received,  may  con 
tain — not  even  evidence  that  the  township  records  differ  from  the  re 
turn  lists.  A  similar  decision  was  made  in  Bacon  vs.  The  York  Com 
missions,  26  Maine,  494 ;  and  a  like  opinion  was  given  in  1867,  reported 
in  54  Maine,  602. 

In  The  People  ex  rel.  Bailey  vs.  The  Supervisors  of  Greene,  17  Barb., 
217,  it  was  held  that  after  a  board  of  county  canvassers  has  met  nd 
organized  according  to  law,  and  proceeded  to  estimate  the  votes  of 
the  county,  and  to  make  the  staf  i-mont  prescribed  by  the  statute,  and  to 
determine  who  have  been  elected  county  officers,  and  a  copy  of  their 
determination  has  been  published  and  filed  and  become  a  matter  of 
record,  and  the  board  has  dissolved,  a  mandamus  will  not  lie  requir 
ing  them  to  re-organize  audcorrect  the  estimate  of  votesof  the  county, 
by  allowing  counting,  canvassing,  and  estimating  the  votes  of  an 
election  district  alleged  to  have  beou  improperly  omitted  by  the  board 
at  its  former  meeting. 

In  Hadley  vs.  The  Mayor  of  Albany,  33  New  York  Court  of  Appeals, 
603,  it  was  ruled  that  when  the  law  has  committed  to  the  common 
council  of  a  city  the  duty  of  canvassing  the  returns  and  determining 
the  result  of  an  election  from  them,  and  the  council  have  performed 
that  duty  and  made  their  determination  from  them,  they  have  ex 
hausted  their  power  and  cannot  afterward  reverse  their  decision  by 
making  a  different  determination.  It  was  also  held  that  the  question 
as  to  the  effect  of  the  returns  is  not  open  for  determination  by  a  jury 
in  an  action  to  which  the  title  to  his  office  comes  up  collaterally.  In 
that  case  an  offer  was  made  to  show  that  the  returns  in  fact  showed 
(as  is  alleged  in  the  case  now  before  us)  that,  the  person  determined 
and  declared  elected  was  not  elected.  But  the  evidence  was  ruled 
inadmissible,  and  Denio,  the  eminent  judge  who  delivered  the  opin 
ion  of  the  court,  said  : 

If  the  question  had  arisen  upon  an  action  in  the  nature  of  a  quo  warranto  infor 
mation  the  evidence  would  have  been  competent.  But  it  would  be  intolerable  to 
allow  a  party  ati'e cted  by  the  acts  of  a  person  claiming  to  be  an  officer  to  go  behind 
the  official  determination  to  prove  that  such  official  determination  arose  out  of 
mistake  or  fraud. 

So  in  Clark  vs.  Buchanan,  2  Minnesota,  346,  it  was  held  that  a  can 
vassing  board,  having  made  a  canvass  and  adjourned  sine  die,  was 
functiis  offitio,  and  had  no  right  to  reconvene  and  correct  errors  in  its 
decisions. 

I  know  of  no  authorities  in  conflict  with  these.  There  are  very 
many  that  assert  the  same  doctrine.  My  conclusions,  then,  are  that 
neither  Congress  nor  this  Commission  has  authority  under  the  Con 
stitution  to  recanvass  the  vote  of  Florida  for  State  electors;  that 
the  first  determination  of  the  State  canvassing  board  was  conclusive 
until  it  was  reversed  by  State  authority ;  that  while  it  remained  un- 


254 


ELECTORAL  COMMISSION. 


reversed  it  conferred  upon  the  persons  declared  l>y  it  to  have  been 
chosen  electors  rightful  authority  to  cast  the  vote  of  the  State  ;  and 
that  the  act  which  those  electors  were  appointed  to  do  having  been 
done,  it  was  not  in  the  power  oven  of  the  State  afterward  to  undo 
the  act  and  call  in  question  the  authority  by  which  it  was  done. 

It  follows,  in  my  judgment,  that  the  evidence  now  offered  is  im 
pertinent  to  any  question  we  can  decide,  and,  therefore,  that  it 
ought  not  to  bo  admitted. 


OREGON. 

The  electoral  votes  of  Oregon  being  under  consideration- 
Mr.  Commissioner  STRONG  said : 

Mr.  PRESIDENT  :  I  do  not  propose  to  present  an  extended  argument 
in  support  of  the  opinions  I  have  respecting  this  case.  The  condition 
of  my  health  forbids  that ;  but  I  wish  to  state  very  briefly  what  my 
opinions  are,  together  with  the  conclusions  at  which  I  have  arrived. 
I  still  think,  as  I  thought  when  we  had  the  Florida  and  Louisiana 
cases  under  consideration,  that  when  the  laws  of  a  State  have  ap 
pointed  a  tribunal,  either  a  board,  a  council,  an  officer,  or  any  au 
thority  to  ascertain,  decide,  or  determine  what  have  been  the  results 
of  an  election  for  presidential  electors,  the  decision  of  that  board,  offi 
cer,  or  authority  is  conclusive,  so  long  as  it  remains  unreversed  by  a 
judicial  tribunal  empowered  by  State  law  to  reverse  it.  If  I  could 
have  had  any  doubts  upon  this  subject  they  would  have  been  removed 
by  the  very  able  argument  of  Judge  Hoadly,  submitted  to  us  night 
before  last,  and  by  the  numerous  authorities  he  cited.  Those  authori 
ties  show  that  it  is  everywhere  held  the  decision  or  ascertainment  of 
the  result  of  an  election  by  the  appointed  canvassing  authority  is  final, 
and  that  it  must  be  accepted  as  such.  Not  a  single  authority  has 
been  adduced  which  asserts  any  other  doctrine.  The  right  of  a  per 
son  claiming  to  have  been  elected  is  to  be  tested,  then,  by  the  results 
of  the  State  canvass,  not  by  what  preceded  it,  and  not  by  what  fol 
lowed  it.  The  State  canvass  is  the  determination  by  the  State,  acting 
through  its  appointed  agents,  its  determination  of  the  question  who 
was  elected.  I  have  never  doubted  that  when  the  legal  profession  of 
the  country  shall  come  to  examine  the  subject  coolly,  as  they  will 
after  the  present  excitement  has  passed,  they  will  agree  that  this  is  a 
perfectly  sound  doctrine.  But  I  had  not  expected  the  doctrine  would, 
at  this  early  period,  in  the  midst  of  an  excited  party  struggle,  receive 
the  assent  and  complete  vindication  it  has  received  from  the  counsel 
who  has  addressed  us  on  behalf  of  the  Tilden  electors. 

In  view  of  this  principle,  to  which  there  appears  to  be  universal  as 
sent,  lot  us  examine  the  statutes  of  Oregon  and  see  what  provision 
that  State  has  made  for  ascertaining  and  determining  the  results  of 
elections  for  presidential  electors.  The  sixtieth  section  of  its  election 
laws  enacts  that  "  the  votes  for  electors  shall  be  given,  received,  re 
turned,  and  canvassed  as  the  same  are  given,  returned,  and  canvassed 
for  members  of  Congress,"  and  former  sections  of  the  act  prescribe 
how  the  returns  and  canvass  of  votes  for  members  of  Congress  shall 
be  made.  lu  each  county  the  county  clerk  is  required  to  make  an  ab 
stract  of  the  votes  cast  in  the  county  and  send  it  to  the  secretary  of 
state ;  and  the  thirty-seventh  section  of  the  law  directs  as  follows : 

It  shall  be  the  duty  of  the  secretary  of  state,  in  the  presence  of  the  governor,  to 
proceed,  within  thirty  days  after  the  election,  and  sooner  if  the  returns  be  all  re 
ceived,  to  canvass  the  votes  given  for  *  *  *  members  of  Congress. 

This  provision  plainly  makes  the  secretary  of  state  the  sole  canvass 
ing  officer.  It  may  not  be  proper  to  call  him  a  board,  but  he  is  the 
sole  officer  designated  and  appointed  by  the  law  to  make  the  canvass 
and  ascertain  the  result  of  the  election.  It  is  true  he  must  make  the 
canvass  in  the  presence  of  the  governor,  but  no  duties  in  regard  to 
the  cauvass  are  assigned  by  the  law  to  the  governor.  His  presence 
is  required  to  insure  an  open  canvass,  and  for  no  other  apparent  rea 
son.  Had  it  been  intended  he  should  take  part  in  the  canvass  the 
language  of  the  act  would  have  been,  it  shall  be  the  duty  of  the  secre 
tary  of  state  and  of  the  governor  to  proceed  to  canvass  the  votes,  &c. 
But  the  words  actually  used  have  no  such  meaning.  It  is  worthy  of 
notice  that  in  the  thirty-fifth  section,  where  provision  is  made  for  a 
county  canvass,  and  for  making  up  the  abstract  of  votes  to  be  sent 
to  the  secretary  of  state,  it  is  enacted  that  the  county  clerk,  "  taking 
to  his  assistance  two  justices  of  the  peace  of  the  county,  shall  proceed 
to  open  [the  returns  received]  and  make  abstracts  of  the  votes." 
There  the  two  justices  selected  are  made  part  of  the  county  canvass 
ing  board,  because  they  are  to  be  active  participants  therein,  but 
the  provision  in  regard  to  the  State  canvass  is  widely  different,  and 
the  different  language  employed  respecting  that  indicates  clearly  a 
difference  of  intention.  I  think,  therefore,  that  it  is  beyond  any  rea 
sonable  doubt  that  by  the  law  of  Oregon  the  secretary  of'state  is  made 
the  sole  canvassing  officer  to  ascertain,  from  the  county  abstracts 
sent  to  him,  and  to  determine  the  results  of  an  election  for  member 
of  Congress,  and  also  for  presidential  electors. 

This  canvass  was  made  in  the  present  case,  and  we  have  it  before 
us.  The  secretary  of  state  has  certified  and  affixed  the  seal  of  the 
fetate  to  his  certificate  that  the  tabulated  statement  to  which  he  cer 
tifies  is  the  result  of  the  vote  cast  for  presidential  electors  at  a  gen 
eral  election  held  in  and  for  the  State  of  Oregon  on  the  7th  day  of 


November,  A.  D.  1870,  as  opened  and  canvassed  in  the  presence  of  his 
excellency  L.  F.  Grover,  governor  of  the  State,  according  to  law,  011 
the  4th  day  of  December,  A.  D.  1876,  at  two  o'clock  of  that  day,  by  the 
secretary  of  state.  That  certificate  shows  that  each  of  the  three 
Hayes  electors  received  over  15,200  votes  and  that  each  of  the  Tilden 
electors  received  less  than  14,200.  The  secretary  has  also  made  out 
and  certified,  over  the  seal  of  the  State,  a  list  of  the  names  of  the 
three  persons  who  received  the  highest  number  of  votes,  as  it  appears 
by  the  returns  of  the  election  on  file  in  his  office,  and  those  three  per 
sons  are  the  three  Hayes  electors. 

This  result  of  the  canvass,  thus  made  to  appear,  was  the  final  de 
termination  of  the  officer  appointed  by  the  State  to  make  such  a  de 
termination.  I  agree  with  tLe  honorable  Senator  from  Delaware  that 
there  is  no  essential  difference  in  the  authority  of  the  State  canvass 
ing  boards  of  Florida  and  that  of  the  State  canvassing  officer  of 
Oregon.  The  duty  of  each  is  to  ascertain,  as  a  finality,  who  have 
been,  elected  by  the  popular  votes.  But  in  Oregon  there  is  a  most 
important  statutory  provision.  It  is  found  in  the  fortieth  section  of 
the  law  regulating  elections,  as  follows: 

In  all  elections  in  this  State,  the  person  having  the  highest  number  of  votes  for 
any  office  shall  bo  deemed  to  have  been  elected. 

When,  therefore,  the  secretary  of  state,  on  the  4th  day  of  Decem 
ber,  1876,  canvassed  the  vote  of  the  State,  and  ascertained,  as  he  did, 
that  Odell,  Cartwright,  and  Watts  had  received  the  highest  number  of 
votes  for  presidential  electors,  the  law  declared  them  to  be  elected. 
It  required  that  they  should  be  deemed  elected.  Deemed  by  whom  * 
Deemed  elected  by  the  secretary  of  state,  by  the  governor,  and  by 
everybody  else.  Apart,  then,  from  the  question  respecting  the  alleged 
ineligibility  of  Watts,  of  which  I  shall  speak  hereafter,  the  appoint 
ment  of  those  three  electors  was  complete  on  that  day,  so  soon  as  the 
secretary  of  state  had  completed  his  canvass.  Now,  had  nothing  more 
been  done ;  had  no  certificate  of  their  election  ever  been  given  by 
the  secretary  or  by  the  governor,  the  three  electors,  having  been 
ascertained  by  the  State's  appointed  officer  to  have  received  the 
highest  number  of  votes  and  having  been  required  by  law  to  be 
deemed  elected,  would  have  had  a  complete  and  unquestionable  right 
to  cast  the  vote  of  the  State  for  President  and  Vice-President.  No 
one  doubts  or  denies  this.  Their  right  was  founded  upon  the  election 
as  determined  by  the  law,  and  not  upon  any  certificate  of  their  having 
been  elected  or  of  their  being  electors. 

But  the  sixtieth  section  of  the  statute  imposes  upon  the  secretary 
of  state  an  additional  duty,  to  be  performed  after  he  has  completed  the 
canvass.  He  is  required  to  prepare  two  lists  of  the  names  of  the  elect 
ors  elected,  and  affix  the  seal  of  the  State  to  the  same.  These  lists 
are  required  to  be  signed  by  the  secretary  and  the  governor,  and  to 
be  delivered  by  the  secretary  to  the  college  of  electors  at  the  hour  of 
their  meeting  on  the  first  Wednesday  of  December.  This,  I  say,  is 
no  part  of  the  canvass.  It  is  a  simple  ministerial  act,  which  may  be 
performed,  and  which  was  performed  in  the  present  case,  days  after 
the  canvass  and  determination  of  the  question  who  had  the  highest 
number  of  votes,  and  days  after  the  time  when,  by  force  of  the  law, 
the  persons  ascertained  to  have  received  the  highest  number  were 
deemed  to  have  been  elected.  These  lists,  then,  are  in  no  sense  the 
commission  of  the  electors  and  their  warrant  for  action.  Their  au 
thority  is  complete  before  the  lists  are  made  out.  Nor  can  there  be 
any  pretense  for  saying  that  the  lists  are  the  decision  of  the  canvass 
ing  officer.  Nobody  claims  that.  What,  then,  are  they  and  what 
purpose  were  they  designed  to  subserve  ?  They  are  not  required  to 
give  notice  to  the  electors  that  they  have  been  appointed.  This  is 
clear,  for  they  are  not  to  be  delivered  to  the  college  of  electors  until 
the  hour  of  their  meeting.  As  notices,  therefore,  they  would  be  nu 
gatory.  The  chosen  electors  might  reside  hundreds  of  miles  from  the 
capital.  Had  the  lists  been  intended  for  notice  of  appointment,  serv 
ice  of  them  must  have  been  required  before  the  hour  of  meeting.  It 
is  evident  they  are  intended  to  be  evidence,  on  the  count  here,  of  a  pre 
vious  appointment,  and  they  are  made  out  in  duplicate  that  they  may 
accompany  the  two  certificates  of  votes  required  by  the  act  of  Con 
gress  of  1792  to  be  sent  to  the  President  of  the  Senate.  These  lists, 
it  is  true,  are  required  to  be  signed  by  the  governor  as  well  as  by  the 
secretary  of  state.  They  are  not  to  be  made  out  by  the  governor  or 
delivered  by  him.  Ho,  as  well  as  the  secretary,  signs  to  furnish  evi 
dence  required  at  Washington  to  show  here  that  the  State  had  pre 
viously  appointed  the  persons  electors  whose  votes  have  been  sent. 

The  truth  is,  the  law  of  Oregon  confers  on  the  governor  no  author 
ity  to  canvass  thereturns  of  votes  for  presidential  electors,  or  to  com 
mission  those  who  by  the  ascertainment  and  decision  of  this  canvass 
ing  authority  are  to  be  deemed  elected,  or  to  certify  who  have  been 
appointed.  He  may  grant  such  a  certificate  of  election  to  the  person 
having  the  highest  number  of  votes  for  certain  other  offices  and  may 
issue  a  proclamation  declaring  the  election  of  such  person.  This 
power  is  conferred  by  the  thirty-seventh  section.  But  the  provisions 
in  regard  to  presidential  electors  are  entirely  different.  His  certifi 
cate  of  their  election  is  wholly  unauthorized.  When,  therefore,  he 
certified  that  Odell  received  15,206  votes,  Cartwright  15,214  votes,  E. 
A.  Cronin  14,157  votes  for  electors,  being  the  highest  number  of  votes 
cast  at  the  election  for  persons  eligible  to  be  appointed  electors,  and 
declared  them  duly  elected  electors  for  the  State  of  Oregon,  he  did 
an  act  which  the  law  conferred  upon  him  no  power  to  do,  and  he  cer- 


ELECTORAL  COMMISSION. 


tified  what  was  untrue,  for  the  law  declared  that  the  persons  who 
had  the  highest  number  of  votes  should  be  deemed  elected. 

This  unauthorized  certificate,  which  alone  is  the  foundation  of  all 
claim  the  Tilden  electors  set  up,  was  the  act  of  the  governor.  It  was 
attested,  it  is  true,  by  the  secretary  of  state,  and  the  seal  of  the  State 
is  attached,  but  it  is  not  the  certificate  of  the  secretary  any  more 
than  the  attestation  of  Mr.  Secretary  Fish  to  a  presidential  proclama 
tion  of  a  thanksgiving  day  makes  it  Mr.  Fish's  proclamation.  The 
attestation  is  to  the  fact  that  the  governor  signed  the  certificate.  It 
is  not  an  assertion  that  the  certificate  is  true.  The  secretary  of  state 
of  Oregon  has  never  certified  that  Crouin  was  an  elector,  or  that  any 
persons  were  other  than  Odell,  Cartwright,  and  Watts. 

Even  where  the  law  of  the  State  directs  the  governor  to  give  to 
electors  certificates  of  their  election,  as  the  law  of  Florida  does,  I 
have  never  contended,  and  no  one  has  contended,  that  the  certificate 
is  conclusive.  I  said  distinctly,  more  than  once,  when  remarking 
upon  the  Florida  case,  the  governor's  certificate  is  not  unimpeach 
able.  It  may  be  shown  to  be  untrue,  and  it  is  so  shown  when  it  is 
proved  to  be  different  from  the  conclusions  of  the  State  canvassing 
authority  or  board.  I  say  so  now.  Unless  the  decisions  of  all  courts 
are  to  be  disregarded,  the  result  of  an  election  for  electors  is  that  as 
certained  and  determined  by  the  State  canvassing  board  or  officer 
designated  by  law  for  that  duty.  That  is  what  we  held  in  both  the 
Florida  and  Louisiana  cases,  and  that  I  hold  now.  But  if  such  were 
not  the  law,  an  unauthorized  certificate  of  the  governor  can  be  evi 
dence  of  no  fact  asserted  in  it.  * 

A  few  words  in  regard  totheineligibility  of  Watts.  I  believe  that 
neither  this  Commission  nor  Congress  has  any  power  under  the  Con 
stitution  to  judge  of  the  qualifications  of  a  State  elector,  no  more  than 
we  have  to  judge  of  the  State  election  and  returns.  Ineligibility  is  a 
disqualification.  But  I  will  not  discuss  the  question  of  our  power,  I 
have  sufficiently  discussed  it  heretofore.  If  it  be  conceded  that  Watts 
was  ineligible  on  the  7th  of  November,  the  day  of  the  election,  his 
disqualification  for  appointment  ceased  on  the  14th  of  that  mouth, 
and  there  was  nothing  in  the  way  of  his  appointment  on  the  6th  of 
December.  Concede,  for  the  sake  of  the  argument,  he  was  ineligible  on 
the  7th  of  November,  aud,  therefore,  was  not  elected,  though  he  re 
ceived  a  higher  number  of  votes  than  any  competitor,  then  there  were 
two  chosen,  and  the  college  consisting  of  three  was  not  full.  One 
elector  was  wanting.  There  was  a  vacancy,  and  that  vacancy  was 
filled  on  December  G,  by  the  action  of  the  two  electors  who  were 
chosen,  who  then  appointed  Watts  to  fill  it.  Our  friends,  however, 
whose  opinions  do  not  concur  with  mine,  earnestly  insist  that  the  de 
ficiency  in  the  college  having  been  caused  by  a  failure  to  elect  more 
than  the  two  electors,  there  was  no  vacancy  within  the  meaning  of 
the  law,  which  the  two  electors  could  fill.  A  vacancy,  they  say,  can 
only  exist  when  the  office  has  had  an  incumbent.  Rather  technical, 
I  think !  The  statute  of  Oregon  declares  that  if,  at  the  hour  of  twelve 
o'clock  at  noon  on  the  first  Wednesday  of  December  after  their  elec 
tion,  "  there  shall  be  any  vacancy  in  the  office  of  an  elector,  occasioned 
by  death,  refusal  to  act,  neglect  to  attend,  or  otherwise,  the  electors 
present  shall  immediately  proceed  to  fill,  by  viva  voce  and  plurality 
of  votes,  such  vacancy  in  the  electoral  college,"  and  when  all  the 
electors  shall  appear,  or  the  vacancies,  if  any,  shall  have  been  filled, 
as  above  provided,  such  electors  shall  proceed  to  perform  the  duties 
required  of  them  by  the  Constitution  aud  laws  of  the  United  States. 
The  language  is  very  broad— as  comprehensive  as  possible.  It  is  not 
only  vacancies  occasioned  in  specified  ways  that  may  be  filled,  but 
vacancies  occasioned  otherwise.  The  statute  is  plainly  remedial,  and 
the  mischief  or  evil  it  was  intended  to  remedy  was  a  college  of  elect 
ors  only  partly  filled  when  the  time  for  voting  came.  If  there  was  a 
vacancy  then,  if  there  were  not  in  being  the  entire  number  of  electors 
to  which  the  State  was  entitled,  the  State  would  lose  her  just  share 
in  the  choice  of  a  President  and  Vice-Presideut.  This  was  the  mis 
chief  the  statute  proposed  to  remedy,  and  the  mischief  was  precisely 
the  same,  whether  the  incompleteness  of  the  college  was  caused  by 
the  death,  refusal  to  act,  or  neglect  to  attend  of  one  of  the  persons 
elected,  or  whether  it  was  caused  by  a  failure  to  elect  a  sufficient 
number  of  electors. 

Now,  if  there  be  any  rule  of  construction  which  no  one  doubts,  it 
is  that  remedial  statutes  are  to  be  liberally  construed,  and  that  such 
effect  is  to  be  given  to  them,  if  possible,  as  to  remove  the  whole  mis 
chief  they  are  intended  to  cure.  In  view  of  this  principle,  I  cannot 
see  how  lib  can  be  maintained  that  Odell  and  Cartwright  were  not  au 
thorized  to  appoint  a  third  elector,  as  they  did,  and  thus  complete  the 
college.  The  argument  that  they  had  no  such  right  is  based,  if  it  has 
any  basis,  upon  the  most  refined  technicality.  Together  with  those 
who  act  with  me,  I  have  been  charged  with  standing  on  technicalities 
to  defeat  justice.  If  to  stand  on  the  Constitution  of  the  United  States 
and  the  decisions  of  all  the  courts,  as  I  have  done,  is  to  be  technical, 
what  is  to  be  said  of  the  argument  that  under  the  Oregon  statute  two 
admittedly  chosen  electors  had  no  right  to  fill  the  electoral  college,  if 
its  incompleteness  was  occasioned  by  a  failure  of  the  people  to  elect 
more  than  two  electors  ? 

Mr.  President,  such  are  my  opinions  respecting  the  principal  ques 
tions  in  this  case.  They  lead  inevitably  to  the  conclusion  that,  under 
the  law  of  Oregon,  Ode'll,  Cartwright,  and  Watts  were  the  duly  ap 
pointed  electors  of  the  State,  and  that  the  votes  cast  by  them  should 
be  counted. 


Remarks  of  Mr.  Commissioner  miller. 

FLORIDA. 

The  Commission  having  under  consideration  ihe  electoral  vote  of  Florida — 

Mr.  Commissioner  MILLER  said: 

Mr.  President,  as  all  the  members  of  the  Commission  have  spoken 
to  the  matter  before  us  but  you,  my  brother  BRADLEY,  and  myself,  aud 
as  I  am  aware  that  before  the  vote  is  taken  both  you  and  he  desire  to 
give  expression  to  your  views,  it  seems  appropriate  and  it  is  probably 
expected  that  I  shall  do  the  same. 

The  only  question  which  I  consider  to  be  properly  before  the  Com 
mission  is  the  one  propounded  by  us  to  counsel,  namely,  whether  any 
otherevidence  can  be  received  and  considered  by  the  Commission  than 
that  which  was  submitted  by  the  President  of  the  Senate  to  the  two 
Houses  of  Congress,  being  the  different  certificates  aud  the  papers 
accompanying  the  same.  The  other  members  of  the  Commission  who 
have  taken  part  in  this  dicussion  have  not  limited  themselves  to  this, 
but  have  inquired  into  the  effect  of  the  action  of  the  State  courts  of 
Florida,  aud  of  her  Legislature,  and  the  certificates  of  Attorney-General 
Cocke,  aud  Governor  Drew,  as  found  in  those  papers;  and  in  consid 
ering  the  effect  of  the  certificate  of  Governor  Stearns  and  the  action 
of  the  returning  board  of  the  State,  in  excluding  other  evidence  of 
the  appointment  of  electors,  it  was  not  easy  to  keep  wholly  out  of 
view  the  papers  I  have  mentioned. 

I  shall  therefore  give  them  a  few  moments'  consideration.  But  as 
they,  with  another  matter  much  insisted  on,  lie  outside  of  the  general 
and  what  I  believe  to  bo  the  more  legitimate  course  of  reasoning,  on 
which  the  true  solution  of  the  question  must  rest,  I  will  dispose  of 
them  first. 

It  is  strongly  urged  upon  ns  that  a  large  pile  of  papers,  a  half 
bushel  perhaps  in  quantity,  of  the  contents  of  which  both  this  Com 
mission  and  the  two  Houses  of  Congress  are  profoundly  ignorant, 
have  become  legitimate  evidence  and  must  necessarily  be  considered 
by  us,  because  they  are  in  a  very  general  way  referred  to  in  the 
paper  filed  by  certain  members  of  the  two  Houses  as  their  objections 
to  what  has  been  familiarly  referred  to  as  Certificate  No.  1,  by  which 
I  understand  the  certificate  of  Governor  Stearns  that  the  electors 
who  have  since  cast  their  votes  for  Hayes  and  Wheeler  were  the  duly 
appointed  electors  for  the  State  of  Florida.  This  proposition  has 
been  defended  by  Mr.  Commissioner  HUNTON  on  the  ground  that  by 
analogy  to  the  exhibits  accompanying  a  bill  or  answer  in  chancery, 
these  being  exhibits  to  the  objections  which  the  statute  requires  to 
be  made  in  writing,  become  part  of  those  objections.  But  if  the 
principle  were  sound  the  analogy  wholly  fails,  because  every  exhibit 
referred  to  in  a  bill  in  chancery  must  not  only  have  its  pertinency 
shown  by  describing  its  nature  or  character  in  the  bill,  but  the  ex 
hibit  itself  must  be  identified  by  a  mark  or  reference,  as  a  number,  a 
letter,  or  some  other  mode  by  which  that  identity  is  clearly  estab 
lished.  Nothing  of  the  kind  is  c'one  here.  No  statement  of  the 
character,  or  nature,  or  source  of  a  single  paper,  out  of  perhaps  a 
hundred,  is  made.  No  reference  to  anything  by  which  these  papers 
can  be  identified.  Nothing  to  hinder  alterations  or  substitutions 
among  them.  They  may  be  exparte  affidavits  taken  in  the  morasses 
of  Florida,  the  slums  of  New  York,  or  the  private  office  of  retained 
counsel  in  this  city.  It  would  be  very  strange  indeed  if  the  act  of 
Congress,  under  which  we  sit,  intended  to  furnish  in  this  manner  the 
materials  on  which  our  decisions  must  be  founded.  Such,  however, 
is  the  argument  of  Mr.  Commissioner  TIIURMAN,  who  construing,  as 
I  venture  to  say  erroneously,  an  important  phrase  in  that  act,  insists 
that  all  the  papers  accompanying  the  objections  must  be  considered  by 
us.  The  language  he  relies  on  is  this : 

When  all  snch  objections  so  made  to  any  certificate,  vote,  or  paper  from  a  State 
shall  have  been  received  and  read- 
In  the  joint  meeting  of  the  two  Houses — 

all  such  certificates,  votes,  and  papers  so  objected  to,  and  all  papers  accompany 
ing  the  same,  together  with  said  objections,  shall  be  forthwith  submitted  to  said 
Commission,  which  shall  proceed  to  consider  the  same,  &o. 

The  good  sense  of  the  framers  of  this  bill  is  vindicated  by  the  criti 
cal  accuracy  with  which  they  have  clearly  expressed  that  the  certifi 
cates,  votes,  and  papers  so  objected  to,  aud  all  papers  accompanying 
them,  are  to  be  considered,  and  the  objections  also,  the  latter  only  on 
their  merits,  with  110  directions  to  consider  any  papers  filed  with  them, 
even  if  fully  described  aud  identified.  This  seems  so  clear  to  me  that 
I  shall  pass  from  the  consideration  of  the  point  without  further  re 
mark. 

Another  matter  much  relied  on  by  counsel  and  urged  again  in  the 
Commission  is  the  action  of  the  courts  of  Florida  in  two  cases  which 
are  supposed  to  affect  the  right  of  the  electors  mentioned  in  the  first 
certificate. 

The  first  of  these  was  a  suit  between  Stearns  and  Drew,  rival  candi 
dates  for  the  officer  of  governor  at  the  same  general  election  in  which 
the  electors  are  said  to  have  been  chosen.  It  is  not  claimed  that 
this  suit  of  itself  determined  who  were  the  lawfully  appointed  elect 
ors,  but  that  the  opinion  of  the  supreme  court  of  the  State  settles 
principles  of  law,  binding  on  us,  which  show  that  the  action  of  the 
returning  boardis  not  conclusive.  I  am  not  satisfied  that  the  prin 
ciples  laid  do  wu  in  that  opinion,  i  f  applied  to  the  action  of  that  board 
in  the  case  of  the  electors,  would  have  the  effect  claimed  for  it  now. 


356 


ELECTORAL  COMMISSION. 


But  whether  this  be  so  or  not,  I  am  very  clear  that  the  opinion  of  the 
court  in  that  case  is  not  of  the  class  which  binds  this  body  in  con 
struing  the  statute  of  Florida  on  that  subject.  It  is  the  well-settled 
doctrine  of  the  Supreme  Court  in  case  of  writs  of  error  to  the  decis 
ion  of  the  State  courts,  that  where  the  matter  to  bo  considered  is  the 
constitutionality  or  validity  of  a  State  law,  the  Supreme  Court  must 
for  itself  determine  that  question,  and  that  to  follow  implicitly  the 
State  decision  on  the  construction  of  the  statute  is  to  abdicate  the 
power  and  refuse  to  perform  the  duty  devolved  on  it  in  that  case. 
(Bridge  Proprietors  vs.  Hobokeu  Company,  2  Wallace,  116.)  Such  is 
precisely  the  case  here.  If  Congress  or  the  two  Houses,  whose  power, 
neither  more  nor  less,  we  exercise  to-day,  had  a  right  to  determine  on 
the  validity  and  effect  of  the  certificate  of  the  returning  board  to 
these  electors,  it  was  a  power  called  into  existence  before  any  action 
oi:  the  State  court  of  Florida,  and  could  not  be  forestalled,  nor  could 
the  principles  on  which  it  must  be  decided  be  concluded  by  any  an 
ticipatory  action  of  the  courts  of  Florida,  whether  had  with  that 
view  or  not.  The  effect  of  that  opinion  ou  our  action  must  therefore 
bo  limited  to  the  force  of  its  reasoning  and  the  weight  of  character 
which  the  court  brings  to  its  support. 

I  confess  that  if  the  opinion  is  fairly  construed  to  hold  that  the 
returning  board  of  elections  of  that  State  had  no  other  than  the  mere 
m  iiiisterial  function  of  adding  up  and  comparing  the  columns  of  votes, 
and  could  exercise  no  judgment  ou  questions  of  fraud  or  other  mat 
ters,  and  was  wholly  without  power  in  reviewing  and  rejecting  the 
poll  of  any  voting-precinct,  it  is  so  much  at  variance  with  the  lan 
guage  and  spirit  of  the  statute  it  was  construing  as  to  have  little 
weight  with  me  in  forming  a  judgment  on  the  same  subject. 

The  other  case  in  the  State  court  was  a  proceeding  in  quo  warranto, 
brought  in  person  by  those  whom  I  shall,  to  avoid  circumlocution, 
call  theTildeu  electors  against  the  Hayes  electors,  in  the  local  circuit 
court  of  Leon  County,  to  test  the  title  to  said  office. 

Of  this  suit  no  record  is  before  us.  We  know  nothing  of  it  except 
a  very  short  statement  in  a  certificate  given  by  Governor  Drew  that 
such  a  suit  had  been  instituted  in  the  circuit  court  of  the  State  for 
the  second  judicial  district,  and  resulted  in  a  judgment  in  favor  of 
the  relators.  It  is  not  stated  when  the  suit  was  commenced,  or  when 
the  judgment  was  rendered.  It  seems  to  have  been  conceded  in  ar 
gument  that  service  of  the  writ  or  notice  of  the  suit  was  made  on  the 
6th  day  of  December,  the  day  on  which  by  act  of  Congress  the  elect 
ors  everywhere  must  cast  their  vote,  and  the  day  on  which  the  elect 
ors  declared  by  the  returning  board  and  by  Governor  Stearns — the 
governor  then  in  power  by  undisputed  right — did  cast  the  electoral 
vote  of  the  State  of  Florida ;  but  whether  the  notice  was  before  or 
after  they  had  voted  is  not  shown.  Can  the  right  to  cast  one  of  the 
electoral  votes  of  a  State  for  President  be  thus  tried  in  a  court  of  law  ? 
It  is  not  asserted  that  any  such  right  is  found  in  any  act  of  Congress 
or  in  any  statute  of  Florida. 

The  single  function  of  an  elector  is  to  give  one  of  the  votes  to  which 
the  State  is  entitled  for  President  and  Vice-President.  His  powers 
begin  there  and  end  there.  He  has  no  permanent  office  with  continuing 
functions  in  which  he  may  repeatedly  perform  acts  of  authority  unless 
prevented  by  the  courts.  There  is,  therefore,  no  necessity  for  the 
application  of  such  a  writ.  An  injunction  would  be  much  more  ap 
propriate  if  any  judicial  remedy  existed  at  all,  for  by  that  writ  the 
single  act  which  he  can  perform  might  be  prohibited.  If  a  county 
which  had  taken  stock  in  a  railroad  company  should  attempt  to  ap 
point  an  agent  to  cast  its  vote  in  the  election  of  directors,  would  a 
quo  warranlo  lie  to  test  his  authority  ?  Yet  he  is  exercising  a  function 
precisely  similar  to  an  elector,  except  that  one  represents  a  State  and 
the  other  a  county. 

It  is  perhaps  not  the  most  satisfactory  test  of  the  soundness  of  a 
principle  to  look  to  its  consequences,  but  where  the  principle  rests  on 
no  statute,  but  on  some  general  common-law  doctrine,  this  is  usually 
a  very  fair  test  of  its  correctness.  If  the  doctrine  be  true  of  Florida, 
it  must  be  equally  so  of  other  States.  In  New  York  there  are  thirty- 
two  judges  of  the  supreme  court  of  that  State,  a  court  which  exer 
cises  original  jurisdiction  all  over  the  State.  Under  the  principle 
asserted  any  one  of  these  thirty-two  judges  may  issue  his  writ  of  quo 
warranto,  or  of  injunction,  or  other  appropriate  writ,  the  day  before 
the  votes  must  by  law  be  cast  for  President  and  Vice-President,  and 
by  this  exercise  of  his  power  prevent  the  35  votes  of  the  State  from 
being  given  or  counted  in  the  election.  And  if  you  say  it  is  only  the 
final  judgment  which  is  effectual,  that  may  be  delayed  until  after 
the  4th  of  March,  when  it  will  be  of  no  avail  to  give  any  judgment, 
whether  it  be  right  or  whether  it  bo  wrong.  It  is  safe  to  say  that  no 
such  power  exists  in  any  man  or  in  any  tribunal  unless  it  is  placed 
there  by  the  expressed  will  of  the  law-making  power. 

The  Constitution  declares  that  no  person  holding  an  office  of  trust 
or  profit  under  the  United  States  shall  be  appointed  an  elector,  and 
the  objectors  to  Certificate  No.  1  propose  to  give  evidence  to  show  that 
Mr.  Humphreys,  one  of  the  electors  named  in  that  certificate,  was  at 
the  date  of  his  election  holding  the  office  of  shipping  commissioner 
under  the  appointment  of  the  circuit  court  of  the  United  States  for 
the  district  of  Florida.  There  are  two  reasons  why  I  do  not  think 
such  evidence  admissible.  The  first  is  that  the  inquiry  comes  too 
late,  because  Mr.  Humphreys,  acting  under  the  credentials  which  the 
law  prescribes  as  his  authority,  has  already  cast  his  vote  for  President 
and  Vice-President.  That  vote  being  a  fact  accomplished,  cannot  be 
annulled  by  any  subsequent  proceeding  to  question  his  eligibility. 


The  second  is.  that  like  many  other  provisions  of  the  Constitution, 
it  is  not  self-executing ;  and  as  no  means  of  enforcing  it  have  been 
provided  it  remains  ineffectual,  save  as  its  directions  shall  be  observed 
by  those  who  appoint  the  electors.  In  this  regard  the  provision  of 
the  Constitution  in  question  is  not  singular.  A  very  large  residuum 
of  the  powers  conferred  by  the  Federal  Constitution  has  never  been 
called  into  action  by  appropriate  legislation.  As  regards  the  grant 
of  judicial  power  by  that  instrument,  it  has  been  the  frequent  subject 
of  comment  that  a  large — perhaps  until  very  recently  the  largest — part 
of  this  power  has  never  been  called  into  exercise,  because  Congress 
has  not  conferred  the  necessary  jurisdiction  on  any  court  or  other 
judicial  tribunal.  It  was  early  decided  that  the  provision  for  the 
rendition  of  persons  held  to  service  in  one  State  escaping  into  another 
was  inoperative  because  no  statute  to  enforce  it  had  been  enacted. 
And  after  the  fugitive-slave  law  had  been  supposed  to  provide  ample 
means  to  secure  the  object  of  the  constitutional  provision,  it  was  de 
cided  in  the  case  of  Kentucky  vs.  Dennison,  governor  of  Ohio,  24 
Howard,  6(5,  Chief-Justice  Taney  delivering  the  opinion  of  the  court, 
that  while  the  party  might  arrest  his  slave  or  recover  damages  for 
his  detention  or  for 'aiding  in  his  escape  or  concealment,  the  duty  of 
the  governor  of  the  State  to  cause  his  rendition  was  not  capable  of 
enforcement  by  any  judicial  proceeding  and  had  only  the  sanction  of 
a  moral  and  political  obligation. 

In  the  case  before  us  neither  the  Constitution  of  the  United  States 
nor  any  act  of  Congress  nor  any  statute  of  the  State  of  Florida  has 
created  a  tribunal  or  provided  a  mode  of  procedure  by  which  the 
question  of  the  eligibility  of  an  elector  may  be  inquired  into  and  de 
termined. 

Having  disposed  of  these  extraneous  matters,  I  now  proceed  to  the 
consideration  of  others  which,  from  their  essential  nature,  are,  in  my 
judgment,  conclusive  of  the  questions  before  us. 

The  business  of  electing  a  President  and  Vice-President,  as  it  is  laid 
down  in  the  Constitution,  may  bo  divided  into  three  distinct  acts  or 
stages  of  the  grand  drama.  They  are  the  appointment  of  electors, 
the  voting  of  those  electors,  and  the  counting  of  their  votes.  The 
first  of  these  acts  or  functions  belongs  by  the  Constitution  wholly  to 
the  States,  "who  shall  appoint  in  such  manner  as  the  Legislature 
thereof  may  direct"  the  number  of  electors  to  which  the  State  is  en 
titled.  The  casting  of  this  vote  must  be  by  the  persons  so  appointed, 
and  can  be  cast  by  no  one  else. 

These  propositions  are  very  clear ;  but  who  is  to  count  the  votes 
after  they  are  given  is  matter  of  grave  dispute,  into  which  I  do  not 
propose  to  enter.  But  the  power  of  counting  does  not  reside  with  the 
States  or  with  the  electors,  but  somewhere  within  the  domain  of 
Federal  power,  as  represented  by  the  President  of  the  Senate  and  the 
two  Houses  of  Congress.  What  we  are  mainly  concerned  to  ascertain 
just  now  is  the  proper  evidence  to  be  furnished  of  the  appointment  of 
electors  by  the  appointing  power,  the  nature  and  effect  of  that  evi 
dence,  and  the  nature  and  extent  of  the  inquiry  which  the  counting 
power  can  make  into  the  fact  of  appointment. 

It  is  manifestly  the  duty,  and  therefore  the  right  of  the  State, 
which  is  the  appointing  power,  to  decide  upon  the  means  by  which 
the  act  of  appointment  shall  be  authenticated  and  certified  to  the 
counting  power  and  to  the  electors  who  are  to  act  on  that  authority. 
To  this  proposition  I  have  heard  no  dissent  from  any  quarter.  This 
evidence  of  appointment  must  in  its  nature  vary  according  to  the 
manner  in  which  the  electors  are  appointed.  If  elected  by  the  Leg 
islature,  as  they  may  be,  an  appropriate  mode  would  be  the  signa 
tures  of  the  presiding  officers  of  the  two  houses  to  the  fact  of  such  ap 
pointment  or  a  certified  copy  of  the  act  by  which  they  were  elected. 
If  appointed  by  the  governor,  his  official  certificate  with  the  seal  of 
the  State  would  be  an  appropriate  mode.  If  elected  by  popular  suf 
frage,  that  election  should  be  ascertained  and  authenticated  in  the 
mode  which  the  law  of  the  State  prescribes  for  that  purpose. 

In  the  case  before  us  they  were  elected  by  popular  suffrage,  and 
the  statute  of  Florida  prescribes  a  well-defined  mode  of  ascertaining 
the  result  of  that  election,  and  of  giving  official  expression  to  that 
resnl  t. 

By  the  fourth  section  of  the  act  of  February  27,  1872— 

The  secretary  of  state,  the  attorney-general,  and  the  comptroller  of  public  ac 
counts,  or  any  two  of  them,  together  with  any  other  memher  of  the  cabinet  who 
may  he  designated  by  them,  shall  constitute  a,  board  of  State  canvassers  for  any 
general  or  special  election  of  State  officers,  who  shall  canvass  the  returns  of  said 
election,  and  determine  ami  declare  who  shall  have  been  elected  to  any  such  office, 
or  as  such  member,  as  shown  by  such  returns.  If  any  such  return  shall  be  shown, 
or  shall  appear  to  be  so  irregular,  false,  or  fraudulent,  that  the  board  shall  be  un 
able  to  determine  the  true  vote  for  any  such  officer  or  member,  they  shall  so  certify, 
and  shall  not  include  such  return  in  their  determination  and  declaration. 

The  board  shall  make  «md  sign  a  certificate  *  *  *  and  therein  declare  the  re 
sult,  which  certificate  shall  be  recorded  in  the  office  of  the  secretary  of  state  in  a 
book  to  be  kept  for  that  purpose. 

By  another  act  the  governor  is  required  to  make  out,  sign,  and 
cause  to  be  sealed  with  the  seal  of  the  State,  and  transmit  to  each 
person  so  elected  elector  or  Representative  in  Congress,  a  certificate 
of  his  election. 

These  two  provisions  prescribe  the  manner  in  which  the  result  of 
an  election  for  electors  shall  be  "  determined  and  declared  "  and  how 
that  result  shall  bo  duly  authenticated.  When  the  canvassing  board 
herein  mentioned  has  canvassed  the  returns  of  the  election,  has  de 
termined  who  is  elected,  and  has  declared  that  fact  by  signing  the 
certificate,  which  is  to  deposited  with  the  secretary  of  state,  the  per 
son  named  in  that  certificate  is  from  that  moment  a  duly  appointed 


ELECTORAL  COMMISSION. 


257 


elector.  The  fact  of  his  appointment,  that  is,  his  election,  has  been 
ascertained  and  declared  by  the  tribunal,  and  the  only  tribunal,  to 
which  the  duty  and  power  of  so  declaring  has  been  coulided  by  law. 
I  have  already  shown  that  this  power  belonged  to  the  State  of  Flor 
ida — to  its  Legislature.  It  cannot  be  vested  in  two  independent  and 
distinct  bodies.  It  rests  with  the  State  of  Florida.  The  law  is  clear, 
perspicuous,  methodical. 

It  is  said  by  way  of  impeachment  of  this  certificate  that  the  board 
of  canvassers  exceeded  its  jurisdiction  by  rejecting  returns  which 
were  neither  irregular,  false,  nor  fraudulent;  and  that  this  can  now 
be  shown  by  proof  before  this  Commission.  But  what  is  the  j urisdlc- 
tlon  of  this  board  ?  It  is  not  merely  to  count  up  and  compare  the  re 
turns,  but  upon  all  the  facts  submitted  to  them  to  determine,  that  is, 
to  decide,  who  is  elected.  This  is  its  duty,  and  its  jurisdiction  is  com 
mensurate  with  its  duty.  If  it  mistakes  the  law,  or  does  not  prop 
erly  weigh  the  facts,  these  do  not  affect  the  jurisdiction,  or  invali 
date  the  judgment  which  it  renders. 

Jurisdiction  is  the  power  to  examine  and  decide,  to  hear  and  de 
termine,  the  subject-matter  submitted  to  the  tribunal  by  which  the 
jurisdiction  is  to  be  exercised.  When  jurisdiction  is  given  over  the 
whole  subject,  as  in  this  case,  to  decide  who  are  elected,  it  cannot  be 
limited  to  that  which  is  directory  in  the  mode  of  proceeding.  It  may 
not  follow  that  mode,  yet  its  decisions  be  valid.  Its  decisions  may  bo 
erroneous,  but  it  is  nevertheless  the  decision  of  the  only  tribunal  hav 
ing  jurisdiction,  and  it  must  be  conclusive.  I  say  it  must  be  conclu 
sive,  because  there  is  no  other  tribunal  which  is  by  law  authorized  to 
review  this  decision  or  to  correct  its  errors  if  any  exist.  I  shall  pres 
ently  consider  the  claim  here  set  up  that  this  Commission  in  the  exer 
cise  of  powers  belonging  to  the  two  Houses  of  Congress  can  do  this, 
and  I  lay  out  of  view  the  right  of  the  State  to  oust  an  officer  declared 
by  this  board  to  be  elected,  by  a  writ  of  quo  warranto,  because  that 
writ  by  its  very  nature  admits  that  the  party  against  whom  it  is  di 
rected  is  in  office,  and  is  exercising  its  functions,  and  demands  of  him 
by  what  authority  he  does  so. 

In  all  governments  where  rights  are  secured  by  law,  it  has  been 
found  necessary  where  those  rights,  whether  public  or  private,  de 
pend  upon  the  existence  of  certain  facts,  to  appoint  an  officer,  a  com 
mission,  a  tribunal,  by  whatever  name  it  may  be  called,  to  ascertain 
these  facts  and  declare  the  rights  which  they  give.  This  is  a  neces 
sity  of  civil  society,  and  on  it  courts  of  justice  are  founded.  It  is 
also  a  principle  necessary  to  the  existence  of  law  and  order  and  to 
the  security  of  these  rights  that  the  decision  of  this  tribunal  should 
be  respected,  whether  those  rights  be  public  or  private.  And  except 
where  there  is  a  provision  in  the  law  for  an  appeal  from  such  de 
cision,  or  a  review  of  it  in  some  recognized  legal  mode,  it  mustl>e  con 
clusive.  As  regards  courts  of  justice,  this  principle  is  everywhere 
recognized  and  is  acted  on  every  day.  There  is  no  reason  why  it 
should  not  be  equally  applicable  to  all  other  tribunals  acting  within 
the  scope  of  their  authority,  and  it  is  so.  As  illustrations  I  will  cite  a 
few  instances  from  the  highest  judicial  authority  in  this  country  with 
whose  decisions  I  am  familiar.  We  have  had  in  that  court  a  vast 
number  of  suits  founded  on  bonds  issued  by  counties,  cities,  towns, 
and  townships,  in  which  the  defense  was  that  the  bonds  were  issued 
without  authority  of  law,  and  by  frauds  practiced  by  the  officers  who 
issued  them.  In  most  of  these  cases  the  authority  to  issue  the  bonds 
could  only  be  given  by  the  vote  of  the  majority  of  the  citizens  of  the 
municipality.  In  the  case  of  Knox  County  vs.  Aspiuwall,  21  Wallace, 
539,  when  this  question  first  came  up  the  court  decided  that  inasmuch 
as  the  commissioners  who  issued  the  bonds  were  also  authorized  to 
ascertain  and  determine  whether  there  had  been  such  a  vote,  and 
whether  the  election  had  been  lawfully  held,  their  action  in  issuing 
the  bonds  was  conclusive  on  both  these  questions,  and  could  not  be 
afterward  questioned  in  any  action  to  recover  the  amount  of  the 
bonds  against  the  counties. 

Perhaps  no  decision  has  been  more  controverted  than  this.  At  every 
term  of  the  court,  for  now  nearly  twenty  years,  similar  cases  have 
come  up  and  been  so  decided  from  the  date  of  that  case  to  the  case 
of  Coloma  vs.  Eaves,  92  Supreme  Court  R.,  484,  at  the  recent  term  of  the 
court ;  and  by  those  decisions  millions  of  dollars  of  debt  have  been 
fastened  upon  the  citizens  of  these  municipalities  to  the  ruin  of  many 
of  them,  which  they  were  denied  the  privilege  of  showing  were 
created  without  authority  and  by  fraud  and  chicanery.  These  decis 
ions  are  all  based  upon  the  principle  that  the  decision  of  the  tribunal 
created  for  that  purpose,  on  the  existence  of  the  facts  necessary  to 
make  valid  the  issue  of  bonds,  is  final  and  conclusive  as  to  the  exist 
ence  of  these  facts. 

Again,  in  the  administration  of  t"ho  system  of  public  lands  of  the 
United  States  questions  of  conflicting  rights  are  perpetually  arising 
which  by  the  acts  of  Congress  are  to  be  decided  by  the  officers  of  the 
Land  Department  of  the  Government.  Many  applications  have  been 
made  to  the  courts  to  control  the  action  of  these  officers  by  writs  of 
mandamus  to  compel  them  to  do  something,  or  of  injunction  to  re 
strain  them;  but  the  Supreme  Court  has  uniformly  held  that  in  the 
performance  of  their  functions,  which  required  the  exercise  of  judg 
ment  or  discretion,  they  were  beyond  the  control  of  the  courts,  be 
cause  to  them,  and  to  them  alone,  had  the  law  confided  the  exercise 
of  that  judgment,  and  except  as  by  appeal  from  one  officer  of  that 
department  to  another,  no  right  of  reviewing  that  judgment  had  been 
provided.  (Gaines  vs.  Thompson,  7  Wallace,  347 ;  Litchfield  vs.  Regis 


ter  and  Receiver,  9  Wallace,  575 ;  Secretary  vs.  McGarrahan,  9  Wal 
lace,  248.) 

The  same  principle  has  been  repeatedly  asserted  when  contests  for 
titles  to  lauds  derived  from  the  Government  have  arisen  after  the  ac 
tion  of  these  officers  has  been  ended,  and  the  title  passed  from  the 
Government  to  a  private  claimant.  A  very  recent  case  of  that  kind 
instructive  in  the  matter  before  us  is  that  of  French  vs.  Fyail>  de 
cided  at  the  present  term  of  the  Supremo  Court. 

A  contest  for  a  quarter  section  of  laud  in  Missouri  arose  between  a 
party  claiming  title  under  the  swamp-laud  grant  of  1850  and  another 
who  claimed  under  a  grant  to  railroads  of  1852.  Both  parties  had 
regular  evidence  of  title,  each  under  his  own  grant,  and  as  the  swamp 
laud  grant  was  the  elder  it  must,  if  valid,  prevail.  To  show  that  it 
was  not  valid  the  plaintiff  offered  to  prove  by  parol  evidence  that  the 
laud  was  not  in  fact  and  never  had  been  "  overflowed  and  swamp 
laud,  made  thereby  unfit  for  cultivation,"  which  is  the  description  of 
the  lauds  granted  by  the  act  of  1850.  But  the  circuit  court  first,  and 
the  Supreme  Court  on  writ  of  error,  held  that  this  could  not  be  done. 
The  swamp-land  act  made  it  the  duty  of  the  Secretary  of  the  Interior 
to  make  out  accurate  lists  of  these  swamp-lauds  and  certify  them  to 
the  States  and  issue  patents  therefor  when  required,  and  the  Supremo 
Court  held  that  his  action  in  so  doing  was  final  and  conclusive  and 
could  not  be  impeached  by  parol  testimony.  And  this  it  bounds,  as 
it  says,  on  "  the  general  doctrine  that  where  the  law  has  confided  to  a 
special  tribunal  the  authority  to  hear  and  determine  certain  matters 
arising  in  the  course  of  its  duties,  the  decision  of  that  tribunal  within 
the  scope  of  its  authority  is  conclusive  upon  all  others,"  and  it  cites 
the  previous  case,  Johnson  vs.  Towsley,  13  Wallace,  72,  from  which  the 
extract  is  taken.  That  the  same  principle  applies  to  affairs  of  more 
public  character  is  shown  by  the  case  of  Luther  vs.  Bordeu,  7  How 
ard,  1 ;  and  of  the  Commonwealth  of  Virginia  vs.  West  Virginia,  11 
Wallace,  39. 

In  the  former  case  where  the  issue  in  an  action  of  trespass  depended 
upon  which  was  the  true  government  of  the  State  of  Rhode  Island, 
that  sot  up  and  known  as  the  Dorr  government,  which  was  alleged 
as  in  the  case  before  us  to  have  the  support  of  a  majority  of  the  popu 
lar  vote,  or  the  ancient  government  which  was  resisting  overthrow 
by  the  Dorr  movement,  this  court  shut  its  eyes  resolutely  to  any 
inquiry  into  the  facts  on  which  either  government  claimed  to  be 
the  right  one,  and  said  that  the  Constitution  of  the  United  States 
had  confided  to  the  political  department  of  the  Government  the  right 
to  determine  that  question,  and  that  though  the  private  rights  before 
the  court  were  judicial  in  character  the  court  was  bound  by  the  ac 
tion  of  President  Van  Buren,  who  in  issuing  a  proclamation  requiring 
the  supporters  of  the  so-called  Dorr  government  to  disperse  had 
treated  them  as  insurgents  and  had  recognized  the  ancient  govern 
ment  as  the  true  one.  Behind  this  action  the  court  could  not  inquire, 
but  must  accept  it  as  decisive  of  the  question. 

In  the  latter  case,  in  the  process  of  constructing  the  State  of  West 
Virginia  out  of  certain  counties  of  the  Common  weal  tn  of  Virginia, 
it  had  been  determined  to  refer  the  questiou  of  which  State  should 
include  the  counties  of  Berkeley  and  Jefferson  to  the  popular  vote 
of  these  counties.  By  a  statute  of  the  Commonwealth  the  governor 
of  that  State  was  authorized  to  call  such  an  election  by  proclama 
tion  to  ascertain  the  result,  and,  if  carried,  to  certify  the  same  to  the 
governor  of  West  Virginia,  whereupon  those  counties  became  part 
of  the  new  State.  All  this  was  done.  But  a  few  years  after  tho 
Commonwealth  filed  her  bill  in  chancery  in  the  Supreme  Court  of  the 
United  States  against  West  Virginia,  claiming  to  recover  back  juris 
diction  of  those  counties  upon  the  grounds,  among  others,  that  no 
fair  vote  had  been  taken,  that  the  majority  was  the  other  way,  and 
that  the  governor  was  imposed  upon  by  false  and  fraudulent  returns. 
The  case  was  heard  on  demurrer,  and  on  this  subject  the  court  says  : 

We  are  of  opinion  that  the  action  of  the  governor  is  conclusive  of  the  vote  as 
between  the  States  of  Virginia  anil  West  Virginia,  lie  was  in  legal  effect  tho 
State  of  Virginia  in  this  matter.  In  addition  to  his  position  of  executive  head  of 
the  State,  the  Legislature  had  delegated  to  him  all  its  own  power  in  the  premises. 
It  vested  him  with  large  control  as  to  the  time  of  taking  the  vote,  and  it  made  liin 
opinion  of  tho  result  the  condition  of  final  action. 

This  language  is  eminently  applicable  to  the  case  before  tis.  Tho 
Legislature  of  Florida  has  vested  in  her  board  of  canvassers  the  au 
thority  to  determine  who  are  elected  electors.  It  has  conferred  no 
power  on  any  tribunal  to  revise  that  decision.  Tho  board  in  this  re 
spect  represents  tho  State.  Its  judgment  is  her  judgment  and  its 
official  certificate  is  her  authorized  expression  of  what  she  has  done 
in  the  matter,  and  it  is  conclusive. 

Mr.  President,  I  might  well  rest  here,  but  as  I  have  said  that  I 
would  consider  the  question  of  the  right  of  this  Coinmission  exercising 
the  power  of  tho  two  Houses  of  Congress  to  review  or  inquire  into 
the  truth  of  the  certificate  of  the  board  of  canvassers,  I  will  say  a 
few  words  on  that  point.  It  has,  however,  been  so  clearly  presented 
by  my  brother  STRONG,  and  I  concur  so  entirely  in  what  he  has  said, 
that  it  is  hardly  necessary  that  I  should  do  so. 

Conceding  for  the  present,  for  that  is  the  theory  on  which  is  framed 
the  bill  creating  this  Commission,  that  by  tho  Constitution  to  tho  two 
Houses  of  Congress  has  been  confided  the  duty  of  counting  tho  votes 
of  the  presidential  electors  and  declaring  the  result,  it  is  di  fficult  to  see 
what  right  this  duty  of  counting  gives  those  bodies  to  inquire  into  tho 
means  by  which  the  electors  whose  votes  they  are  to  count  obtained 


17 


ELECTORAL  COMMISSION. 


their  appointment.  The  whole  basis  on  which  this  right  of  the  two 
Houses  to  inquire  into  the  conduct  or  misconduct,  the  fraudulent  or 
honest  character  of  the  vote,  the  mistakes,  errors,  or  corruption  of  the 
judges  of  election  at  every  polling-place  iu  an  entire  State  is  this 
short  and  single  sentence  of  the  Constitution  : 

The  President  of  the  Senate  shall,  in  the  presence  of  the  Senate  and  House  of 
^Representatives,  open  all  the  certificates  and  the  votes  shall  then  bo  counted. 

The  votes  hero  mentioned  are  the  votes  of  the  electors  of  President 
and  Vice-President,  and  not  the  votes  hy  which  these  electors  were 
appointed,  and  the  certificates  are  the  evidence  of  their  appointment. 

I  have  endeavored  to  show,  and  I  think  successfully,  that  this  lat 
ter  counting  belonged  solely  to  the  State  authorities  as  well  as  the 
mode  authenticating  the  result. 

It  is  not  assorted  by  any  one  that  express  power  to  make  this  in 
quiry  is  conferred  on  the  two  Houses  by  the  language  quoted,  or  by 
any  other.  The  argument  is  founded  on  two  implications,  both  of 
which  are  very  remote  and  very  unnecessary. 

The  first  of  these  and  the  qne  which  I  think  is  mainly  relied  on  is, 
that  in  order  to  count  the  votes  it  is  necessary  to  know  who  are  the 
electors.  Before  you  can  make  a  correct  count  of  the  votes  for  Presi 
dent  you  must  ascertain  who  are  authorized  to  vote  for  President. 
Undoubtedly  the  reasoning  thus  far  is  sound.  But  since  the  Consti 
tution  says  that  those  who  can  cast  such  votes  are  those  who  are 
appointed  by  the  State  iu  such  manner  as  the  Legislature  thereof 
shall  direct,  it  amounts  to  nothing  more  than  ascertaining  who  are 
appointed  electors. 

Congress  has  nothing  to  do  with  this  appointment,  neither  with 
the  manner  of  appointment,  nor  the  manner  of  authenticating  the 
appointment, 

If  then  an  elector,  or  a  body  of  electors,  present  with  the  vote 
which  they  cast  for  President  and  Vice-President  the  evidence  which 
the  State  has  prescribed  of  their  appointment,  the  inquiry  of  the 
two  Houses  is  answered.  They  have  been  legally  and  officially  in 
formed  who  are  entitled  to  vote  as  electors  for  "that  State.  There  ex 
ists  neither  in  the  nature  of  the  duty  they  are  to  perform  nor  in  any 
language  of  the  Constitution  the  right  to  inquire  into  the  validity  of 
that  appointment,  the  means  by  which  it  was  brought  about,  the 
fairness  of  the  election  by  which  it  was  determined,  or  the  miscon 
duct  of  the  tribunal  which  the  State  had  created  to  determine  the 
result.  Much  has  been  said  of  the  danger  of  the  device  of  returning 
boards,  and  it  may  bo  they  have  exercised  their  power  in  a  manner 
not  always  worthy  of  commendation.  But  I  take  the  liberty  of  say 
ing  that  such  a  power  lodged  iu  one  or  in  both  Houses  of  Congress 
would  boa  far  more  permanent  menace  to  the  liberty  of  the  people, 
to  the  legitimate  result  of  the  popular  vote,  than  any  device  for 
counting  these  votes  which  has  as  yet  been  adopted  by  the  States. 

Neither  at  the  time  of  the  adoption  of  the  Constitution,  nor  at  any 
time  since,  would  the  people  of  the  States  have  placed  in  the  hands 
of  Congress  the  power  to  constitute  itself  a  returning  board  as  to  the 
votes  for  presidential  electors,  and  then  upon  the  vote  cast  by  those 
whom  they  declare  to  be  electors,  decide  who  is  to  be  President  and 
Vice-President  of  the  United  States;  but  that  is  precisely  the  power 
claimed  for  the  two  Houses  of  Congress  and  for  this  Commission  repre 
senting  them. 

The  other  impli cation  is  that  because  the  House  of  Eepresentatives 
is  authorized  in  the  event  of  a  failure  to  elect  a  President  by  the  pre 
scribed  method,  to  proceed  itself  to  make  such  an  election,  it  must 
therefore  have  the  power  of  deciding  all  questions  relating  to  the 
appointment  of  electors.  I  confess  I  do  not  see  the  force  of  the  im 
plication,  or  of  the  argument.  If  it  had  any  force  otherwise,  it  is 
liable  to  the  serious  objection,  that  it  makes  that  body  the  solo  judge 
of  its  right  to  exercise  the  most  important  power  residing  in  the  do 
main  of  the  Federal  Government.  The  Senate  would  have  a  corre 
sponding  power  in  regard  to  the  Vice-President,  and  thus  each  House 
for  itself  and  not  the  two  Houses  would  count  the  vote.  I  do  not  con 
sider  the  argument  worth  further  attention,  and  therefore  dismiss  it. 

These  are  the  reasons,  Mr.  President,  which  have  determined  me  to 
vote  that  none  of  the  testimony  offered  iu  this  case  outside  of  that 
submitted  to  the  two  Houses  of  Congress  by  the  President  of  the 
Senate  can  be  lawfully  received  or  considered  by  the  Commission. 


OREGON. 

The  electoral  votes  of  Oregon  being  under  consideration- 
Mr.  Commissioner  MILLER  said: 

Mr.  PRESIDENT:  Having  on  the  occasion  of  the  papers  referred  to 
this  Commission  iu  the  Florida  case,  upon  the  question  of  the  admissi- 
bility  of  any  testimony  outside  of  the  certificates  and  accompanying 
papers  as  they  were  laid  before  the  two  Houses  of  Congress  by  the 
President  of  the  Senate,  expressed  the  views  which  governed  uiy 
action  on  that  question,  as  well  as  on  the  final  vote,  I  took  no  part  in 
the  discussion  of  the  Louisiana  case  in  conference,  because  I  was  of 
opinion  that  the  principles  laid  down  by  me  in  the  former,  and  which 
received  the  approval  of  the  Commission,  must  govern  its  action  in 
the  latter.  Iu  this  I  was  not  mistaken,  as  will  be  seen  by  an  exam 
ination  of  the  brief  grounds  of  the  decision  of  those  cases,  as  reported 
to  the  two  Houses  of  Congress  under  the  statute. 

It  is  the  purpose  of  the  few  remarks  which  I  propose  to  make  now 
to  show  that  the  same  principles,  when  applied  to  the  one  before  us, 
must  govern  this  as  it  did  the  two  fprnief  cases. 


We  have,  however,  now  as  then,  an  extraneous  question  of  the 
eligibility  of  one  of  the  electors,  rendered  more  important  because 
it  was  made  the  ground  of  a  refusal  by  the  governor  of  the  State  to 
certify  to  the  election  of  J.  W.  Watts,  whose  election  was  otherwise 
beyond  controversy,  and  of  the  substitution  in  his  certificate  of  the 
name  of  E.  A.  Crouin,  who  certainly  was  not  elected. 

On  this  subject  I  remain  of  opinion,  as  I  expressed  it  in  the  Florida 
case,  that  the  fact  that  Watts  held  an  office  of  trust  and  profit  under 
the  United  States  at  the  date  of  his  election  did  not  not  render  that 
election  void.  I  concede,  as  I  did  then,  that  his  title  to  the  office  could 
have  been  avoided,  if  there  had  been  any  tribunal  competent  to  try 
the  question  of  his  ineligibility,  and  it  had  been  so  tried  and  found  be 
fore  he  gave  his  vote  for  President  and  Vice-President.  In  this  case 
it  is  said  that  the  governor  of  the  State  was  such  a  tribunal,  and  that 
ho  did  decide  that  Watts  was  ineligible,  and  therefore  his  refusal  to 
certify  him  as  an  elector  is  justified.  But  I  look  in  vain  in  the  Con 
stitution  of  the  United  States,  in  the  laws  of  Congress,  and  in  the 
constitution  and  laws  of  Oregon,  for  any  support  for  such  authority 
in  the  governor.  In  the  absence  of  such  authority  in  one  or  the  other 
of  these  places,  the  action  of  the  governor  in  that  respect  was  the 
merest  assumption  of  power  without  any  legal  right.  If  he  had  such 
authority,  by  what  mode  of  procedure  was  ho  to  be  governed?  Un- 
der  what  rules  of  law  or  of  evidence  did  he  act  ?  Was  Watts  notified 
of  the  trial  ?  Had  he  opportuni  ty  to  bo  heard  ?  How  were  the  facts  ;i  s- 
certained  ?  There  is  not  a  shadow  of  pretense  that  any  such  trial  or 
hearing  was  had. 

The  question  of  the  disqualification  to  hold  an  office  has  almost  al 
ways  arisen  in  courts  of  justice  after  the  party  has  been  commissioned 
or  entered  upon  the  duties  of  his  office.  Even  in  cases  of  members  of 
legislative  bodies,  which  are  byexpress  constitutional  provision  judges 
of  the  qualification  of  their  own  members,  it  is  nearly  always  tried 
after  admission  to  a  seat.  This  concurrent  course  of  proceeding, 
whether  in  courts  or  in  the  Legislature,  is  strong  evidence  that  the 
title  is  recognized  until  the  disability  is  established.  And  this  is  log 
ically  just.  There  can  be  no  presumption  of  law  that  a  person  elected 
is  disqualified.  The  disqualification  is  a  fact  to  be  averred  and  estab 
lished  before  some  tribunal  legally  authorized  to  inquire  into  that 
fact.  I  am  therefore  clearly  of  opinion,  notwithstanding  the  cases 
cited  from  the  courts  of  Indiana,  that  Governor  Grover  had  no  more 
right  to  determine  the  ineligibility  of  an  elector  who  has  the  re 
quired  popular  vote  than  any  other  citizen  of  the  State  of  Oregon.  I 
have  already  discussed  the  right  of  this  Commission  to  do  so. 

If  Watts's  election  was  not  void,  his  subsequent  resignation  and 
failure  to  attend  made  a  vacancy  in  the  electoral  college,  which  the 
other  members  were  by  statute  authorized  to  fill,  and  his  appointment 
by  them  to  till  that  vacancy  was  valid,  because  he  had  then  ceased 
to  hold  the  office  of  postmaster,  which  has  been  the  source  of  the  con 
troversy. 

It  is  urged,  however,  in  opposition  to  counting  the  vote  of  Watts 
for  President  and  Vice-President,  that  he  has  no  certificate  of  his 
appointment  by  the  governor,  and  that  in  the  only  certificate  given 
by  that  officer  his  name  is  omitted  and  that  of  Cronin  is  substituted, 
and  it  is  contended  that  this  certificate  of  the  governor,  under  the 
seal  of  the  State,  attested  by  the  secretary  of  state,  is  the  official  and 
eonclusive  evidence  of  the  right  to  act  as  electors  for  the  State.  In 
support  of  this  proposition  it  is  strongly  asserted  that  such  was  the 
effect  given  to  the  governor's  certificates  in  the  Florida  and  Louisiana 
cases. 

This  is  a  strange  misconception,  if  it  be  honestly  believed  by  those 
who  assei't  it,  as  to  the  grounds  of  the  decision  in  these  cases.  Neither 
by  any  of  the  counsel  who  argued  the  case  on  both  sides,  nor  any  mem 
ber  of  the  Commission  in  conference,  was  any  such  sanctity  claimed 
for  the  certificate  of  the  governor.  The  counsel  for  the  Tilden  elect 
ors  insisted,  as  it  was  necessary  that  they  should  insist,  that  these 
certificates  interposed  no  legal  barrier  to  an  investigation  of  the  facts 
on  which  the  certificate  was  or  ought  to  have  been  founded.  The 
other  side  agreed  to  this,  and  the  only  difference  of  opinion  was  where 
that  inquiry  should  end.  The  majority  of  the  Commission,  both  in 
argument  and  in  the  reasons  attached  to  theiftlecision,  as  required  by 
the  statute,  said  this  inquiry  could  go  so  far  as  to  see  what  officer  or 
tribunal  was  by  the  laws  of  the  State  authorized  to  ascertain  and  de 
clare  who  were  elected  electors  by  the  popular  vote,  and  what  decla 
ration  they  had  made  on  the  subject,  and  could  go  no  further.  The 
minority  of  the  Commission,  and  the  counsel  with  whom  they  agreed, 
made  their  principal  assault  upon  this  position,  and  argued  manfully 
for  the  right  to  go  behind  the  action  of  that  tribunal,  to  reconsider 
the  evidence  on  which  it  had  acted,  and  to  review  and  reverse  its  de 
cision.  The  majority  were  of  opinion  that  the  tribunal  authorized  to 
determine  finally  and  conclusively  who  were  appointed  to  act  as 
electors  was  the  board  which  in  Florida  is  called  the  board  of  State 
canvassers,  and  in  Louisiana  the  returning  officers ;  and  it  was  against 
what  was  charged  to  be  the  mistakes,  the  usurpations,  the  frauds, 
and  corruption  of  these  officers  that  arguments  of  counsels  and  of  the 
minority  of  this  Commission  were  mainly  directed.  Over  the  ques 
tion  of  their  power,  and  the  finality  of  their  decisions,  the  battle  was 
fought,  and  it  is  idle  now  to  assert  that  it  was  over  the  effect  of  the 
governor's  certificate. 

But,  Mr.  President,  while  I  am  not  willing  to  have  my  position  in 
the  Florida  case  perverted  or  misrepresented  and  in  this  perverted 
shape  thrust  upon  me  as  a  rule  of  action  in  this  case,  I  can  have  no 
right  to  complain  and  do  not  complain  if  those  who  in  that  case  re- 


ELECTOEAL  COMMISSION. 


259 


garded  the  governor's  certificate  as  of  no  weight  shall  in  the  present 
case  insist  upon  it  as  a  document  agaiust  which  nothing  is  to  be  said, 
and  which  must  conclude  this  Commission.  If  the  statute  of  Florida 
had  made  the  governor  the  officer  to  canvass  the  returns  of  the  elec 
tions  and  declare  the  result,  I  am  not  able  to  see  how  we  could  go  be 
hind  his  official  certificate  of  that  result.  If  the  statutes  of  Oregon, 
which  all  must  concede  differ  from  those  of  Florida,  give  him  that 
power,  then,  according  to  my  view,  his  certificate  must  prevail  here, 
and  with  me,  whatever  may  bo  the  change  of  front,  if  there  be  such 
a  change  in  others. 

I  proceed  to  that  inquiry. 

The  first  clause  of  section  60  of  title  IX,  concerning  the  election  of 
presidential  electors,  declares  that  "  the  votes  for  the  electors  shall  be 
given,  received,  returned,  and  canvassed  as  the  same  are  given,  re 
turned,  and  canvassed  for  members  of  Congress.  The  remainder  of 
this  section  directs  what  is  to  be  done  after  this  canvass,  and  will  be 
considered  further  on.  But  I  turn  now  to  section  37  of  title  III,  which 
governs  the  canvassing  of  the  returns  for  members  of  Congress : 

The  county  clerk — 

It  says — 

immediately  after  the  abstract  of  votes  given  in  Ms  county,  shall  make  a  copy  of 
each  of  said  abstracts  and  transmit  it  by  mail  to  the  secretary  of  state,  at  the  seat 
of  government;  and  it  shall  bo  the  duty  of  the  secretary  of  state,  in  the  presence 
of  the  governor,  to  proceed,  within  thirty  days  after  the  election,  and  sooner  if  the 
returns  bo  all  received,  to  canvass  the  votes. 

This  is  all  of  that  section  which  has  any  applicability  to  the  electors. 
Returning  then  to  the  sixtieth  section  of  tho  law,  concerning  electors, 
we  find  that  after  making  this  canvass — 

The  secretary  of  state  shall  prepare  two  lists  of  tho  names  of  tho  electors  elected 
and  affix  the  seal  of  State  to  the  same.  Such  lists  shall  be  signed  by  tho  governor 
and  secretary,  and  by  the  lattf.r  delivered  to  the  college  of  electors  at  the  hour  of 
their  meeting  on  such  first  Wednesday  of  December. 

When  wo  have  added  to  these  extracts  tho  last  sentence  of  section  40 
of  the  general  election  law  of  tho  State,  we  have  all  that  I  deem 
essential  to  this  inquiry.  It  is  as  follows  : 

In  all  elections  in  this  State,  tho  person  haring  the  highest  number  of  votes  for 
any  ollice  shall  bo  deemed  to  have  boon  elected. 

I  am  of  opinion  that  these  statutory  provisions  of  tho  law  of  Ore 
gon  make  it  the  duty  of  the  secretary  of  state,  and  of  110  one  else,  to 
canvass  the  returns  of  all  tho  votes  given  for  electors,  to  ascertain  the 
result,  and  to  deliver  to  the  persons  elected  a  certificate  of  that  fact. 
It  follows  from  what  I  said  in  tho  Florida  case,  and  which  I  do  not 
desire  to  repeat,  that  his  action  in  the  matter,  within  tho  scope  of 
his  authority,  that  authority  being  commensurate  with  tho  duties  I 
have  mentioned,  is  binding  and  conclusive.  If  ho  has  made  a  can 
vass  of  tho  votes,  and  ascertained  who  was  elected,  no  other  canvass 
can  be  made  and  no  other  person  is  elected.  If  that  canvass  shows 
who  had  the  highest  number  of  votes,  so  many  as  tho  State  is  en 
titled,  and  who  had  that  number  of  votes,  tho  law  declares  to  be 
elected,  that  is,  appointed. 

If,  in  addition  to  this,  he  has  filed  a  full  and  official  statement  of 
this  canvass  in  his  office,  as  the  law  requires,  and  has  delivered  to  tho 
persons  thus  found  to  be  duly  elected  a  certificate  under  the  seal  of 
the  State  and  his  official  signature  showing  this  statement  and  this 
result,  their  title  to  the  office  and  the  right  to  exercise  its  functions 
are  complete. 

Tho  argument  in  opposition  to  this  view  is,  that  the  governor  is  the 
person  who  must  do  all  this ;  or  if  ho  alone  cannot  do  it,  that  ho 
and  the  secretary  of  state  must  do  it  jointly ;  that  the  provision 
that  the  returns  must  be  canvassed  in  his  presence,  and  that  he  must 
sign  the  certificate  to  be  delivered  to  the  person  elected,  establish 
this  proposition. 

Let  us  examine  into  this  a  little  more  critically.  If  we  separate 
what  the  governor  is  to  do  in  the  matter  of  canvassing  the  vote  from 
what  he  is  to  do  afterward,  wo  shall  see  that  his  duty  in  the  former, 
if  indeed  it  be  a  duty  at  all,  is  merely  that  of  being  present  as  a  wit 
ness  to  the  canvass  made  by  the  secretary.  Tho  returns  are  to  be 
transmitted  to  the  secretary  by  mail.  They  are  to  bo  received  by 
him  at  his  office;  to  be  opened  by  him.  The  time  of  making  tho 
canvass  is  to  be  determined  by  him,  as  soon  as  all  the  returns  are  re 
ceived,  but  in  no  event  later  than  thirty  days  after  the  election.  The 
canvass  is  to  be  made  by  him.  The  returns  on  which  this  canvass  is 
to  be  made,  the  canvass  itself,  the  result,  are  all  to  remain  in  his  of 
fice  under  his  official  control.  When  this  is  done  the  law  applies  to 
tho  result  the  declaration  that  the  persons  possessing  the  highest 
number  of  votes  are  elected.  That  is,  their  election  is  then  deter 
mined.  No  one  has  a  right  to  review  this  canvass  or  to  declare  a 
different  result.  Tho  right  of  tho  successful  candidate  is  established 
and  is  perfect.  And  it  Ls  hero  on  this  action  I  rest,  as  I  did  on  the 
action  of  tho  board  of  canvassers  of  Florida,  the  decision  of  the  ques 
tion  submitted  to  us,  Who  are  the  lawful  electors  of  Oregon,  and  whose 
votes  are  the  constitutional  votes  of  that  State  for  President  and  Vice- 
Presideut  ? 

Now,  in  all  this  matter  what  part  has  the  governor  of  tho  State  to 
play  ?  Ho  receives  no  returns,  he  counts  no  votes,  ho  has  custody  of 
no  papers,  he  controls  no  one  in  the  matter,  and  if  it  were  true,  as 
maintained  by  some,  that  he  alono  can  execute  tho  official  certificate 
mentioned  hereafter,  it  would  still  remain  as  I  have  already  said  that 
such  a  certificate  is  not  conclusive,  nor  its  absence  fatal,  but,  as  in 
the  cases  of  Florida  and  Louisiana,  this  tribunal  can  go  behind  it  and 


inquire  if  it  is  in  conformity  to  the  action  of  the  board  or  officer  who 
has  the  right  to  decide  on  tho  result  of  the  votes  as  returned  to  him. 

It  may  bo  asked,  why  is  ho  required  to  be  present  at  the  canvass  ? 
I  answer,  as  a  witness  to  the  transaction,  as  a  protection  to  its  fair 
ness  by  having  some  one  to  watch  the  secretary.  Ho  may  have  a 
right  to  make  objections,  suggestions,  to  file  a  protest,  to  institute 
proceedings  against  the  secretary,  to  furnish  evidence  of  his  mistake 
or  grosser  injustice,  but  no  right  to  dictate,  to  control,  or  assist  in 
the  process. 

The  canvass  being  made,  the  next  stop  is  to  certify  the  result  to 
the  persons  elected.  And  what  part  does  tho  governor  perform  in 
this  I  "The  secretary  shall  prepare  two  lists  of  tho  names  of  tho  persons 
elected  electors,  and  affix  the  seal  of  the  State  to  the  same."  In  doing 
this  the  governor  takes  no  part.  "  Such  lists  shall  be  signed  by  tho 
governor  and  secretary  and  by  the  latter  delivered  to  the  college  of 
electors."  The  making  out  this  certificate,  the  affixing  to  it  the  seal 
of  tho  State,  its  delivery  to  the  electoral  college,  are  all  acts  of  tho 
same  officer  who  received  and  canvassed  the  returns  and  in  whoso 
custody  and  control  they  remained.  The  governor  is  required  to  place 
his  signature  to  this  paper,  prepared  toliis  hand,  as  a  more  official 
attestation  of  the  result  arrived  at — a  formal  act,  adding  to  the  paper 
prepared  by  tho  secretary,  in  addition  to  his  own  name  and  tho  seal 
of  tho  State,  the  dignity  of  the  governor's  verification. 

Though  lacking  the  governor's  name,  tho  persons  who  received 
tho  highest  number  of  votes,  and  whom  the  statute  declares  to  bo 
elected,  present  to  the  President  of  the  Senate  and  tho  two  Houses 
of  Congress  a  certificate  from  the  secretary  of  state,  under  the  seal 
of  tho  State,  and  signed  by  him  in  his  official  capacity,  showing  that 
in  pursuance  of  the  statute  ho  did,  on  the  4th  day  of  December  last, 
in  the  presence  of  tho  governor,  canvass  the  votes  given  for  electors; 
that  the  result  of  that  canvass  was  that  Odoll,  Cartwright,  and 
Watts  having  received  the  three  highest  number  of  votes  were  elected 
electors;  that  all  this  appears  from  the  canvass  so  made  by  him  and 
on  file  in  his  office  on  the  (5th  day  of  December,  tho  date  of  this  cer 
tificate.  This  certificate  ho  delivered  as  directed  by  law  to  the  elect 
ors  on  the  first  Wednesday  in  December,  and  thereupon  they  proceeded 
to  give  their  votes  for  President  and  Vice-President.  What  is  want 
ing  to  their  authority  to  do  so  ?  They  had  a  majority  of  votes.  They 
were  duly  elected.  This  fact  was  ascertained  in  the  mode  and  by  tho 
officer  intrusted  with  that  duty  by  law.  They  have  his  official  cer 
tificate  of  that  fact  under  the  seal  of  the  State. 

I  cannot  believe  that  the  willful  refusal  of  the  governor  to  sign 
that  certificate  is  sufficient  to  nullify  everything  else  that  was  done, 
and  make  it  of  no  effect.  No  such  force  has  been  attributed  to  it  in 
the  other  cases,  and  I  do  not  see  how  it  can  bo  so  here. 

As  to  the  certificate  of  tho  governor  given  to  Cronin,  Odell  and 
Cartwright,  if  it  was  perfect  on  its  face,  no  one  has  yet  held  that  it 
was  conclusive.  No  one  in  the  Commission  has  asserted  that  it  is 
valid  as  to  Cronin,  and  this  is  a  full  admission  that  it  is  not  conclu 
sive  in  any  case. 

I  will  only  add  that  on  its  face  this  certificate  shows  that  the  gov 
ernor  undertook  to  decide  the  question  of  some  person's  eligibility  to 
the  office,  and  when  taken  in  connection  with  the  certificate  of  tho 
secretary  it  establishes  tho  fact  that  he  refused  to  certify  Watts  bo- 
cause  he  held  him  ineligible,  and  did  certify  Cronin  who  was  never 
elected.  Of  this  paper  no  more  need  bo  said,  nor  is  it  necessary  for 
mo  to  detain  the  Commission  longer. 


Remarks  of  Mr.  Commissioner  Bradley. 

[The  following  opinions  and  remarks  have  been  somewhat  abbre 
viated,  and  repetition  of  similar  arguments  in  the  different  cases  has 
been  omitted.] 

THE  FLORIDA  CASE. 

Statement. 
In  this  case  tho  objectors  to  the  Certificate  No.  1  (which  was  authenticated  by 


December,  before  they  gave  their  votes  for  President  and  Vice-President,  which 
on  January  26,  1877,  resulted  in  a  judgment  against  them,  and  in  favor  of  (ho 
Tilden  electors;  also  an  act  of  the  Legislature  pa,ssod  in  January,  in  favor  of  tho 
Tildeu  electors  ;  and  also  certain  extrinsic  evidence  described  by  the  counsel  of  tho 
objectors  as  follows : 

"Fifthly.  The  only  matters  which  the  Tilden  electors  desire  to  lay  before  tho  Com 
mission  by  evidence  actually  extrinsic  will  now  bo  stated  : 

"  I.  The  board  of  State  canvassers,  acting  on  certain  erroneous  views  when  making 
their  canvass,  by  which  tho  Hayes  electors  appeared  to  be  chosen,  rejected  wholly 
tho  returns  from  tho  county  of  'Manatee  and  parts  of  returns  from  each  of  tho  fol 
lowing  counties :  Hamilton,  Jackson,  and  Monroe. 

"  In  so  doing  the  said  State  board  acted  without  jurisdiction,  as  the  circuit  and 
supreme  courts  in  Florida  decided.  It  was  by  overruling  and  sotting  aside  as  not 
warranted  by  law  these  rejections,  that  the  courts  of  Florida  reached  their  respect 
ive  conclusions  that  Mr.  Drew  was  elected  governor,  that  tho  Hayes  electors  wore 
usurpers,  and  that  the  Tilden  electors  wore  duly  chosen. 

"  II.  Evidence  that  Mr.  Humphreys,  a  Hayes  elector,  held  office  under  the  United 
States." 

The  question  was  argued  as  to  the  admissibility  of  this  evidence. 

Mr.  Commissioner  BRADLEY  said : 

I  assume  that  the  powers  of  the  Commission  are  precisely  those,  and 
no  other,  which  the  two  Houses  of  Congress  possess  in  the  matter  sub 
mitted  to  our  consideration ;  and  that  the  extent  of  that  power  isouo 


260 


ELECTORAL  COMMISSION. 


of  the  questions  submitted.  This  is  my  interpretation  of  the  act  under 
which  we  are  organized. 

The  first  question,  therefore,  is,  whether,  and  how  far,  the  two 
Houses,  in  the  exercise  of  the  special  jurisdiction  conferred  on  them 
in  the  matter  of  counting  the  electoral  votes,  have  power  to  inquire 
into  the  validity  of  the  votes  transmitted  to  the  President  of  the 
Senate.  Their  power  to  make  any  inquiry  at  all  is  disputed  by,  or  on 
behalf  of,  the  President  of  the  Senate  himself.  But  I  think  the  prac 
tice  of  the  Government,  as  well  as  the  true  construction  of  the  Con 
stitution,  have  settled,  that  the  powers  of  the  President  of  the  Senate 
are  merely  ministerial,  conferred  upon  him  as  a  matter  of  convenience, 
as  being  the  presiding  officer  of  one  of  the  two  bodies  which  are  to 
meet  for  the  counting  of  the  votes  and  determining  the  election.  He 
is  not  invested  with  any  authority  for  making  any  investigation  out 
side  of  the  joint  meeting  of  the  two  Houses.  He  cannot  send  for  per 
sons  or  papers.  He  is  utterly  without  the  means  or  the  power  to  do 
anything  more  thaa  to  inspect  the  documents  sent  to  him  ;  and  ho 
cannot  inspect  them  until  he  opens  them  in  the  presence  of  the  two 
Houses.  It  would  seem  to  be  clear,  therefore,  that  if  any  examina 
tion  at  all  is  to  be  gone  into,  or  any  judgment  is  to  bo  exercised  in 
relation  to  the  votes  received,  it  must  be  performed  and  exercised  by 
the  two  Houses. 

Then  arises  the  question,  how  far  can  the  two  Houses  go  in  question 
ing  the  votes  received  without  trenching  upon  the  power  reserved  to 
the  States  themselves  ? 

The  extreme  reticence  of  the  Constitution  on  the  subject  leaves 
wide  room  for  inference.  Each  State  has  a  just  right  to  have  the 
entire  and  exclusive  control  of  its  own  vote  for  the  Chief  Magistrate 
and  head  of  the  Republic,  without  any  interference  on  the  part  of  any 
other  State,  acting  either  separately  or  in  Congress  with  others.  If 
there  is  any  State  right  of  which  it  is  and  should  be  more  jealous  than 
of  any  other,  it  is  this.  And  such  seems  to  have  been  the  spirit 
manifested  by  thefraruers  of  the  Constitution.  This  is  evidenced  by 
the  terms  in  which  the  mode  of  choosing  the  President  and  Vice- 
President  is  expressed.  " Each  State  shall  appoint,  in  such  manner 
as  the  Legislature  thereof  may  direct,  a  number  of  electors  equal  to 
the  whole  number  of  Senators  and  Representatives  to  which  the  State 
may  be  entitled  in  the  Congress  :  but  no  Senator  or  Representative, 
or  person  holding  an  office  of  trust  or  profit  under  the  United  States, 
shall  be  appointed  an  elector.  The  electors  shall  meet  in  their  re 
spective  States  and  vote  by  ballot,"  &c.  Almost  every  clause  here 
cited  is  fraught  with  the  sentiment  to  which  I  have  alluded.  The 
appointment  and  mode  of  appointment  belong  exclusively  to  the 
State.  Congress  has  nothing  to  do  with  it,  and  no  control  over  it,  ex 
cept  that,  in  a  subsequent  clause,  Congress  is  empowered  to  determine 
the  time  of  choosing  the  electors,  and  the  day  on  which  they  shall 
give  their  votes,  which  is  required  to  be  the  same  day  throughout  the 
United  States.  In  all  other  respects  the  jurisdiction  and  power  of  the 
State  is  controlling  and  exclusive  until  the  functions  of  the  electors 
have  been  performed.  So  completely  is  congressional  and  Federal  in 
fluence  excluded,  that  not  a  member  of  Congress  nor  an  officer  of  the 
General  Government  is  allowed  to  vbe  an  elector.  Of  course  this  ex 
clusive  power  and  control  of  the  State  is  ended  and  determined  when 
the  day  fixed  by  Congress  for  voting  has  arrived,  and  the  electors 
have  deposited  their  votes  and  made  out  the  lists  and  certificates  re 
quired  by  the  Constitution.  Up  to  that  time  the  whole  proceeding 
(except  the  time  of  election)  is  conducted  under  State  law  and  State 
authority.  All  machinery,  whether  of  police,  examining  boards  or 
judicial  tribunals,  deemed  requisite  and  necessary  for  securing  and 
preserving  the  true  voice  of  the  State  in  the  appointment  of  electors, 
is  prescribed  and  provided  for  by  the  State  itself  a,ud  not  by  Congress. 
All  rules  and  regulations  for  the  employment  of  this  machinery  are 
also  within  the  exclusive  province  of  the  State.  Over  all  this  field 
of  jurisdiction  the  State  must  bo  deemed  to  have  ordained,  enacted, 
and  provided  all  that  it  considers  necessary  and  proper  to  be  done. 

This  being  so,  can  Congress  or  the  two  Houses  institute  a  scrutiny 
into  the  action  of  the  State  authorities  and  sit  in  judgment  on  what 
they  have  done  ?  Are  not  the  findings  and  recorded  determinations 
of  the  State  board  or  constituted  authorities  binding  and  conclusive, 
since  the  State  can  only  act  through  its  constituted  authorities  ? 

But  it  is  asked,  must  the  two  Houses  of  Congress  submit  to  out 
rageous  frauds  and  permit  them  to  prevail  without  any  effort  to  cir 
cumvent  them  ?  Certainly  not,  if  it  is  within  their  jurisdiction  to  in 
quire  into  such  frauds.  But  there  is  the  very  question  to  be  solved. 
Where  is  such  jurisdiction  to  be  found  ?  If  it  docs  not  exist,  how  are 
the  two  Houses  constitutionally  to  know  that  frauds  have  been  com 
mitted  ?  It  is  the  business  and  the  jurisdiction  of  the  State  to  prevent 
frauds  from  being  perpetrated  in  the  appointment  of  its  electors,  and 
not  the  business  or  jurisdiction  of  the  Congress.  The  State  is  a  sov 
ereign  power  within  its  own  jurisdiction,  and  Congress  can  no  more 
control  or  review  the  exercise  of  that  jurisdiction  than  it  can  that  of 
a  foreign  government.  That  which  exclusively  belongs  to  one  tri 
bunal  or  government  cannot  be  passed  upon  by  another.  The  deter 
mination  of  each  is  conclusive  within  its  own  sphere. 

It  seems  to  me  to  be  clear,  therefore,  that  Congress  cannot  institute 
a  scrutiny  into  the  appointment  of  electors  by  a  State.  It  would  be 
taking  it  out  of  the  hands  of  the  State,  to  wliich  it  properly  belongs. 
This  never  could  have  been  contemplated  by  the  people  of  the  States 
when  they  agreed  to  the  Constitution.  It  would  be  going  one  step 
further  back  than  that  instrument  allows.  While  the  two  Houses  of 


Congress  are  authorized  to  canvass  the  electoral  votes,  no  authority  is 
given  to  them  to  canvass  the  election  of  the  electors  themselves.  To 
revise  the  canvass  of  that  election,  as  made  by  the  State  authorities, 
on  the  suggestion  of  fraud,  or  for  any  other  cause,  would  be  tanta 
mount  to  a  recanvass. 

The  case  of  elections  of  Senators  and  Representatives  is  different. 
The  Constitution  expressly  declares  that  "  each  House  shall  be  the 
judge  of  the  elections,  returns,  and  qualifications  of  its  own  mem 
bers."  No  such  power  is  given,  and  none  ever  would  have  been  given 
if  proposed,  over  the  election  or  appointment  of  the  presidential  elect 
ors.  Again,  while  the  Constitution  declares  that  "  the  times,  places, 
and  manner  of  holding  elections  of  Senators  and  Representatives  shall 
be  prescribed  in  each  State  by  the  Legislature  thereof ,"  it  adds,  "but 
the  Congress  may  at  any  time  by  law  make  or  alter  such  regulations, 
except  as  to  the  places  of  choosing  Senators."  No  such  power  is 
given  to  Congress  to  regulate  the  election  or  appointment  of  presi 
dential  electois.  Their  appointment,  and  all  regulations  for  making 
it,  and  the  manner  of  making  it,tare  left  exclusively  with  the  States. 

This  want  of  jurisdiction  over  the  subject  makes  it  clear  to  my 
mind  that  the  two  Houses  of  Congress  cannot  institute  any  scrutiny 
into  the  appointment  of  presidential  electors,  as  they  may  and  do  in 
reference  to  the  election  of  their  own  members.  The  utmost  they  can 
do  is  to  ascertain  whether  the  State  has  made  an  appointment  accord 
ing  to  the  form  prescribed  by  its  laws. 

This  view  receives  corroboration  from  the  form  of  a  bill  introduced 
into  Congress  in  1800  for  prescribing  the  mode  of  deciding  disputed 
elections  of  President  and  Vice-President,  and  which  was  passed  by 
the  Senate.  It  proposed  a  grand  committee  to  inquire  into  the  con 
stitutional  qualifications  of  the  persons  voted  for  as  President  and 
Vice-President,  and  of  the  electors  appointed  by  the  States,  and  vari 
ous  other  matters  with  regard  to  their  appointment  and  transactions; 
but  it  contained  a  proviso,  in  which  both  Houses  seem  to  have  con 
curred,  that  no  petition  or  exception  should  be  granted  or  allowed 
which  should  have  for  its  object  to  draw  into  question  the  number  of 
votes  on  which  any  elector  had  been  elected. 

This  bill  was  the  proposition  «f  the  Federal  party  of  that  day,  which, 
as  is  well  known,  entertained  strong  views  with  regard  to  the  power 
of  the  Federal  Government  as  related  to  the  State  governments.  It 
was  defeated  by  the  opposition  of  the  Republican  side,  as  being  too 
great  an  interference  with  the  independence  of  the  States  in  reference 
to  the  election  of  President  and  Vice-President.  And  taken  even  as 
the  Federal  view  of  the  subject,  it  only  shows  what  matters  were 
regarded  as  subject  to  examination  under  the  regulation  of  law,  and 
not  that  the  two  Houses  of  Congress,  when  assembled  to  count  the 
votes,  could  do  the  same  without  the  aid  of  legislation.  The  bill  was 
rather  an  admission  that  legislation  was  neceesary  in  order  to  provide 
the  proper  machinery  for  making  extrinsic  inquiries. 

It  is  unnecessary  to  enlarge  upon  the  danger  of  Congress  assuming 
powers  in  this  behalf  that  do  not  clearly  belong  to  it.  The  appetite 
for  power  in  that  body,  if  indulged  in  without  great  prudence,  would 
have  a  strong  tendency  to  interfere  with  that  freedom  and  independ 
ence  which  it  was  intended  the  States  should  enjoy  in  the  choice  of 
the  national  Chief  Magistrate,  and  to  give  Congress  a  control  over 
the  subject  which  it  was  intended  it  should  not  have. 

As  the  power  of  Congress,  therefore,  does  not  extend  to  the  making 
of  a  general  scrutiny  into  the  appointment  of  electors,  inasmuch  as 
it  would  thereby  invade  the  right  of  the  States,  so  neither  can  it  draw 
in  question,  nor  sit  in  judgment  upon,  the  determination  and  conclu 
sion  of  the  regularly  constituted  authorities  or  tribunals  appointed  by 
the  laws  of  the  States  for  ascertaining  and  certifying  such  appoint 
ment. 

And  here  the  inquiry  naturally  arises,  as  to -the  manner  in  which 
the  electors  appointed  by  a  State  are  to  be  accredited.  What  are  the 
proper  credentials  by  which  it  is  to  be  made  known  who  have  been 
appointed?  Obviously  if  no  provision  of  law  existed  on  the  subject, 
the  proper  mode  would  be  for  the  governor  of  the  State,  as  its  polit 
ical  head  and  chief,  through  whom  its  acts  are  made  known  and  by 
whom  its  external  intercourse  is  conducted,  to  issue  such  credentials. 
But  wo  are  not  without  law  on  the  subject.  The  Constitution,  it  is 
true,  is  silent;  but  Congress  by  the  act  of  1792  directed  that  "  it  shall 
be  the  duty  of  the  executive  of  each  State  to  cause  three  lists  of  the 
names  of  the  electors  of  such  State  to  be  made  and  certified  and  to  bo 
delivered  to  the  electors  on  or  before  the  day  on  which  they  are  re 
quired  to  meet;"  and  one  of  these  certificates  is  directed  to  be  annexed 
to  each  of  the  certificates  of  the  votes  given  by  the  electors.  And  if 
it  should  be  contended  that  this  enactment  of  Congress  is  not  bind 
ing  upon  the  State  executive,  the  laws  of  Florjda,  in  the  case  before 
us,  impose  upon  the  governor  of  that  State  the  same  duty.  I  think, 
therefore,  that  it  cannot  be  denied  that  the  certificate  of  the  governor 
is  the  proper  and  regular  credential  of  the  appointment  and  official 
character  of  the  electors.  Certainly  it  is  at  least  prima  facie  evidence 
of  a  very  high  character. 

But  the  Houses  of  Congress  may  undoubtedly  inquire  whether  the 
supposed  certificate  of  the  executive  is  genuine ;  and  I  think  they 
may  also  inquire  whether  it  is  plainly  false,  or  whether  it  contains  a 
clear  mistake  of  fact,  inasmuch  as  it  is  not  itself  the  appointment, 
nor  the  ascertainment  thereof,  but  only  a  certificate  of  the  fact  of 
appointment.  While  it  must  be  held  as  a  document  of  high  nature, 
not  to  be  lightly  questioned,  it  seems  to  me  that  a  State  ought  not  to 
be  deprived  of  its  vote  by  a  clear  mistake  of  fact  inadvertently  con- 


ELECTORAL  COMMISSION. 


2(51 


tained  in  the  governor's  certificate,  or  (if  such  a  case  may  be  sup 
posed)  by  a  willfully  false  statement.  It  has  not  the  full  sanctity 
which  belongs  to  a  court  of  record,  or  which,  in  my  judgment,  be 
longs  to  the  proceedings  and  recorded  acts  of  the  final  board  of  can 
vassers. 

In  this  case,  it  is  not  claimed  that  the  certificate  of  the  governor 
contains  any  mistake  of  fact,  or  that  it  is  willfully  false  and  fraudu 
lent.  It  truly  represents  the  result  of  the  State  canvass,  and  if  erro 
neous  at  all,  it  is  erroneous  because  the  proceedings  of  the  canvass 
ing  board  were  erroneous  or  based  on  erroneous  principles  and  find 
ings. 

It  seems  to  me  that  the  two  Houses  of  Congress,  in  proceeding  with 
the  count,  are  bound  to  recognize  the  determination  of  the  State 
board  of  canvassers  as  the  act  of  the  State,  and  as  the  most  authentic 
evidence  of  the  appoiumeut  made  by  the  State;  and  that  while  they 
may  go  behind  the  governor's  certificate,  if  necessary,  they  can  only 
do  so  for  the  purpose  of  ascertaining  whether  he  has  truly  certified 
the  results  to  which  the  board  arrived.  They  cannot  sit  aa  a  court  of 
appeals  on  the  action  of  that  board. 

The  law  of  Florida  declares  as  follows : 

On  tbe  thirty -fifth  day  after  the  holding  of  any  general  or  special  election  for  any 
State  officer,  member  of  the  Legislature,  or  Representative  in  Congress,  or  sooner, 
if  the  returns  shall  have  been  received  from  the  several  counties  wherein  the  elec 
tions  shall  have  been  held,  the  secretary  of  state,  attorney -general,  and  the  comp 
troller  of  public  accounts,  or  any  two  of  them,  together  with  any  other  member  of 
the  cabinet  who  may  be  designated  by  them,  shall  meet  at  the  'office  of  the  secre 
tary  of  state,  pursuant  to  notice  to  be  given  by  the  secretary  of  state,  and  form  a 
board  of  State  canvassers,  and  proceed  to  canvass  the  returns  of  said  election  and 
determine  and  declare  who  shall  have  been  elected  to  any  such  ojjicc  or  as  such  mem 
ber,  as  shown  by  stwh  returns. 

The  governor's  certificate  is  prima  fade  evidence  that  the  State 
canvassers  performed  their  duty.  Indeed,  it  is  conceded  by  the  ob 
jectors  that  they  made  a  canvass  and  certified  or  declared  the  same. 
It  is  not  the  failure  of  the  board  to  act,  or  to  certify  and  declare  the 
result  of  their  action,  but  an  illegal  canvass,  of  which  they  complain. 
To  review  that  canvass,  in  my  judgment,  the  Houses  of  Congress 
hay*  no  jurisdiction  or  power. 

The  question  then  arises,  whether  the  subsequent  action  of  the 
courts  or  Legislature  of  Florida  can  change  the  result  arrived  at  and 
declared  by  the  board  of  State  canvassers,  and  consummated  by  the 
vote  of  the  electors,  and  the  complete  execution  of  their  functions  ? 

If  the  action  of  the  State  board  of  canvassers  were  a  mere  state 
ment  of  a  fact,  like  the  certificate  of  the  governor,  and  did  not  in 
volve  the  exercise  of  decision  and  judgment,  perhaps  it  might  be  con 
troverted  by  evidence  of  an  equally  high  character.  Like  the  return 
to  a  habeas  corpus,  which  could  not,  in  former  times,  be  contradicted 
by  parol  proof,  but  might  be  contradicted  by  a  verdict  or  judgment 
in  an  action  for  a  false  return. 

Looking  at  the  subject  in  this  point  of  view,  I  was  at  one  time  in 
clined  to  think  that  the  proceedings  on  quo  warranto  in  the  circuit 
court  of  Florida,  if  still  in  force  and  effect,  might  be  sufficient  to 
contradict  the  finding  and  determination  of  the  board  of  canvass 
ers  supposing  that  the  court  had  j  urisdiction  of  the  case.  But  the 
achon  of  the  board  involved  more  than  a  mere  statement  of  fact. 
It  was  a  determination,  a  decision  quasi-judicial.  The  powers-  of 
the  board  as  defined  by  the  statute  which  created  it  are  expressed 
in  the  following  terms  :  "  They  shall  proceed  to  canvass  the  returns 
of  said  election  and  determine  and  declare  who  shall  have  been 
elected  to  any  office;"  and  "if  any  such  returns  shall  be  shown  or 
shall  appear  to  bo  so  irregular,  false,  or  fraudulent  that  the  board 
shall  be  unable  to  determine  the  true  vote  for  any  such  officer  or  mem 
ber,  they  shall  so  certify,  and  shall  not  include  such  return  in  their 
determination  and  declaration."  This  clearly  requires  quasi-judicial 
action.  To  controvert  the  finding  of  the  board,  therefore,  would  not 
be  to  correct  »  mere  statement  of  fact,  but  to  reverse  the  decision 
and  determination  of  a  tribunal.  The  judgment  on  the  quo  warranto 
was  an  attempted  reversal  of  this  decision  and  the  rendering  of  another 
decision.  If  the  court  had  had  jurisdiction  of  the  subject-matter,  and 
had  rendered  its  decision  before  the  votes  of  the  electors  were  cast,  its 
judgment,  instead  of  that  of  the  returning  board,  would  have  been 
the  final  declaration  of  the  result  of  the  election.  But  its  decision 
being  rendered,  after  the  votes  were  given,  it  cannot  have  the  opera 
tion  to  change  or  affect  the  vote,  whatever  effect  it  might  have  in  a 
future  judicial  proceeding  in  relation  to  the  presidential  election. 
The  official  acts  of  officers  de  facto  until  they  are  ousted  by  judicial 
process  or  otherwise  are  valid  and  binding. 

But  it  is  a  grave  question  whether  any  courts  can  thus  interfere 
with  the  course  of  the  election  for  President  and  Vice-President.  The 
remarks  of  Mr.  Justice  MILLER  on  this  subject  are  of  great  force  and 
weight. 

The  State  may,  undoubtedly,  provide  by  law  for  reviewing  the 
action  of  the  board  of  canvassers  at  any  time  before  the  electors  have 
executed  their  functions.  It  may  provide  any  safeguard  it  pleases  to 
prevent  or  counteract  fraud,  mistake,  or  illegality  on  the  part  of  the 
canvassers.  The  Legislature  may  pass  a  law  requiring  the  attend 
ance  of  the  supreme  court  or  any  other  tribunal  to  supervise  the 
action  of  the  board,  and  to  reverse  it  if  wrong.  But  no  such  pro 
vision  being  made,  the  final  action  of  the  board  must  be  accepted  as 
the  action  of  the  State.  No  tampering  with  the  result  can  be  ad 
mitted  after  the  day  fixed  by  Congress  for  casting  the  electoral  votes, 


and  after  it  has  become  manifest  where  the  pinch  of  the  contest  for 
the  Presidency  lies,  and  how  it  may  be  manipulated. 

I  am  entirely  clear  that  the  judicial  proceedings  in  this  case  were 
destitute  of  validity  to  affect  the  votes  given  by  the  electors.  De 
clared  by  the  board  of  canvassers  to  have  been  elected,  they  were  en 
titled,  by  virtue  of  that  declaration,  to  act  as  such  against  all  the 
world  until  ousted  of  their  office.  They  proceeded  to  perform  the 
entire  functions  of  that  office.  They  deposited  their  votes  in  a  regu 
lar  manner,  and  on  the  proper  and  only  day  designated  for  that  pur 
pose,  and  their  act  could  not  be  annulled  by  the  subsequent  proceed 
ings  on  the  quo  warranto,  however  valid  these  might  be  for  other  pur 
poses.  When  their  votes  were  given,  they  were  the  legally  constituted 
electors  for  the  State  of  Florida. 

The  supreme  court  of  Florida  said  in  the  Drew  case,  it  is  true,  that 
the  board  of  canvassers  exceeded  their  jurisdiction,  and  that  their 
acts  were  absolutely  void.  In  this  assertion  I  do  not  concur;  and  it 
was  not  necessary  to  the  judgment,  which  merely  set  aside  the  finding 
of  the  board  and  directed  a  new  canvass.  Under  the  Florida  statute, 
the  board  had  power  to  cast  out  returns.  They  did  so.  The  court 
thought  they  ought  to  have  cast  out  on  a  different  principle  from  that 
which  they  adopted.  This  was  at  most  error,  not  want  or  excess  of 
jurisdiction.  They  certainly  acted  within  the  scope  of  their  power, 
though  they  may  have  acted  erroneously.  This  is  the  most  that  can 
be  said  in  any  event ;  and  of  this  the  Houses  of  Congress  cannot  sit 
in  judgment  as  a  court  of  appeal. 

The  question  is  asked,  whether  for  no  cause  whatever  the  declara 
tion  and  certificate  of  the  board  of  canvassers  can  be  disregarded?  as 
if  they  should  certify  an  election  when  no  election  had  been  held, 
and  other  extreme  cases  of  that  sort.  I  do  not  say  that  a  clear  and 
evident  mistake  of  fact  inadvertently  made,  and  admitted  to  have 
been  made,  by  the  canvassers  themselves,  or  that  such  a  gross  fraud 
and  violation  of  duty  as  that  supposed,  might  not  be  corrected,  or 
that  it  might  not  affect  the  validity  of  the  vote.  On  that  subject,  as 
it  is  not  necessary  in  this  case,  I  express  no  opinion.  Such  extreme 
cases,  when  they  occur,  generally  suggest  some  special  rule  for  them 
selves  without  unsettling  those  general  rules  and  principles  which 
are  the  only  safe  guides  in  ordinary  cases  The  difficulty  is  that  the 
two  Houses  are  not  made  the  judges  of  the  election  and  return  of  the 
presidential  electors. 

I  think  no  importance  is  to  bo  attached  to  the  acts  performed  by 
the  board  of  canvassers  after  the  6th  day  of  December ;  nor  to  the 
acts  of  the  Florida  Legislature  in  reference  to  the  canvass.  In  my 
judgment,  they  are  all  unconstitutional  and  void.  To  allow  a  State 
Legislature  in  any  way  to  change  the  appointment  of  electors  after 
they  have  been  elected  and  given  their  votes,  would  be  extremely 
dangerous.  It  would,  in  effect,  make  the  Legislature  for  the  time 
being  the  electors,  and  would  subvert  the  design  of  the  Constitution 
in  requiring  all  the  electoral  votos  to  be  given  on  the  same  day. 

My  conclusion  is  that  the  validity  of  the  first  certificate  cannot  be 
controverted  by  evidence  of  the  proceedings  had  in  the  courts  of 
Florida  by  quo  warranto,  and  that  said  evidence  should  not  be  received. 

It  is  further  objected  that  Humphreys,  one  of  the  Hayes  electors, 
held  an  office  of  trust  and  profit  under  the  Government  of  the  United 
States  at  the  time  of  the  general  election,  and  at  the  time  of  giving 
his  vote.  I  think  the  evidence  of  this  fact  should  be  admitted.  Such 
an  office  is  a  constitutional  disqualification.  I  do  not  think  it  re 
quires  legislation  to  make  it  binding.  What  maybe  the  effect  of  the 
evidence  when  produced,  I  am  not  prepared  to  say.  I  should  like  to 
hear  further  argument  on  the  subject  before  deciding  the  question. 

[It  being  shown  that  Humphreys  resigned  his  office  before  the  elec 
tion,  the  question  of  iueligibility  became  unimportant.  Justice 
BRADLEY  held,  however,  that  the  constitutional  prohibition,  that  no 
member  of  Congress  or  officer  of  the  Government  should  be  appointed 
an  elector,  is  only  a  form  of  declaring  a  disqualification  for  the  elect 
oral  office,  and  does  not  have  the  effect  of  annulling  the  vote  given 
by  one  who,  though  disqualified,  is  regularly  elected,  and  acts  as  an 
elector ;  likening  it  to  the  case  of  other  officers  de  facto.~\ 


THE  LOUISIANA  CASE. 
Statement. 

The  objections  to  the  votes  of  the  electors  certified  by  Kellogg  as  governor  of 
Louisiana,  being  condensed,  are  in  substance  as  follows : 

First.  That  the  government  of  Louisiana  is  not  republican  in  form. 

Second.  That  Kellogg  was  not  governor.  » 

Tlii rd.  That  at  the  time  of  the  election,  in  November  last,  there  was  no  law  of 
the  State  directing  the  appointment  of  electors. 

Fourth.  That  so  much  of  the  election  law  which  was  in  force  as  relates  to  the 
returning  board  was  unconstitutional  and  void. 

Fifth.  'That  the  board  was  not  constituted  according  to  the  law ;  having  only  four 
members  of  one  political  party,  when  there  should  have  been  live  members  of  dif 
ferent  political  parties. 

Sixth.  That  they  acted  fraudulently  and  without  .jurisdiction  in  casting  out  and 
rejecting  the  returns  or  statements  of  various  commissioners  of  election,  without 
having  before  them  any  statement  or  affidavit  of  violence  or  intimidation  as  re 
quired  by  law  to  give  them  jurisdiction  to  reject  returns;  that  they  neglected  to 
canvass  the  returns  of  the  commissioners  and  canvassed  those  of  the  supervisors 
of  registration— that  is,  the  parish  abstracts  instead  of  the  precinct  returns;  that 
they  did  not  canvass  all  of  these,  (which  would  have  elected  the  Tildeu  electors,) 
but  falsely  and  fraudulently  counted  in  the  Hayes  electors,  knowing  the  count  to 
be  false ;  'and  that  they  ottered  to  give  the  votes  the  other  way  for  a  bribe ;  and 
that  the  certificate  given  by  Kellogg  to  the  Hayes  electors  was  the  result  of  a  con- 


ELECTORAL  COMMISSION. 


Bpiracy  between  Kellojjg  ami  the  returning  board  suiil  others  to  defraud  tboir  op 
iiom-ntsof  tlioir  election  ami  tho  State  of  lior  right  to  vote;  and  that  the  Hayes 
electors  were  not  elected,  but  their  opponent*  were. 

Seventh.  That  two  of  the  electors  certified  by  Kellogg  were  Ineligible  at  the 
time  of  the  election  by  holding  otlico  under  tho  Government  of  tho  United  States  ; 
and  lliat  others  were  ineligible  by  holding  State  owces.aud  that  Kellogg  could  not 
legally  certify  himself  as  an  elector. 

FEBRUARY  16, 1877. 

Mr.  Commissioner  BRADLEY  said : 

The  first  two  objcctious,  that  the  State  is  without  a  republican  form 
of  government,  and  that  Kellogg  was  not  governor,  are  not  seriously 
insisted  upon. 

The  question  whether  the  State  had  any  law  directing  the  appoint 
ment  of  electors  of  President  and  Vice-President,  and  regulating 
their  proceedings,  depends  upon  whether  the  presidential  electoral 
law  of  1868  was  or  was  not  repealed  by  the  general  election  law  of 
1872,  which,  is  admitted  to  have  been  in  force  at  the  time  of  the  lust 
election. 

The  repealing  clause  relied  on  is  in  tho  last  section  of  the  act,  and 
is  in  these  words : 

That  this  act  shall  take  effect  fro  in  and  after  Its  passage,  and  that  all  others  on 
tho  subject  of  election  laws  he,  and  the  same  are  hereby,  repealed. 

The  question  is,  whether  the  act  relating  to  presidential  electors  is 
an  act  "on  the  subject  of  election  latvs"  within  the  meaning  of  this 
repealing  clause.  I  am  entirely  satisfied  that  it  is  not,  and  that  no 
part  of  it  is  repealed  by  the  act  of  1872,  except  one  section  which  re 
lates  to  the  mode  of  returning  and  ascertaining  the  votes  for  electors. 
My  reasons  are  these : 

In  the  session  of  1868,  an  act  was  passed,  approved  October  19, 1868, 
which  professed  to  bo  a  general  election  law,  regulating  the  mode  of 
holding  and  ascertaining  the  result  of  all  elections  in  the  State,  mak 
ing  provision  for  preserving  order  thereat,  and  for  executing  gen 
erally  tho  one  hundred  and  third  article  of  the  constitution,  which 
declares  that  "  the  privilege  of  free  suffrage  shall  be  supported  by 
laws  regulating  elections  and  prohibiting  under  adequate  penalties 
all  undue  influence  thereon  from  power,  bribery,  tumult,  or  other  im 
proper  practice."  A  distinct  act  was  passed  at  the  same  session,  ap 
proved  October  30,  1868,  which  is  the  act  relating  to  presidential 
electors,  before  referred  to.  It  certainly  was  not  supposed  that  one 
of  these  acts  conflicted  with  the  other.  Tho  one  regulated  the  man 
ner  of  holding  and  ascertaining  the  results  of  elections  generally ; 
the  other  prescribed  the  mode  of  appointing  the  presidential  electors 
to  which  the  State  was  entitled,  namely,  that  they  should  bo  elected 
on  the  day  fixed  by  Congress,  two  for  the  State  at  large,  and  one  in 
each  congressional  district ;  prescribed  their  qualifications,  and  the 
time  and  place  of  their  meeting  to  perform  their  duties ;  authorized 
them  when  met  to  fill  any  vacancies  caused  by  the  failure  of  any  mem 
bers  to  attend;  and  regulated  their  pay.  One  section,  it  is  true,  di 
rected  the  manner  in  which  tho  returns  should  be  canvassed,  namely, 
by  the  governor  in  presence  of  the  secretary  of  state,  the  attorney- 
general,  and  a  district  judge;  and  the  first  section  directed  that  the 
election  for  electors  should  bo  hold  on  the  day  appointed  by  the  act 
of  Congress,  and  that  it  should  be  held  and  conducted  in  the  manner 
and  form  provided  by  law  for  general  State  elections. 

At  the  same  session  (1868)  provision  was  made  for  revising  all  the 
general  statutes  of  tho  State  under  the  direction  of  a  committee  ap 
pointed  for  that  purpose.  This  committee  appointed  Mr.  John  Eay 
to  make  tho  revision.  It  was  duly  reported  and  adopted  during  the 
session  of  1870.  It  contained,  under  the  title  of  "  Elections,"  tho  act 
of  October  19,  1868 ;  and  under  the  title  "  Presidential  Electors,"  the 
act  of  October  30,  1868,  showing  conclusively  that  at  that  time  tho 
two  acts  wore  not  deemed  incompatible  with  each  other. 

A  new  election  law  was  passed  at  the  same  session  as  a  substitute 
for  that  of  October  19, 1868,  repealing  all  conflicting  laws  ;  but  it  was 
not  inserted  in  the  revised  statutes,  because  they  did  not  contain 
any  of  the  laws  of  that  session.  A  law  was  passed,  however,  author 
izing  tho  reviser  (Mr.  Ray)  to  publish  a  now  edition,  under  the  name 
of  a  digest,  which  should  embrace  tho  acts  of  1870.  This  was  done, 
uud  tho  new  election  law  was  inserted  under  the  title  "Elections" 
in  the  place  of  the  old  law.  The  act  relating  to  presidential  electors 
was  untouched,  oxcppt  to  insert  in  it  the  new  method  of  making  the 
returns  of  tho  elections  by  the  returning  board,  which  was  tho  only 
part  of  the  now  law  which  conflicted  with  it.  It  is  apparent,  there 
fore,  that  the  election  law  of  1870  was  not  deemed  repugnant  to  the 
law  relating  to  "  Presidential  Electors,"  except  in  the  one  particular 
mentioned. 

Now  the  act  of  1872,  which  it  is  alleged  does  repeal  tho  law  relat 
ing  to  presidential  electors,  is  simply  a  substitute  for  tho  general 
election  law  of  1870,  going  over  and  occupying  exactly  tho  sumo 
ground,  and  no  more,  and  making  very  slight  alterations.  Tho  prin 
cipal  of  these  is  tho  reconstruction  of  the  returning  board.  With 
this  exception  it  does  not  in  the  least  conflict,  any  more  than  did  tho 
act  of  1870,  with  the  provisions  of  the  law  relating  to  "  presidential 
electors."  And  as  the  repealing  clause  therein  (before  referred  to) 
is  expressly  confined  to  "  acts  on  the  subject  of  election  laivs,"  it  seems 
to  me  most  manifest  that  the  intent  was  to  repeal  the  election  law 
only,  and  not  that  relating  to  "  presidential  electors."  This  view  is 
corroborated  by  the  sixty-ninth  section,  which  has  this  expression : 
"  The  violation  of  any  provision  of  the  act,  or  section  of  the  net  re- 
pcaled  ly  this  act,  shall  be  considered,"  &c.  Repealing  clauses  should 


not  bo  extended  so  as  to  repeal  laws  not  in  couflict  with  tho  new  law, 
unless  absolutely  necessary  to  give  effect  to  the  words.  And  when 
we  consider  the  consequences  which  a  repeal  of  the  law  relating  to 
presidential  electors  would  have  in  depriving  tho  State  of  its  power 
to  have  vacancies  in  its  electoral  college  filled,  in  introducing  confu 
sion  and  uncertainty  as  to  the  districts  they  should  be  chosen  from, 
and  by  leaving  no  directions  as  to  the  tune  and  place  of  their  meet 
ing,  it  seems  clear  that  it  could  never  have  been  in  the  mind  of  tho 
Legislature  to  repeal  that  law. 

There  is  a  section  in  tho  act  of  1872  relating  to  vacancies  which  it 
has  been  suggested  is  repugnant  to  tho  authority  of  tho  electoral 
college  to  fill  vacancies  in  that  body.  It  is  section  24,  which  enacts, 
"that  all  elections  to  be  held  in  this  State  to  fill  any  vacancies  shall 
be  conducted  and  managed,  and  returns  thereof  shall  be  made,  in  the 
same  manner  as  is  provided  for  general  elections."  But  this  is  ex 
plained  by  the  fact  that  both  the  constitution  and  tho  election  law 
itself  direct  vacancies  in  certain  offices  named  (including  that  of  mem 
bers  of  the  Legislature)  to  be  filled  by  a  new  election.  The  twenty- 
fourth  section  means  only,  that  where  elections  are  to  be  held  to  iill 
vacancies,  they  shall  be  held  in  the  usual  manner.  It  cannot  mean 
that  all  vacancies  shall  be  filled  by  another  election ;  because  the 
Constitution  expressly  gives  to  the  governor  tho  power  to  fill  va 
cancies  in  certain  cases. 

I  am  clearly  of  opinion,  therefore,  that  the  law  relating  to  presi 
dential  electors  has  not  been  repealed,  except  as  to  the  mode  of  can 
vassing  tho  returns ;  and  that  that  is  to  be  performed  by  the  return 
ing  board  created  by  the  act  of  1872,  in  lieu  of  tho  Lynch  returning 
board  created  by  tho  act  of  1870,  and  in  lieu  of  the  method  originally 
prescribed  in  the  law  relating  to  presidential  electors. 

This  disposes  of  the  objection,  that  the  electoral  college  had  no 
power  to  fill  vacancies  in  its  own  body,  since  the  electoral  law  has  a 
section  which  expressly  authorizes  the  college  to  fill  any  vacancy  that 
may  occur  by  the  non-attendance  of  any  of  the  electors  by  four  o'clock 
in  the  afternoon  of  the  day  for  giving  their  votes. 

But  it  is  insisted  that  that  part  of  the  election  law  of  1872  which 
re-establishes  the  returning  board,  and  gives  it  its  powers,  is  uncon 
stitutional.  Tho  act  declares  "  that  five  persons  to  be  elected  by  tho 
Senate  from  all  political  parties,  shall  be  the  returning  officers  for  all 
elections.  In  case  of  any  vacancy  by  death,  resignation,  or  other 
wise,  by  cither  of  tho  board,  then  tho  vacancy  shall  bo  filled  by  tho 
residue  of  the  board  of  returning  officers." 

The  powers  and  duties  of  the  board  are,  to  meet  in  New  Orleans 
within  ten  days  after  tho  election,  canvass  and  compile  the  statement 
of  votes  made  by  the  commissioners  of  election,  and  inako  returns  of 
the  election  to  the  secretary  of  state,  and  publish  a  copy  in  the  public 
journals,  declaring  tho  names  of  all  persons  and  officers  voted  for,  the 
number  of  votes  for  each  person,  and  the  names  of  the  persons  who 
have  been  duly  and  lawfully  elected.  It  is  declared  that  the  returns 
thus  made  and  promulgated  shall  be  prima  facie  evidence  in  all  courts 
of  justice  and  before  all  civil  officers,  until  set  aside  after  contest  ac 
cording  to  law,  of  tho  right  of  any  person  declared  elected.  On  re 
ceiving  notice  from  any  supervisor  of  election,  supported  by  affida 
vits,  and  being  convinced  by  examination  and  testimony  that  by 
reason  of  riot,  tumult,  acts  of  violence,  intimidation,  armed  disturb 
ance,  bribery,  or  corrupt  influences,  the  purity  and  freedom  of  elec 
tion  at  any  voting-place  were  materially  interfered  with,  or  a  suffi 
cient  number  of  qualified  voters  to  change  the  result  were  prevented 
from  registering  and  voting,  it  is  made  the  duty  of  the  board  to  ex 
clude  from  their  returns  the  votes  given  at  such  voting-place. 

Why  this  law  is  unconstitutional,  I  cannot  perceive.  The  powers 
given  may  bo  abused,  it  is  true,  but  that  is  the  case  with  all  powers. 
The  constitutionality  of  the  board  has  been  considered  by  the  supreme 
court  of  Louisiana,  and  has  been  fully  sustained.  It  is  said  that  the 
term  of  office  is  indefinite,  and  might  continue  for  life.  But  wrhero 
no  period  is  fixed  for  tho  tenure  of  an  office,  it  is  held  at  the  will  of  the 
appointing  power,  which  may  at  any  time  make  a  new  appointment. 
So  that  no  evil  consequences  can  ensue  from  this  cause.  If  the  mem 
bers  of  tho  board  were  appointed  for  a  term,  the  senate  could  re-ap 
point  them.  Allowing  them  to  remain,  when  power  exists  to  remove 
them  at  will,  is  substantially  the  same  thing. 

The  objection  that  there  were  only  four  members  constituting  the 
board  at  the  canvass  in  December  last  is  met  by  the  general  rule  of 
law  in  regard  to  public  bodies,  that  tho  happening  of  a  vacancy 
does  not  destroy  the  body  if  a  quorum  still  remains.  The  supremo 
court  consists  of  nine  justices;  but  the  court  may  be  legally  held 
though  there  are  three  vacancies,  only  six  being  required  for  a  quo 
rum.  A  vacancy  in  a  branch  of  tho  Legislature,  in  tho  board  of  super 
visors  of  a  county,  in  the  commissioners  or  selectmen  of  a  town,  iu 
tho  trustees  of  a  school  district,  does  not  destroy  the  body  nor  vitiate 
its  action,  unless  there  bo  an  express  law  to  make  it  do  so. 

But  it  is  said  that  the  power  given  to  the  board  to  fill  vacancies  in 
its  own  body  is  mandatory.  It  is  in  exactly  the  same  terms  as  those 
contained  in  the  election  law  of  1870  on  the  same  subject.  Iu  several 
cases,  arising  under  that  act,  the  supreme  court  of  Louisiana  decided 
that  this  language  was  not  compulsory,  or,  at  least  did  not  affect  the 
legal  constitution  of  the  board  if  not  complied  with ;  but  that  tho 
board  was  a  legal  board  though  only  four  members  remained  in  it. 
Had  the  board  never  been  filled  at  all,  it  might  be  urged  with  more 
plausibility  that  it  was  never  legally  constituted.  If  a  court  be  cre 
ated  to  consist  of  five  judges,  although  if  once  legally  organized  a 


ELECTORAL  COMMISSION. 


2(53 


single  judge  might  hold,  the  court  in  the  absence  of  the  others,  yet 
if  only  one  judge  were  ever  appointed  it  might  very  properly  be  said 
that  no  legal  organization  had  ever  taken  place.  In  this  case  the 
vacancy  in  the  hoard  occurred  after  it  had  been  duly  constituted  by 
the  appointment  of  the  full  number  of  members.  Afterward  the  va 
cancy  occurred.  And  if  it  be  the  correct  view,  as  was  decided  by  the 
supreme  court  of  Louisiana  in  regard  to  the  Lynch  board,  that  the 
power  given  to  the  remaining  members  to  fill  the  vacancy  is  not 
mandatory,  a  neglect  on  their  part  to  fill  it  does  not,  it  seem  to  me, 
destroy  the  existence  of  the  board,  or  deprive  it  of  power  to  act.  If 
it  be  true,  as  alleged,  that  members  of  only  one  political  party  re 
mained  on  it,  it  may  have  been  an  impropriety  in  proceeding  without 
lilling  the  vacancy,  and  the  motives  of  the  members  may  have  been 
bud  motives,  corrupt,  fraudulent,  what  not ;  but  with  improprieties 
and  with  the  motives  of  the  members  we  have  nothing  to  do.  Wo 
are  not  the  judges  of  their  motives.  The  question  with  which  we 
have  to  do  is  a  question  of  power,  of  legal  authority  in  four  members 
to  act.  And  of  this  I  have  no  doubt.  The  board  was  directed  "  to  be 
elected  by  the  senate  from  all  political  parties,"  it  is  true.  It  does 
not  appear  that  this  was  not  done.  Can  it  bo  contended  that  the 
resignation  or  death  of  one  of  the  members,  who  happened  to  be  alone 
in  his  party  connections,  deprives  the  remainder  of  the  power  to  act  ? 
I  think  not.  If  the  four  members  remaining  wore  all  of  different  pol- 
itics,  the  objection  would  lose  all  its  force.  So  that  it  is  resolved  to 
this :  that  the  power  to  fill  a  vacancy  is  mandatory  when  any  polit 
ical  party  ceases  to  be  represented  by  the  death  or  resignation  of  a 
member,  and  is  not  mandatory  in'  any  other  case.  Suppose,  instead 
of  dying  or  resigning,  the  member  changes  his  party  affiliations ;  is 
there  a  vacancy  then?  Can  the  other  members  oust  him,  or  can  he 
oust  them  ?  The  senate,  with  whom  resides  the  power  of  appointing 
a  new  board  whenever  it  sees  fit,  might  be  in  duty  bound  to  act ;  but 
the  same  cannot  be  said  of  the  board  itself.  If  this  were  not  Louisi 
ana,  but  some  State  in  which  no  gharges  of  fraud  and  disorder  were 
made,  the  objection  would  hardly  bo  thought  of  as  having  any  legal 
validity. 

The  next  question  relates  to  the  alleged  illegality  and  fraud  in  the 
proceedings  of  the  returning  board.  Can  the  two  Houses  of  Congress 
go  behind  their  returns  and  certificate  and  examine  into  their  con 
duct  ?  I  have  already  discussed  this  subject  to  some  extent  in  the 
Florida  case.  I  shall  now  only  state  briefly  the  conclusions  to  which 
I  have  come  in  this  case : 

First.  I  consider  the  governor's  certificate  of  the  result  of  the  can- 
v ass  as  prlma  fade  evidence  of  the  fact,  but  subject  to  examination 
and  contradiction.  This  point  has  already  been  considered  iu  the 
Florida  case. 

Secondly.  The  finding  and  return  of  the  State  canvassers  of  the 
election  are,  in  their  nature,  of  greater  force  and  effect  than  the  gov 
ernor's  certificate,  being  that  on  which  his  certificate  is  founded  and 
being  the  final  result  of  the  political  machinery  established  by  the 
State  to  ascertain  and  determine  the  very  fact  iu  question.  "Each 
State  shall  appoint"  is  the  language  of  the  Constitution.  Of  course 
the  two  Houses  must  be  satisfied  that  the  State  has  appointed  and 
that  the  votes  presented  were  given  by  its  appointees.  The  primary 
proof  of  this,  as  prescribed  by  the  laws  of  the  United  States,  is  the 
certificate  o£  the  governor.  But,  as  before  stated,  I  do  not  deem  that 
conclusive.  It  may  be  shown  to  be  false  or  erroneous  in  fact,  or  based 
upon  the  canvass  «ud  return  of  a  board  or  tribunal  that  had  no  au 
thority  to  act.  This  was  conceded  in  the  proceedings  which  took 
place  with  regard  to  the  votes  of  Louisiana  in  1873. 

Was  the  returning  board  of  Louisiana  a  tribunal,  or  body,  consti 
tuted  by  the  laws  of  the  State,  with  power  to  ascertain  and  declare 
the  result  of  the  election,  and  did  that  board,  in  the  exercise  of  the 
jurisdiction  conferred  upon  it,  ascertain  and  declare  that  result  ? 
This,  it  seems  to  me,  is  the  point  to  be  ascertained. 

This  involves  an  examination  of  the  laws  of  the  State  to  ascertain 
what  that  tribunal  is  and  what  general  powers  it  is  invested  with, 
not  for  the  purpose  of  seeing  whether  all  the  proceedings  of  the  board, 
or  of  the  election  officers  whose  action  preceded  theirs,  were  in  strict 
compliance  with  the  law,  hut  for  the  purpose  of  seeing  whether  the 
result  comes  from  the  authorities  provided  by  the  State,  acting  sub 
stantially  within  the  scope  of  their  appointment.  This  is  necessary 
to  be  done  in  order  to  see  whether  (whatever  irregularities  may  have 
occurred)  it  was  the  State  which  made  the  appointment,  or  some 
usurping  body  not  authorized  by  the  State  at  all. 

The  examination  to  be  made  is  somewhat  analogous  to  that  made 
into  the  jurisdiction  of  a  court  when  its  judgment  is  collaterally 
assailed.  If  the  board  declared  the  result  of  the  election,  and  in  so 
doing  acted  within  the  general  scope  of  its  powers,  it  seems  to  me 
that  the  inquiry  should  there  end.  The  constitutional  power  of  the 
two  Houses  of  Congress  does  not  go  further. 

On  the  question  of  jurisdiction,  I  think  it  competent  for  the  Houses 
to  take  notice  of  the  fact  (if  such  was  the  fact)  that  the  returning 
board  had  no  returns  before  it  at  all,  and,  in  effect,  (to  speak  as  we 
do  of  judicial  proceedings,)  without  having  a  case  before  it  to  act 
on ;  or  of  the  fact  (if  such  was  the  fact)  that  the  board  which  pre 
tended  to  act  was  not  a  legal  board.  This  view  was  taken  by  both 
Houses,  if  I  understand  their  action  aright,  in  the  count  of  1873  in 
rejecting  the  electoral  votes  from  Louisiana  on  that  occasion.  (Doc 
ument  on  Electoral  Counts,  407.)  Anything  which  shows  a  clear 
•want  of  jurisdiction  in  the  returning  board  divests  its  acta  of  au  - 


thority,  and  makes  it  cease  to  be  the  representative  of  the  will  of 
the  State.  But  it  must  appear  that  there  was  a  clear  and  most  man 
ifest  want  of  authority  ;  for,  otherwise,  the  State  might  bo  deprived 
of  its  franchise  by  mere  inadvertence  of  its  agents,  or  an  honest  mis 
take  made  by  them  as  to  the  law. 

In  the  case  before  us,  the  board  had  ample  powers,  as  we  have 
seen.  Those  powers  have  frequently  been  sustained  by  the  supreme 
court  of  the  State.  The  law  of  Louisiana  not  only  gives  the  board 
power  to  canvass  the  returns,  but  to  reject  returns  whenever  in  their 
opinion,  upon  duo  examination  had,  they  are  satisfied  that  the  vote 
was  affected  by  violence  and  intimidation.  They  did  no  more  in  this 
case,  supposing  them  to  have  done  all  that  is  alleged.  It  is  said  that 
they  proceeded  without  jurisdiction,  because  they  did  not  canvass 
the  statements  of  the  commissioners  of  election,  but  only  the  ab 
stracts  of  the  parish  supervisors  of  registration.  It  is  not  denied  that 
they  had  both  and  all  of  these  statements  before  them.  If  they 
acted  wrongfully  in  relying  on  the  abstracts  and  not  examining  the 
original  statements,  it  may  have  been  misconduct  on  their  part,  but 
it  cannot  bo  said  that  they  were  acting  beyond  the  scope  of  their 
jurisdiction.  If,  in  a  single  case,  and  without  coming  to  an  erroneous 
result,  they  took  the  abstracts  instead  of  the  original  returns,  it 
would  bo  just  as  fatal  as  a  matter  of  jurisdiction  (and  no  more  so) 
as  if  they  relied  on  the  abstracts  in  all  cases.  It  would  only  be  error 
or  misconduct,  and  not  want  of  jurisdiction.  And  the  Houses  of  Con 
gress,  as  before  said,  are  not  a  court  of  errors  and  appeals,  for  the 
purpose  of  examining  regularity  of  proceedings. 

It  is  also  said  that  they  acted  without  jurisdiction  in  rejecting  re 
turns  without  having  before  them  certificates  of  violence  or  intimida 
tion.  It  is  admitted  that  they  took  a  largo  quantity  of  evidence 
themselves  on  the  subject;  but  "it  is  con  tended  that  they  had  no  juris 
diction  to  enter  upon  the  inquiry  without  a  supervisor's  certificate 
first  had.  Is  this  certain?  The  one  hundred  and  third  article  of  the 
constitution  made  it  the  duty  of  the  Legislature  to  pass  laws  regu 
lating  elections,  to  support  the  privilege  of  free  suffrage,  and  to  pro- 
hibibit  undue  influence  thereon  from  power,  bribery,  tumults,  or 
other  improper  influences.  The  election  law  was  passed  to  carry  out 
this  article.  As  one  means  of  currying  it  out  in  spirit,  the  returning 
board  were  prohibited  from  counting  a  return  if  it  was  accompanied 
by  a  certificate  of  violence,  until  they  had  investigated  the  matter 
by  examination  and  proof.  Recc-iviug  such  a  certificate  they  could 
not  count  a  return  if  they  wanted  to.  Now,  is  it  certain  that  under 
such  a  law,  if  the  board  had  knowledge  from  other  sources  than  a 
certificate  that  violence  and  intimidation  had  been  exercised  and  had 
produced  the  result,  they  could  not  inquire  into  it  ?  And  more,  is 
their  whole  canvass  to  be  set  aside,  because  they  made  an  investiga 
tion  under  such  circumstances?  There  is  no  other  tribunal  in  Lou 
isiana  for  making  it.  The  supreme  court  has  decided  that  the  courts 
cannot  go  behind  these  returns.  In  my  judgment  we  have  no  more 
authority  to  reject  their  canvass  for  this  cause  than  for  that  of  not 
using  the  original  statements.  It  is  as  if  a  court  having  jurisdiction 
of  a  cause  used  a  piece  of  evidence  on  the  trial  which  it  had  no  juris 
diction  to  take.  It  would  be  mere  irregularity  at  most,  and  would 
not  render  its  judgment  void  in  any  collateral  proceeding. 

I  cannot  bring  my  mind  to  believe  that  fraud  and  misconduct  on 
the  part  of  the  State  authorities,  constituted  for  the  very  purpose  of 
declaring  the  final  will  of  the  State,  is  a  subject  over  which  the  two 
Houses  of  Congress  have  jurisdiction  to  institute  an  examination. 
The  question  is  not  whether  frauds  ought  to  be  tolerated,  or  whether 
they  ought  not  to  be  circumvented ;  but  whether  the  Houses  of  Con 
gress,  in  exercising  their  power  of  counting  the  electoral  votes,  are 
intrusted  by  the  Constitution  with  authority  to  investigate  them. 
If  in  any  case  it  should  clearly  and  manifestly  appear,  in  an  unmis 
takable  manner,  that  a  direct  fraud  had  been  committed  by  a  return 
ing  board  in  returning  the  electors  they  did,  and  if  it  did  not  require 
an  investigation  on  the  part  of  the  two  Houses  to  ascertain  by  the 
taking  of  evidence  the  truth  of  the  case,  1  have  no  doubt  that  the 
Houses  might  rightfully  reject  the  vote — as  not  being  the  vote  of  the 
State.  But  where  no  such  manifest  fraud  appears,  and  fraud  is  only 
charged,  how  are  the  two  Houses  to  enter  upon  a  career  of  investiga 
tion  ?  If  the  field  of  inquiry  were  once  opened  where  is  its  boundary  ? 
Evidently  no  such  proceeding  was  in  the  mind  of  the  framers  of  the 
Constitution.  The  short  and  explicit  directions  there  given,  that  the 
votes  should  be  first  produced  before  the  Houses  when  met  for  that 
purpose,  and  that  "  the  votes  shall  then  be  counted,"  is  at  variance 
with  any  such  idea.  An  investigation  beforehand  is  not  authorized 
and  Avas  not  contemplated,  and  would  be  repugnant  to  the  limited 
and  special  power  given.  What  jurisdiction  have  the  Houses  on  the 
subject  until  they  have  met  under  the  Constitution,  except  to  pro 
vide  by  law  for  facilitating  the  performance  of  their  duties  I  An  in 
vestigation  afterward,  such  as  the  question  raised  might  and  fre 
quently  would  lead  to,  would  be  utterly  incompatible  with  the  per 
formance  of  the  duty  imposed. 

At  all  events,  on  one  or  two  points  I  am  perfectly  clear.  First,  that 
the  two  Houses  do  not  constitute  a  canvassing  board  for  the  purpose 
of  investigating  and  deciding  on  the  results  of  the  election  for  elect 
ors  in  a  State.  The  proposed  act  of  1800  carefully  excluded  any 
inquiry  into  the  number  of  votes  on  which  an  elector  was  elected ; 
and  I  think  it  cannot  well  be  pretended  that  the  Houses  have  power 
to  go  further  into  the  inquiry  than  was  proposed  by  that  bill. 
Secondly,  that  the  two  Houses  are  not  a  tribunal,  or  court  for  trying 


264 


ELECTORAL  COMMISSION. 


the  validity  of  the  election  returns  ami  sitting  in  judgment  on  the 
legality  of  the  proceedings  in  the  course  of  the  election.  The  two 
Houses,  with  only  their  constitutional  jurisdiction,  are  neither  of 
these  things;  though  as  to  the  election,  qualification,  and  returns  of 
their  own  members,  they  are  certainly  the  latter,  having  the  right  to 
judge  and  decide. 

I  have  thus  far  spoken  of  the  power  of  the  two  Houses  of  Congress 
as  derived  from  the  Constitution.  Whether  the  legislative  power  of 
the  Government  might  not,  by  law,  make  provision  for  an  investiga 
tion  into  frauds  and  illegalities,  I  do  not  undertake  to  decide.  It 
cannot  be  done,  in  my  judgment,  by  any  agency  of  the  Federal  Gov 
ernment  without  legislative  regulation.  The  necessity  of  an  orderly 
mode  of  taking  evidence  and  giving  opportunity  to  cross-examine 
witnesses  would  require  the  interposition  of  law.  The  ordinary  power 
of  the  two  Houses  as  legislative  bodies,  by  which  they  investigate 
facts  through  the  agency  of  committees,  is  illy  adapted  to  such  an 
inquiry. 

It  seems  to  me,  however,  the  better  conclusion,  that  the  jurisdiction 
of  the  whole  matter  belongs  exclusively  to  the  States.  Let  them  take 
care  to  protect  themselves  from  the  perpetration  of  frauds.  They 
need  no  guardians.  They  are  able,  and  better  able  than  Congress,  to 
create  every  kind  of  political  machinery  which  human  prudence  can 
contrive,  for  circumventing  fraud,  and  preserving  their  true  voice  and 
vote  in  the  presidential  election. 

In  my  judgment,  the  evidence  proposed  cannot  be  received. 

Then,  as  to  the  alleged  iueligibility  of  the  candidates.  First,  their 
alleged  ineligibility  under  the  laws  of  the  State,  I  think  we  have 
nothing  to  do  with.  It  has  been  imposed  for  local  reasons  of  State 
policy,  but  if  the  State  sees  fit  to  waive  its  own  regulations  on  this 
subject,  it  is  her  own  concern.  If  the  State  declares  that  no  person 
shall  hold  two  offices,  or  that  all  officers  shall  possess  an  estate  of  the 
value  of  $1,000,  or  imposes  any  other  qualification,  or  disqualification, 
it  is  for  the  State  to  execute  its  own  laws  in  this  behalf.  At  all 
events,  if  persons  are  appointed  electors  without  having  the  qualifi 
cations,  or  having  the  disqualifications,  and  they  execute  the  function 
of  casting  their  votes,  their  acts  cannot  be  revised  here. 

Two  of  the  electors,  however,  Levissee  and  Brewster,  are  alleged  to 
have  held  offices  of  trust  and  profit  under  the  United  States,  when 
the  election  was  held  on  the  7th  of  November.  It  is  not  alleged  that 
they  did  so  on  the  6th  of  December,  when  they  gave  their  votes. 
Being  absent  when  the  electoral  college  met,  their  places  were  de 
clared  vacant,  and  the  college  itself  proceeded  to  re-appoint  them 
under  the  law,  and  sent  for  them.  They  then  appeared  and  took  their 
seats.  So  that,  in  point  of  fact,  the  objection  does  not  meet  the  case, 
unless  their  being  Federal  office-holders  at  the  time  of  the  election 
affects  it. 

Though  not  necessary  to  the  decision  of  this  case,  I  have  re-exam 
ined  the  question  of  constitutional  iueligibility  since  the  Florida 
case  was  disposed  of,  and  must  say  that  I  am  not  entirely  satisfied 
with  the  conclusion  to  which  I  then  came,  namely,  that  if  a  disquali 
fied  elector  casts  his  vote  when  disqualified,  the  objection  cannot  be 
taken.  I  still  think  that  this  disqualification  at  the  time  of  his  elec 
tion  is  not  material,  if  such  disqualification  ceases  before  he  acts  as 
an  elector.  But,  as  at  present  advised,  I  am  inclined  to  the  opinion 
that  if  constitutionally  disqualified  when  he  casts  his  vote,  such  vote 
ought  not  to  be  counted. 

I  still  think,  as  I  thought  in  discussing  the  Florida  case,  that  the 
form  of  the  constitutional  prohibition  is  not  material ;  that  it  is  all 
one,  whether  the  prohibition  is  that  a  Federal  officer  shall  not  be  an 
elector,  or,  that  ho  shall  not  be  appointed  an  elector.  The  spirit  and 
object  of  the  prohibition  is  to  make  office-holding  under  the  Federal 
Government  a  disqualification.  That  is  all.  And  this  is  the  more 
apparent  when  we  recollect  the  reasons  for  it.  When  the  Constitution 
was  framed,  the  great  object  of  creating  the  office  of  electors  to  elect 
the  President  and  Vice-President  was  to  remove  this  great  duty  as  far 
as  possible  from  the  influence  of  popular  passion  and  prejudice,  and 
to  place  it  in  the  hands  of  men  of  wisdom  and  discretion,  having  a 
knowledge  of  public  affairs  and  public  men.  The  idea  was  that  they 
were  to  act  with  freedom  and  independence.  The  jealousy  which  was 
manifested  in  the  convention  against  the  apprehended  influence  and 
power  of  the  General  Government,  and  especially  of  the  legislative 
branch,  induced  the  prohibition  in  question.  It  was  feared  that  the 
members  of  the  Houses  of  Congress  and  persons  holding  office  under 
the  Government  would  bo  peculiarly  subject  to  these  influences  in 
exorcising  the  power  of  voting  for  Chief  Magistrate.  It  was  not  in 
the  process  of  appointment  that  this  influence  was  dreaded  ;  but  in 
the  effect  it  would  have  on  the  elector  himself  in  giving  his  vote. 

It  seems  to  me,  therefore,  that  if  a  person  appointed  an  elector  has 
no  official  connection  with  the  Federal  Government  when  he  gives 
his  vote,  such  vote  cannot  be  justly  excepted  to.  And  that  substan 
tial  effect  is  given  to  the  constitutional  disqualification  if  the  elect 
oral  vote  given  by  such  officer  is  rejected.  And  my  present  impres 
sion  is  that  it  should  be  rejected. 

Circumstances,  it  is  true,  have  greatly  changed  since  the  Constitu 
tion  was  adopted.  Instead  of  electors  being,  as  it  was  supposed  they 
•would  be,  invested  with  power  to  act  on  the  dictates  of  their  own 
judgment  and  discretion  in  choosing  a  President,  they  have  come  to 
be  mere  puppets,  elected  to  express  the  preordained  will  of  the  polit 
ical  party  that  elects  them.  The  matter  of  iueligibility  has  come  to 
be  really  a  matter  of  no  importance,  except  as  it  still  stands  in  the 


Constitution,  and  is  to  bo  interpreted  as  it  was  understood  when  the 
Constitution  was  adopted.  Hence  we  must  ascertain,  if  we  can,  what 
was  its  original  design  and  meaning,  without  attempting  to  stretch 
or  enlarge  its  force. 

[It  may  be  proper  that  I  should  here  add,  that  I  concede  that  there 
is  great  force  in  what  is  urged  by  other  members  of  the  Commission 
respecting  the  difficulty  which  still  remains,  of  the  two  Houses,  when 
assembled  to  count  the  votes,  undertaking  an  investigation  of  facts 
to  determine  a  question  of  ineligibility,  which  might  be  extended  in 
such  a  manner  as  materially  to  interfere  with  the  main  duty  for 
which  they  assemble.  This  was  probably  seen  when  the  law  of  1800 
was  proposed  for  the  purpose  of  having  such  matters  determined  by 
a  grand  committee  preparatory  to  the  meeting  of  the  two  Houses  in 
joint  convention.  The  passage  of  some  law  regulating  the  matter  is 
on  all  accounts  desirable.] 


THE  OKEGON  CASE. 
Statement. 

Tho  laws  of  Oregon  do  not  provide  for  a  board  of  State  canvassers,  but  direct  as 
follows  -. 

-  "  It  shall  be  the  duty  of  the  secretary  of  state,  in  presence  of  the  governor,  to 
proceed  within  thirty  days  after  tho  election,  and  sooner,  if  the  returns  bo  all  re 
ceived,  to  canvass  tlio  votes  given  for  secretary  and  treasurer  of  state,  State  printer, 
justices  of  tho  supremo  court,  members  of  Congress,  and  district  attorneys." 

And  then,  with  regard  to  State  officers,  directs:  "The  governor  shall  grant  a 
certificate  of  election' to  the  person  having  the  highest  number  of  votes,  and  shall 
also  issue  a  proclamation  declaring  the  election  of  such  person." 

But  with  regard  to  presidential  electors,  it  directs :  "  Tho  votes  for  the  electors 
shall  bo  given,  received,  returned,  and  canvassed  as  the  same  are  given,  returned, 
and  canvassed  for  members  of  Congress.  The  secretary  of  state  shall  prepare  two 
lists  of  tho  names  of  tho  electors  elected,  and  affix  tho  seal  of  tho  State  to  tho  same. 
Such  lists  shall  bo  signed  by  the  governor  and  secretary,  and  by  tho  latter  deliv 
ered  to  tho  college  of  electors  at  the  hour  of  their  meeting  on  such  first  Wednesday 
of  December." 

AVhen  the  electors  are  mot  on  tho  day  for  casting  their  votes,  tho  law  directs  :  "If 
there  shaU  bo  any  vacancy  in  tho  office  of  an  elector,  occasioned  by  death,  refusal 
to  act,  neglect  to  attend,  or  otherwise,  tho  electors  present  shall  immediately  pro 
ceed  to  lill,  by  viva  vocc  and  plurality  of  votes,  such  vacancy  in  the  electoral  col 
lege." 

Watts,  one  of  tho  electors  having  tho  highest  number  of  votes,  was  a  postmaster 
at  tho  time  of  the  election,  November  7,  1876,  but  resigned  that  office  during  tnb 
month. 

On  tho  4th  of  December,  tho  secretary  of  state,  in  presence  of  the  governor,  can 
vassed  the  votes  for  presidential  electors,  made  a  statement  of  the  result,  authenti 
cated  it  under  the  seal  of  tho  State,  and  filed  it  in  his  office.  Tho  following  is  a 
copy  of  this  document : 

Abstract  of  votes  cast  at  the  presidential  election  held  in  the  State  of  Oregon  November 
7,  1876,  for  presidential  electors. 


,a 

j 

m 

f 

B 

a 

3 

<£ 

a 

2 

P. 

a 

1 

Counties. 

0 

t 

3 

3 

2 
a 

a 
hi 

| 

& 

a 

M 

_j 

W 

fc 

d 

b 

a 

-<i 

« 

O 

tf 

O 

5 

p 

^ 

^> 

jxj 

H 

F 

P 

PH 

pq 

318 

311 

319 

549 

550 

549 

1 

1 

i 

615 

615 

615 

567 

567 

567 

77 

77 

77 

Clackamas  .  .. 

941 

950 

9.X) 

721 

724 

724 

17 

17 

17 

432 

432 

432 

386 

3H5 

386 

Columbia  

157 

156 

157 

179 

179 

179 

22 

22 

22 

571 

571 

571 

512 

516 

515 

131 

131 

131 

124 

121 

124 

3 

3 

3 

Douglas  

1,  002 

1,C02 

1,  003 

847 

«47 

847 

43 

43 

43 

Grant  

3lo 

314 

316 

279 

279 

277 

3 

3 

3 

Jackson  

585 

585 

5riC 

827 

840 

840 

5 

5 

5 

Josephine  

209 

200 

209 

252 

252 

252 

4 

4 

4 

949 

949 

949 

946 

946 

940 

33 

33 

33 

173 

173 

173 

258 

25S 

258 

1,  324 

1,  3'.M 

1,  404 

1.404 

1,404 

140 

141 

140 

1,780 

1,  782 

1,  7»1 

1,  154 

1,154 

1,155 

21 

23 

W 

Multiiomah  -- 

2,124 

2,  122 

2,  122 

1,  525 

1,  528 

1,  525 

2 

2 

2 

Polk 

607 

COO 

6(18 

542 

542 

542 

54 

55 

54 

Tillamook  .  .  . 

119 

119 

110 

76 

76 

76 

1 

1 

i 

Umatilla  

486 

486 

486 

742 

742 

742 

42 

42 

42 

366 

366 

360 

520 

525 

32 

32 

3u2 

491 

493 

621 

C21 

619 

69'J 

698 

693 

423 

424 

423 

Yamhilf.  

811 

810 

674 

674 

674 

6 

6 

6 

Total  .. 

15,  206 

15,  206 

15,  214 

14,136 

14,  157 

14,  149 

509 

510 

507 

Simpson,  1 ;  Gray,  1 ;  Saulsbury,  1 ;  McDowell,  1. 

SALEM,  STATH  OK  OHEGON  : 

I  hereby  certify  that  tho  foregoing  tabulated  statement  is  the  result  of  tho  vote 
cast  for  presidential  electors  at  a  general  election  held  in  and  for  tho  State  of  Oregon 
on  tho  7th  day  of  November,  A.  D.  1876,  as  opened  and  canvassed  in  the  presence 
of  his  excellency  L.  F.  Grover,  governor  of  said  State,  according  to  law,  on  the  4th 
day  of  December,  A.  D.  1876,  at  two  o'clock  p.  m.  of  that  day,  by  the  secretary  of 
state. 

[SEAL.]  S.  F.  CnADWICK, 

Secretary  of  State  of  Oregon. 

The  statute  of  Oregon  declares,  "  in  all  elections  in  this  State  tho  person  having 
the  highest  nmnber  of  votes  for  any  office  sluill  be  deemed  to  have  been  elected." 

On  tho  6th  of  December,  when  the  electors  met  to  give  their  votes  for  President 
and  Vice-President  Watts  resigned  as  elector,  and  was  re-appointed  by  Odell  and 
Cartwright  to  fill  tho  vacancy.  The  governor  refused  them  tho  usual  certificate, 
but  certified  that  Odell,  Cartwright,  and  Crouin  received  tho  highest  number  of  voto* 


ELECTORAL  COMMISSION. 


cast  for  persons  eligible  under  the  Constitution  of  the  United  States,  and  declared 
them  duly  ducted.  As  Odell  and  Cartwright  refused  to  meet  with  Cronin,  ho  as 
sumed  to  fill  two  vacancies.  This  proceeding  of  the  governor  and  of  Croniu  raised 
the  principal  question  in  the  Oregon  case. 

FEBRUARY  23,  1877. 

Mr.  Commissioner  BEADLEY  said : 

This  case  differs  from  tho  two  cases  already  heard  in  this:  By  the 
laws  both  of  Florida  and  Louisiana,  tho  final  determination  of  the  re 
sult  of  the  election  was  to  be  made  by  a  board  of  canvassers  invested 
with  power  to  judge  of  tho  local  returns  and  to  reject  them  for  cer 
tain  causes  assigned.  In  Oregon,  no  such  board  exists.  The  general 
canvass  for  the  State  is  directed  to  be  made  by  the  secretary  of  state, 
in  presence  of  the  governor,  from  the  abstracts  sent  to  him  by  the 
county  clerks.  This  canvass  having  been  made,  the  result  is  declared 
by  the  law.  The  canvass  is  the  last  act  by  which  the  election  is  de 
cided  and  determined.  This  canvass  was  made  in  the  present  case 
on  the  4th  day  of  December,  (1876;)  the  result  was  recorded  in  a 
statement  in  writing  made  by  the  secretary  and  filed  by  him  in  his 
office.  This  statement  or  abstract  thus  became  the  record  evidence 
of  tho  canvass.  It  remains  in  the  secretary's  office  to-day  as  the  final 
evidence  and  determination  of  the  result.  We  have  before  us,  under 
the  great  seal  of  the  State,  a  copy  of  this  statement,  which  shows  the 
result  to  have  been  a  clear  plurality  of  over  a  thousand  votes  in  favor 
of  the  three  electors,  Odell,  Cartwright,  and  Watts ;  and  there  is 
added  thereto  a  list  of  the  votes. 

This  document,  after  exhibiting  a  tabulated  statement  of  the  votes 
given  for  each  candidate  in  each  county  of  the  State,  footing  up  for 
Odell,  15,206;  Watts,  15,206;  Cartwright,  15,214;  Klippel,  14,136; 
Croniu,  14,157  ;  Laswel],  14,149,  and  a  few  scattering  votes,  was  cer 
tified  and  authenticated  at  the  end,  aa  follows : 
SALIOM,  STATE  OF  OREGON  : 

I  hereby  certify  that  tho  foregoing  tabulated  statement  is  tho  result  of  the  vote 
cast  for  presidential  electors  at  a  general  election  held  in  and  for  the  State  of  Ore 
gon,  on  the  7th  day  of  November,  A.  D.  187C,  as  opened  and  canvassed  in  the  pres 
ence  of  his  excellency  L.  F.  Grovcr,  governor  of  said  State,  according  to  law,  on 
the  4th  day  of  December,  A.  D.  187(i,  at  two  o'clock  p.  m.  of  that  day,  by  the  sec 
retary  of  state. 

ISKAU]  S.  F.  CHAD  WICK:, 

Secretary  of  State  of  Oregon. 

This  document,  with  this  certificate  and  authentication  upon  it, 
was  filed  by  the  secretary  in  his  office  on  the  4th  day  of  December. 

To  tho  exemplified  copy  of  it,  which  was  sent  to  the  President  of 
the  Senate,  (and  which  we  have  before  us,)  is  added  another  docu 
ment,  entitled  "  List  of  votes  cast  at  an  election  for  electors  of  Presi 
dent  and  Vice-President  of  the  United  States  in  the  State  of  Oregon, 
held  on  the  7th  day  of  November,  1870,"  which  contains  tho  votes 
given  for  each  candidate,  (the  same  as  in  the  canvass,)  written  out  in 
words  at  length,  and  certified  by  the  secretary  of  state,  also  under  the 
great  seal  of  the  State,  to  be  the  entire  vote  cast  for  each  and  all  per 
sons  for  the  office  of  electors  as  appears  by  the  returns  of  said  elec 
tion  on  tile  in  his  office. 

Having  made  this  canvass,  recorded  it,  and  filed  it  in  his  office,  the 
secretary  of  state  was  functus  officio  with  regard  to  the  duty  of  ascer 
taining  the  result  of  the  election.  He  could  not  change  it ;  he  could 
not  tamper  with  it  in  any  way.  By  his  act,  and  by  this  record  of  his 
act,  the  ascertainment  of  the  election  in  Oregon  was  closed.  Its  laws 
give  no  revisory  power  to  any  other  functionary ;  and  give  none  to 
the  secretary  himself.  And  this,  as  we  have  seen,  was  done  and  com 
pleted  on  the  4th  day  of  December,  at  two  o'clock  in  the  afternoon, 
in  the  presence  of  the  governor,  according  to  the  law  of  Oregon. 

Now,  what  is  the  decree  of  the  law  on  this  transaction  ?  It  is  clear 
and  unmistakable : 

In  all  elections  in  this  State  the  person  having  the  highest  number  of  votes  for 
any  office  shall  be  deemed  to  be  elected. 

It  is  not  left  for  any  functionary  to  say  that  any  other  person  shall 
be  deemed  to  be  elected.  No  discretion,  no  power  of  revision  is  given 
to  any  one,  except  as  the  general  law  of  the  State  has  given  to  the 
judicial  department  power  to  investigate  the  right  of  persons  elected 
to  hold  the  offices  to  which  they  have  been  elected. 

Now,  what  is  the  next  step  to  be  performed  ?   It  is  this : 

The  secretary  of  state  shall  prepare  two  lists  of  tho  names  of  the  electors  elected, 
and  aflix  the  seal  of  tho  State  to  tho  same.  Such  lists  shall  bo  signed  by  tho  gov 
ernor  and  secretary,  and  by  tho  latter  delivered  to  tho  college  of  electors  at  the 
Lour  of  their  meetiiig  on  such  first  Wednesday  of  December. 

This  direction  seems  to  bo  intended  as  a  compliance  with  the  act  of 
Congress  of  1792.  It  is  true  that  this  act  requires  three  lists  instead 
of  two  to  be  delivered  to  the  electors  ;  but  the  number  required  by 
the  State  law  was  probably  an  inadvertence.  Be  this,  however,  as  it 
may,  what  names  was  the  secretary  required  by  law  to  insert  in  his 
certificate  f 

He  made  out  his  certificate  on  the  6th  day  of  December,  two  days 
after  his  canvass  had  been  completed,  recorded,  and  deposited  in  the 
public  archives.  In  making  this  certificate  he  was  performing  a  mere 
ministerial  duty.  It  was  his  clear  duty  to  insert  in  his  certificate  the 
names  of  the  persons  whom  the  law  declared  to  be  elected.  Doing 
otherwise  was  not  only  a  clear  violation  of  duty,  but  he  made  a  state 
ment  untrue  in  fact ;  and  the  governor  putting  his  name  to  the  cer 
tificate  joined  in  that  misrepresentation.  It  may  not  have  been  an 
intended  misrepresentation,  and  the  use  of  the  word  "eligible"  may 
have  been  thought  a  sufficient  qualification ;  nevertheless  it  was  a 
misrepresentation  in  fact  and  in  law,  and  it  all  appears  from  the  rec 
ord  itself.  It  needs  no  extrinsic  evidence. 


But  it  is  said  that  tho  governor  has  the  power  to  disregard  the  can 
vass  and  to  reject  an  elector  whom  he  is  satisfied  is  ineligible.  There 
is  no  law  of  Oregon  which  gives  him  this  power.  In  my  judgment, 
it  was  a  clear  act  of  usurpation.  It  was  tampering  with  an  election 
which  the  law  had  declared  to  be  closed  and  ascertained. 

It  is  said,  however,  that  he  may  refuse  a  commission  to  an  ineligi 
ble  person  elected  to  a  State  office.  If  so,  it  does  not  decide  this  case. 
And  it  seems  to  me  that  such  an  act,  even  with  regard  to  State  offi 
cers,  would  be  an  encroachment  on  tho  judicial  power.  A  case  is  re 
ferred  to  as  having  been  decided  in  Oregon  in  which  the  appointment 
by  the  governor  to  fill  a  vacancy  in  a  State  office  caused  by  the  incum 
bent  being  appointed  to  a  United  States  office  was  sustained.  But 
surely  the  judgment  in  that  case  must  have  been  based  on  the  fact 
that  there  was  a  vacancy  and  not  on  the  fact  that  the  governor  as 
sumed  to  judge  whether  there  was  a  vacancy  or  not.  His  executive 
act,  whether  in  determining  his  own  action  he  had  the  right  to  decide 
the  question  of  eligibility  or  not,  was  valid  or  not  according  as  the 
very  truth  of  the  fact  was. 

But  in  the  case  before  us  he  had  a  mere  ministerial  act  to  perform. 
He  had  no  discretionary  power. 

If  any  one  could  have  taken  notice  of  the  question  of  supposed  in- 
eligibility,  it  was  the  secretary  of  state  when  making  his  canvass. 
Had  he  taken  it  upon  himself  to  throw  out  the  votes  given  for  Watts, 
he  would  have  had  a  much  more  plausible  ground  of  justification  for 
his  act  than  the  governor  had,  to  whom  no  power  is  given  on  the  sub 
ject. 

But  it  is  said  no  matter  whether  the  governor  and  secretary  acted 
right  or  wrong ;  they  were  tho  functionaries  designated  for  giving 
final  expression  to  tho  will  of  the  State,  and  their  certificate  must  bo 
received  as  such,  under  the  decision  in  the  cases  of  Florida  and  Lou 
isiana.  To  this  view,  however,  there  is  a  conclusive  answer.  As  I 
said  before,  the  certificate  to  be  given  by  the  secretary  and  governor 
to  these  electors  was  not  intended  as  any  part  of  the  machinery  for 
ascertaining  the  result  of  the  election ;  but  as  a  mere  certificate  of 
the  fact  of  election,  as  a  credential  to  bo  used  by  the  electors  in  act 
ing  as  such  and  transmitting  their  votes  to  the  President  of  the  Son- 
ate  of  the  United  States,  as  required  by  the  act  of  Congress  of  1792. 
As  such  it  is  prima  facie  evidence,  it  is  true;  but  no  person  has  con 
tended  that  it  cannot  be  contradicted  and  shown  to  be  untrue,  es 
pecially  by  evidence  of  equal  dignity.  We  did  not  so  decide  in 
the  other  cases.  We  held  that  the  final  decision  of  the  canvass  by 
the  tribunal  or  authority  constituted  for  that  purpose  could  not  be 
revoked  by  tho  two  Houses  of  Congress,  by  going  into  evidence  be 
hind  their  action  and  return. 

The  only  remaining  question  is,  whether  there  was  a  vacancy  in 
the  college  at  the  time  when  Odell  and  Cartwright  assumed  to  fill  a 
vacancy  on  tho  6th  day  of  December,  1876.  It  seems  to  me  that  there 
was,  whether  there  was  a  failure  to  elect  on  account  of  the  ineligi- 
bility  of  Watts,  or  on  account  of  his  resignation  afterward. 

It  is  agreed  by  a  large  majority  of  tho  Commission  that  Cronin  was 
not  elected.  Some  of  this  majority  take  the  ground  that  Watts  was 
duly  elected,  whatever  effect  his  ineligibijity,  had  it  continued,  might 
have  had  on  his  vote.  Others  take  the  ground  that  there  was  no  elec 
tion  of  a  third  elector.  It  seems  to  me  that  it  makes  no  difference  in 
this  case  which  of  these  views  is  the  correct  one ;  there  was  a  clear 
vacancy  in  either  case. 

The  act  of  Congress  of  1845  declares  that  "  each  State  may  by  law 
provide  for  the  filling  of  any  vacancies  which  may  occur  in  its  col 
lege  of  electors  when  such  college  meets  to  give  its  electoral  vote ;" 
and  also,  "  that  whenever  any  State  has  held  an  election  for  the  pur 
pose  of  choosing  electors,  and  has  failed  to  make  a  choice  on  tho  day 
prescribed  by  law,  the  electors  may  be  appointed  on  a  subsequent  day 
in  such  a  manner  as  the  Legislature  of  such  State  may  direct." 

The  first  contingency  would  occur  when  some  of  the  electors  were 
elected  and  could  meet  and  fill  any  vacancy  in  their  number.  The 
second  contingency  would  occur  when  no  electors  were  appointed, 
and  therefore  no  meeting  could  be  held.  It  is  evident  that  these  are 
two  very  different  cases ;  and  that  tho  one  before  us  does  not  belong 
to  the  latter,  but  to  the  former.  It  is  the  difference  between  a  college 
which  is  not  full,  and  no  college  at  all.  In  Oregon,  according  to  the 
exigency  supposed,  the  case  belonged  to  that  of  a  vacancy  under  tho 
act  of  1845. 

The  act  of  Oregon  in  relation  to  vacancies  in  the  electoral  college 
was  evidently  passed  in  view  of  the  act  of  Congress  upon  which  it 
was  based  ;  and  its  terms  are  so  broad  and  comprehensive  that  I  can 
not  doubt  that  it  was  intended  to  apply  to  every  case  of  vacancy. 
The  words  are  that  "  if  there  shall  be  any  vacancy  in  the  office  of  an 
elector,  occasioned  by  death,  refusal  to  act,  neglect  to  attend,  or  other 
wise,  the  electors  present  shall  immediately  proceed  to  fill,"  &c.  This 
clearly  covers  every  supposablo  case,  and  must  be  intended  to  be  as 
broad  as  the  corresponding  section  of  the  act  of  Congress.  It  is  more 
general  in  its  terms  than  the  act  relating  to  vacancies  in  State  offices, 
which  specifies  only  certain  classes  of  cases. 

As  the  electors  Odell  and  Cartwright  filled  the  vacancy  in  a  regu 
lar  manner,  I  cannot  avoid  the  conclusion  that  they,  together  with 
Watts,  were  the  true  electors  for  the  State  of  Oregon  on  the  6th  day 
of  December,  and  that  their  votes  ought  to  be  counted. 

Their  credentials  are  not  signed  by  the  governor,  it  is  true ;  but 
that  is  not  an  essential  thing,  and  was  not  their  fault.  They  have 
presented  the  records  of  the  State  found  in  its  archives  ;  and  these 


ELECTORAL  COMMISSION. 


show  that  the  act  of  the  governor  was  grossly  wrong ;  ami  they  have 
also  presented  the  certificate  of  the  secretary  of  state  under  the  great 
seal  of  the  State,  conclusively  showing  their  election.  They  have 
also  shown  by  their  own  affidavit,  that  they  applied  to  the  governor 
for  his  certificate  and  that  he  refused  it.  I  think  their  credentials, 
under  the  circumstances,  are  sufficient. 

It  is  urged  that  the  distinction  made  between  this  case  and  that  of 
Florida  and  Louisiana  is  technical  and  will  not  give  public  satisfac 
tion.  My  belief  is  that  when  the  public  come  to  understand  (as  they 
will  do  in  time)  that  the  decision  come  to  is  founded  on  the  Consti 
tution  and  the  laws,  they  will  be  better  satisfied  than  if  we  should  at 
tempt  to  follow  the  clamor  of  the  hour.  The  sober  second  thought  of 
the  people  of  this  country  is  in  general  correct.  But  while  the  pub 
lic  satisfaction  is  always  desirable,  it  is  a  poor  method  of  ascertain 
ing  the  law  and  the  truth  to  be  alert  in  ascertaining  what  are  the 
supposed  wishes  of  the  public.  And  as  to  deciding  the  case  on  tech 
nicalities,  I  do  not  know  that  technicalities  are  invoked  on  the  one 
side  more  than  on  the  other.  In  drawing  the  true  boundary  line  be 
tween  conflicting  jurisdictions  and  establishing  certain  rules  for  just 
decision  in  such  cases  as  those,  it  is  impossible  to  avoid  a  close  and 
searching  scrutiny  of  written  constitutions  and  laws.  The  weight  due 
to  words  and  phrases  has  to  bo  observed,  as  well  as  the  general  spirit 
and  policy  of  public  documents.  Careful  and  exact  inquiry  becomes 
a  necessity.  And  in  such  a  close  political  canvass  as  this,  in  which 
the  decision  of  a  presidential  election  may  depend  not  only  on  a  single 
electoral,  but  a  single  individual  vote,  the  greatest  strain  is  brought 
to  bear  on  every  part  of  our  constitutional  machinery,  and  it  is  im 
possible  to  avoid  a  close  examination  of  every  part.  There  is  a  natural 
fondness  for  solving  every  doubt  on  some  "broad  and  general  view" 
of  the  subject  in  hand.  "  Broad  and  general  views"  when  entirely 
sound  and  clearly  applicable  are  undoubtedly  to  bo  preferred  ;  but  it 
is  extremely  easy  to  adopt  broad  and  general  views  that  will  if  ad 
hered  to  carry  us  into  regions  of  error  and  absurdity.  The  only  rule 
that  is  always  and  under  all  circumstances  reliable  is  to  ascertain,  at 
whatever  cost  of  care  and  pains,  the  true  and  exact  commands  of  the 
Constitution  and  the  laws,  and  implicitly  to  obey  them. 


SOUTH  CAROLINA  CASE. 

Mr.  Commissioner  BRADLEY  said : 

It  is  not  pretended  that  the  votes  of  the  Tilden  electors,  as  pre 
sented  in  Certificate  No.  2,  in  this  case,  are  legal.  The  entire  contro 
versy  arises  upon  the  objections  to  Certificate  No.  1,  containing  the 
voles  for  Hayes  and  Wheeler. 

These  objections  are — 

First.  That  the  November  election  in  South  Carolina  was  void  be 
cause  the  Legislature  of  that  State  has  never  passed  a  registration 
law  as  required  by  the  constitution  of  the  State,  article  8,  section 
3,  which  is  as  follows : 

It  shall  bo  the  duty  of  the  General  Assembly  to  provide  from  time  to  time  for 
the  registration  of  all  electors.  . 

This  constitution  was  passed  in  1868,  and  from  that  time  to  this  elec 
tions  have  been  held,  and  the  various  elective  officers  of  the  State,  as 
well  as  the  office  of  Representatives  in  Congress,  have  boon  filled 
without  a  registration  law  having  been  passed.  If  the  effect  of  the 
omission  has  been  to  render  all  these  elections  absolutely  void,  South 
Carolina  has,  for  some  years,  been  without  any  lawful  government. 
But  if  the  effect  has  only  been  to  render  the  elections  voidable,  with 
out  affecting  the  validity  of  the  acts  of  the  government  in  its  various 
departments,  as  a  government  dc  facto,  then  the  election  of  presiden 
tial  electors,  and  their  giving  their  votes,  have  the  same  validity  as 
all  other  political  acts  of  that  body-politic.  But,  in  my  opinion,  the 
clause  of  the  constitution  in  question  is  only  directory,  and  cannot 
affect  the  validity  of.  elections  in  the  State,  much  less  the  official  acts 
of  the  officers  elected.  The  passage  of  a  registration  law  was  a  legis 
lative  duty  which  the  members  on  their  oaths  wore  bound  to  perform. 
But  their  neglect  to  perform  it  ought  not  to  prejudice  the  people  or 
the  State. 

The  objection  that  it  does  not  appear  by  the  certificate  that  the 
electors  voted  by  ballot,  or  that  they  took  an  oath  of  office  as  required 
of  all  officers  in  South  Carolina,  are  so  formal  and  manifestly  frivo 
lous,  that  I  shall  not  discuss  them.  The  presumption  is  that  all  due 
formalities  were  complied  with. 

The  only  objections  of  any  weight  are  those  which  charge  that 
there  was  such  anarchy  and  disturbance  in  the  State  during  the 
elections,  and  such  interference  of  United  States  troops  and  others 
therewith,  that  no  valid  election  was  hold  in  the  State,  and  it  is  im 
possible  to  know  what  the  will  of  the  State  was.  This  is  placing  the 
objections,  and  the  offer  of  proof  to  support  them,  in  their  strongest 
light. 

I  think  it  unquestionably  true  that  such  a  state  of  things  as  the 
objection  contemplates  ought  to  exclude  any  vote  purporting  to  come 
from  the  State ;  for  no  such  vote  can  be  regarded  as  expressing  the 
will  of  the  State.  But  that  is  not  the  only  question  to  be  considered. 

The  first  and  great  question  is  as  to  the  constitutional  power  of 
the  two  Houses  of  Congress,  when  assembled  to  count  the  votes  for 
President  and  Vice-President,  to  institute  an  investigation  by  evidence 
such  as  is  necessary  to  determine  the  facts  to  be  proved.  This  power 


of  canvassing  the  electoral  votes  is  constantly  confounded  with  that 
of  canvassing  the  votes  by  which  the  electors  themselves  were 
elected — a  canvass  with  which  Congress  has  nothing  to  do.  This 
belongs  to  the  jurisdiction  of  the  States  themselves,  and  not  to  Con 
gress.  All  that  Congress  has  to  do  with  the  subject  is  to  ascertain 
whether  the  State  has  or  has  not  appointed  electors — an  act  of  the 
State  which  can  only  be  performed  by  and  through  its  own  consti 
tuted  authorities. 

It  seems  to  be  also  constantly  overlooked  or  forgotten  that  the 
two  Houses,  in  their  capacity  of  a  convention  for  counting  the  elect 
oral  votes,  have  only  a  special  and  limited  jurisdiction.  They  are  not 
at  all  invested  with  that  vast  and  indefinite  power  of  inquisition 
which  they  enjoy  as  legislative  bodies.  Until  met  for  the  specific 
purpose  of  the  count,  they  have  no  power  over  the  subject,  except  to 
pass  such  laws  as  it  is  competent  for  the  legislative  branch  of  the 
Government  to  pass.  The  electoral  votes  are  in  sealed  packages  over 
which  the  two  Houses  have  no  control.  They  have  not,  constitution 
ally,  any  knowledge  of  these  until  they  are  opened  in  their  presence. 
Their  jurisdiction  over  the  subject  of  the  count,  and  the  votes,  and 
the  appointment  of  electors  commences  at  that  moment.  They  have 
no  power  before  this  to  make  iuvestigatiousaffectiiig  the  count.  Could 
it  have  been  in  the  contemplation  of  the  Constitution  that  the  two 
Houses,  after  commencing  the  count,  should  institute  such  an  inves 
tigation  as  the  objectors  propose,  involving  (as  it  would  be  likely 
to  do)  many  weeks  in  the  process  ?  It  seems  to  me  impossible  to  come 
to  such  a  conclusion. 

When  the  state  of  things  in  a  State  is  of  such  a  public  character  as 
to  bo  within  the  judicial  knowledge  of  the  two  Houses,  of  course  they 
may  take  notice  of  it  and  act  accordingly,  as  was  done  in  the  times 
of  secession  and  the  late  civil  war,  oraa  might  have  been  done  at  any 
time,  so  long  as  the  seceding  States  were  not  in  harmonious  relations 
with  the  General  Government.  But  when  a  State  is  in  the  enjoy 
ment  of  all  those  relations,  when  it  is  represented  in  both  Houses  of 
Congress,  is  recognized  by  the  other  departments  of  the  Government, 
and  is  known  to  have  a  government  republican  in  form,  in  other  words, 
when  all  the  public  relations  of  the  State  are  the  same  as  those  of  all 
other  States,  how  can  the  two  Houses  in  convention  assembled  (and 
assembled  for  such  a  special  purpose)  go  into  an  investigation  for  the 
purpose  of  ascertaining  the  exact  state  of  things  within  the  State,  so 
as  to  decide  the  question  (perhaps  a  very  nice  question  to  bo  decided) 
whether  the  tumults  and  disorders  existing  therein  at  the  time  of  the 
election,  or  the  presence  of  the  troops  sent  thereby  the  President  for  the 
preservation  of  the  public  peace,  had  such  an  influence  as  to  deprive 
the  State  of  its  autonomy  and  the  power  of  expressing  its  will  in  the 
appointment  of  electors  ?  Such  an  investigation,  or  one  of  any  such 
character  and  extent,  was  surely  never  contemplated  to  be  made 
while  the  votes  were  being  counted. 

That  South  Carolina  is  a  State  and  that  she  has  a  republican  form 
of  government,  are  public  facts  of  which  the  two  Houses  (and  we  in 
their  stead)  must  take  judicial  notice.  We  know  that  she  is  such  a 
State.  That  she  is  capable  of  preserving  the  public  order,  either  with 
or  without  the  aid  of  t  he  Federal  an  thorily ;  and  that  the  executive  in 
terference,  if  made  at  all,  was  made  in  the  exercise  of  his  proper  au 
thority  for  the  reasons  sot  forth  in  his  public  proclamations  and  or 
ders,  are  facts  to  bo  presumed.  At  all  events  the  two  Houses,  under 
their  special  authority  to  count  the  electoral  votes,  are  not  competent 
to  take  evidence  to  prove  the  contrary. 

I  do  not  doubt  that  Congress,  in  its  legislative  capacity,  with  the 
President  concurring,  or  by  a  two-thirds  vote  after  his  veto,  could 
pass  a  law  by  which  investigation  might  be  had  in  advance,  under 
proper  regulations  as  to  notice  and  evidence  and  the  cross-examina 
tion  of  witnesses ;  the  results  of  which  could  be  laid  before  the  two 
Houses  at  their  meeting  for  the  count  of  votes,  and  could  be  used  by 
them  as  a  basis  for  deciding  whether  such  a  condition  of  anarchy, 
disturbance,  and  intimidation  existed  in  a  State  at  the  time  of  the 
election  of  its  electors  as  to  render  its  vote  nugatory  and  liable  to 
be  rejected.  But  without  the  existence  of  a  law  of  this  sort,  it  is, 
in  my  judgment,  impracticable  and  unconstitutional  for  the  two 
Houses  to  enter  upon  such  an  inquiry.  The  investigations  made 
by  legislative  committees,  in  tho  loose  manner  in  which  they  are 
usually  made,  are  not  only  not  adapted  to  the  proper  ascertainment 
of  the  truth  for  such  a  purpose,  but  are  totally  unauthorized  by  the 
Constitution.  As  methods  of  inquiry  for  ordinary  legislative  pur 
poses,  or  for  tho  purpose  of  laying  the  foundation  of  resolutions  for 
bringing  in  an  impeachment  of  tho  President  for  unconstitutional 
interference,  of  course  they  are  competent ;  but  not  for  the  purpose 
of  receiving  or  rejecting  tho  vote  of  a  State  for  tho  presidential 
office.  They  are  not  made  such  by  any  constitutional  provision  or 
by  any  law.  Legislation  may  bo  based  on  tho  private  knowledge  of 
members,  and  a  resolution  to  bring  in  an  impeachment  may  rest  on 
cx-parte  affidavits  or  on  general  information  ;  and,  therefore,  the  evi 
dence  taken  by  a  committee  cannot  bo  deemed  incompetent  for  such 
a  purpose  ;  but  is  often  of  great  service  in  giving  information  to  the 
Houses  as  legislative  bodies,  and  to  the  House  of  Representatives  as 
the  grand  inquest  of  tho  nation.  But  the  decision  to  receive  or  re 
ject  the  vote  of  a  State  is  a  final  decision  on  the  right  of  the  State 
in  that  behalf,  and  one  of  a  most  solemn  and  delicate  nature,  and 
cannot  properly  bo  based  on  the  depositions  of  witnesses  gathered 
in  tho  drag-net  of  a  congressional  committee. 

For  these  reasons  I  am  clear  that  the  evidence  offered  in  support  of 


ELECTORAL  COMMISSION. 


•*•  V 


the  objections  made  to  the  electoral  votes  of  South  Carolina  cannot 
be  received. 

These  are,  in  brief,  the  views  which  I  entertain  in  reference  to  this 
case ;  and  under  them  I  am  forced  to  the  conclusion  that  the  objec 
tions  made  to  the  votes  given  by  the  electors  certified  by  the  governor 
of  the  State,  and  the  evidence  offered  in  support  of  the  same,  are  in 
sufficient,  and  that  the  said  votes  ought  to  be  counted. 


Kcuiarks  of  IHr.  Justice  Clifford. 

INTEODUCTOKT  EXPLANATIONS. 

More  than  one  return,  purporting  to  be  certificates  of  the  electoral 
votes  of  the  State  of  Florida,  having  been  received  by  the  President 
of  the  Senate,  the  same,  after  having  been  opened  by  that  officer  in 
the  presence  of  the  two  Houses,  and  objections  thereto  having  been 
filed  in  the  manner  required  by  law,  the  certificates,  votes,  and  all 
papers  accompanying  the  same,  together  with  such  objections,  were 
duly  submitted  to  the  judgment  and  decision  of  the  Electoral  Com 
mission  to  decide  which,  if  either,  was  the  true  and  lawful  vote  of 
the  State  from  which  the  returns  were  received. 

Prior  to  the  commencement  of  the  hearing  the  Commission  adopted 
certain  rules  to  regulate  the  course  of  its  proceedings,  to  two  of 
which  it  is  proper  to  refer  in  order  to  a  better  understanding  of  what 
took  place.  They  are  in  substance  and  effect  as  follows:  (1)  Object 
ors  to  a  certificate  may  select  two  of  their  number  to  support  their 
objections  and  to  advocate  the  validity  of  any  one  or  more  of  the 
other  certificates,  under  the  prescribed  limitations.  (2)  Counsel,  not 
exceeding  two  on  each  side,  may  afterward  be  heard  on  the  merits  of 
the  case. 

Pursuant  to  the  rule  first  named  the  objectors  to  the  Hayes  certifi 
cate,  called  Certificate  No.  1,  were  fully  heard,  and  the  objectors  to  the 
Tilden  certificates,  called  Certificates  Nos.  2  and 3,  wore  also  fully 
heard.  Special  leave  was  given  by  the  Commission  that  three  coun 
sel  might  speak  on  each  side,  and  the  time  allowed  by  the  rule  was 
enlarged. 

Pending  the  argument  it  was  suggested  to  counsel  that  if  they  pro 
posed  to  introduce  evidence  to  support  their  objections  it  would  facil- 
tate  the  hearing  if  they  should  make  known  to  the  Commission  in 
some  proper  form  what  the  evidence  was  that  they  proposed  to  intro 
duce.  Otters  of  proof  were  accordingly  made  by  the  counsel  support 
ing  the  objections  to  Certificate  No.  1,  as  appears  in  the  published  pro 
ceedings  of  the  Commission.  No  offer  of  proof  was  submitted  to  the 
Commission  by  the  counsel  supporting  the  objections  to  the  other  two 
certificates,  at  that  stage  of  the  hearing. 

Without  entering  into  details,  suffice  it  to  say  that  a  portion  of  the 
time  allowed  under  the  rule  for  the  discussion  of  the  merits  of  the 
ca«e  having  been  spent  before  the  offer  of  proof  was  made,  it  was 
moved  by  Mr.  Justice  MILLER  "  that  counsel  be  allowed  two  hours  on 
each  side  to  discuss  the  question  whether  any  evidence  will  be  con 
sidered  by  the  Commission  that  was  not  submitted  to  the  two  Houses 
by  the  President  of  the  Senate,  and,  if  so,  what  evidence  can  properly 
be  considered,  and  also  what  is  the  evidence  now  before  the  Commis 
sion."  Debate  ensued,  but  the  motion  was  adopted  and  the  argument 
proceeded  under  that  regulation  and  restriction. 

Both  sides  were  heard,  and  at  the  close  of  the  arguments  all  persoiis 
present,  except  the  members  of  the  Commission  and  the  officers  thereof, 
retired  and  the  Commission  went  into  consultation  with  closed  doors. 
Opportunity  for  debate  was  extended  to  every  member  of  the  Com 
mission  and  all  participated  in  the  discussion  before  the  final  votes 
were  taken.  Certain  remarks  were  made  at  the  close  of  the  debate 
by  Mr.  Justice  CLIFFORD,  in  substance  and  effect  as  follows : 

BEMARK8. 

Since  the  case  was  submitted  to  the  Commission  pursuant  to  the 
recent  act  of  Congress,  I  have  carefully  examined  the  several  certifi 
cates  in  question  and  all  the  written  objections  to  the  same  trans 
mitted  here  by  the  President  of  the  Senate,  in  order  to  ascertain  what 
the  matters  in  controversy  are  and  what  questions  are  presented  to 
the  judgment  and  decision  of  the  Commission.  Beyond  doubt  those 
documents,  with  the  accompanying  papers,  were  intended  by  the  act 
of  Congress  to  present  the  matters  in  contestation  to  bo  submitted  to 
the  judgment  and  decision  of  the  tribunal  created  for  the  purpose  of 
hearing  and  determining  such  controversies.  Fifteen  commissioners 
have  been  appointed  for  the  purpose,  and  they,  as  required  by  the 
act  of  Congress,  have  severally  been  sworn  impartially  to  examine  and 
consider  all  questions  submitted  to  the  tribunal,  and  to  render  a  true 
judgment  in  the  premises,  agreeably  to  the  Constitution  and  the  laws. 

Sitting  under  that  act  of  Congress  I  shall  assume  that  it  is  a  con 
stitutional  act  and  that  it  correctly  describes  and  defines  the  duties 
and  the  jurisdiction  of  the  Commission. 

Differences  of  opinion  existed  upon  that  subject  before  the  act  of 
Congress  creating  the  Commission  was  passed.  Two  theories  were 
advanced :  one  that  the  power  to  decide  what  persons  were  duly  ap 
pointed  electors  in  a  State  is  vested  in  the  President  of  the  Senate, 
and  the  other  that  the  sole  power  in  that  regard  is  vested  in  the  two 
Houses  of  Congress.  Discussion  upon  that  topic  is  closed  by  the  act 
of  Congress,  which  makes  it  the  duty  of  the  Commission,  in  a  case 


submitted  to  it  under  the  second  section  of  the  net,  <o  "  decide  whether 
any  and  what  votes  from  such  State  are  the  votes  provided  for  by  the 
Constitution  of  the  United  States,  and  how  many  and  what  persons 
wore  duly  appointed  electors  in  such  State." 

Appointed  as  the  members  of  the  Commission  have  been  under  that 
act,  they  are  bound  by  its  provisions,  and  it  is  the  duty  of  the  tribu 
nal  to  perform  in  good  faith  the  duties  which  it  prescribes. 

Three  returns  or  certificates  are  submitted  to  the  Commission  from 
the  State  of  Florida,  and  the  tribunal  is  required  to  decide  what  per 
sons  are  duly  appointed  electors  from  that  State.  Certificate  No.  1, 
if  unexplained,  shows  that  the  Hayes  electors  are  duly  appointed, 
and  Certificates  Nos.  2  and  3  show  that  the  Tilden  electors  were  duly 
elected  by  a  majority  of  the  votes  cast  at  the  election. 

Such  an  issue  must  be  decided  by  the  Commission,  and  all  just  and 
intelligent  persons  must  admit  that  it  cannot  be  properly  decided 
without  an  inquiry  into  the  facts  and  the  hearing  of  the  parties.  In 
quiry  to  a  very  limited  extent,  it  is  admitted,  may  be  made,  but  the 
amazing  proposition  is  advanced  that  the  inquiry  cannot  extend  be 
yond  the  examination  of  the  papers  presented  by  the  President  of 
the  Senate  to  the  two  Houses  and  which  were  subsequently  submit 
ted  to  the  Commission.  Attempt  is  made  to  support  that  proposition 
chiefly  by  the  argument  of  inconvenience.  Should  the  inquiry  be 
opened  to  a  wider  investigation  the  argument  is  that  the  Commission 
would  not  be  able  to  close  its  duties  in  season  to  render  the  electoral 
votes  effectual  for  the  purpose  prescribed  by  the  Constitution. 

Support  to  that  view  is  attempted  to  be  drawn  from  the  most  ex 
travagant  suppositions  that  ingenious  minds  can  devise  or  imagine. 
If  the  suggestions  were  well  founded  they  would  be  entitled  to  weight, 
but  a  few  observations,  I  think,  will  bo  sufficient  to  show  that  the 
supposed  dangers  are  merely  imaginary  and  without  any  foundation 
whatever. 

Arguments  unsupported  by  fact  are  entitled  to  no  weight  and  may 
bo  dismissed  without  consideration  as  mere  sound  and  fury,  signify 
ing  nothing.  Judging  from  the  issues  presented  by  the  certificates, 
and  the  objections  thereto  filed  in  behalf  of  the  contestants,  I  assume 
that  the  Commission  is  not  expected  to  enter  into  any  scrutiny  of  the 
votes  cast  at  the  general  election  of  the  State,  nor  of  the  qnal  itications 
of  the  voters  who  voted  for  President  and  Vice-President  at  that  elec 
tion.  Nothing  of  the  kind  is  suggested  in  any  one  of  the  written  ob 
jections  and  no  such  extravagant  proposition  has  been  advanced  by 
any  member  of  the  Commission.  Matters  of  that  sort  may,  therefore, 
be  dismissed  without  further  remark ;  and  it  is  equally  clear  that  no 
attack  is  made  upon  the  local  officers  who  presided  in  the  precincts, 
nor  does  any  one  of  the  objections  filed  in  the  case  impeach  their  con 
duct  in  receiving,  sorting,  or  counting  the  votes  or  in  declaring  the 
result.  Questions  of  the  kind  sometimes  arise  in  other  forums  which 
give  rise  to  difficult  and  protracted  investigations,  but  no  question 
of  that  character  is  involved  in  this  investigation,  nor  can  it  be  with 
out  a  willful  departure  from  the  issues  presented  in  the  written  ob 
jections  filed  in  the  case. 

Impartial  men  everywhere  must  admit  that  the  act  of  Congress 
makes  it  the  duty  of  the  Commission  to  decide  "  what  persons  were 
duly  appointed  electors"  in  that  State;  and  if  so  it  may  be  assumed 
that  no  member  of  the  Commission  is  willing  to  be  deterred  from 
performing  the  prescribed  duty  by  any  imaginary  dangers,  which 
have  no  real  foundation  in  fact. 

Sufficient  has  already  been  remarked  to  show  that  none  of  the  ob 
jections  to  the  certificates  require  any  scrutiny  into  the  votes  cast  at 
the  primary  election  or  call  in  question  the  returns  made  by  the  offi 
cers  who  presided  in  the  precincts.  Throughout,  the  controversy  has 
respect  to  the  conduct  of  the  State  board  of  canvassers  in  dealing 
with  the  returns  made  by  the  county  canvassers  to  the  secretary  of 
state. 

Precinct  inspectors  are  required  to  make  duplicate  certificates  of 
the  result  and  deliver  one  of  the  same,  with  the  poll-lists,  to  the  clerk 
of  the  circuit  court,  and  the  other  to  the  county  judge.  Six  days 
later  the  county  canvassers  are  required  to  meet  and  to  make  and 
sign  duplicate  certificates  containing  in  words  and  figures,  written  in 
full  length,  the  whole  number  of  votes,  the  names  of  the  persons 
voted  for,  and  the  number  of  votes  given  to  each  person  for  such  office. 
Duplicate  returns  must  be  made  and  recorded,  and  the  requirement 
also  is  that  one  of  the  duplicates  shall  be  transmitted  by  mail  to  the 
secretary  of  state  and  the  other  to  the  governor.  Provision  is  also 
made  for  a  board  of  State  canvassers,  whose  duty  it  is,  within  a  pre 
scribed  period,  to  canvass  the  returns  of  election  received  from  the 
several  counties,  and  to  determine  and  declare  who  shall  have  been 
elected  to  any  such  office  or  as  such  member,  as  shown  by  snch  returns. 

State  canvassers  are  to  determine  and  declare  who  have  been 
elected,  as  shown  by  the  county  returns  received  from  the  county 
canvassers.  Unless  these  views  can  be  successfully  controverted,  and 
I  submit  with  entire  confidence  that  they  cannot,  then  it  follows  that 
there  are  but  three  questions  involved  in  the  main  feature  of  the  reso 
lution  adopted  by  the  Commission  on  motion  of  Mr.  Justice  MILLKR, 
which  I  assume  is  the  proper  guide  of  the  Commission  in  the  present 
consultation. 

1.  Whether  the  Certificate  No.  1  is  absolutely  conclusive  of  the 
election  of  the  Hayes  electors  and  that  it  has  the  effect  to  exclude 
all  evidence  to  prove  the  matters  charged  in  the  written  objections 
submitted  to  the  Commission  at  the  same  time  with  the  certificate. 

Charges  of  the  kind  involve  the  imputation  of  fraud,  perjury,  and 


268 


ELECTORAL   COMMISSION. 


forgery,  ami  if  evidence  to  sustain  such  imputations  cannot  bo  ad 
mitted,  then  the  Congress,  the  President,  and  the  Supreme  Court  have 
been  misled  and  deceived. 

2.  Whether  the  action  of  the  board  of  State  canvassers  is  conclusive 
that  the  Hayes  electors  were  duly  appointed,  and  that  it  has  the 
eft'ect  to  shut  out  evidence  to  show  error,  fraud,  perjury,  or  willful 
forgery. 

3.  Whether  Certificates  Nos.  2  and  3  are  valid,  supported  as  they 
are  by  the  action  of  all  the  branches  of  the  State  government ;  which, 
if  admissible  in  evidence,  show  to  a  demonstration  that  the  Hayes 
electors  were  never  duly  appointed,  and  that  they  are  mere  usurpers. 

When  a  person  is  elected  to  the  office  of  elector,  the  requirement  of 
'  the  State  statute  is  that  the  governor  shall  make  out  and  sign  a  cer 
tificate  of  his  election,  cause  the  same  to  be  sealed  with  the  seal  of 
the  State,  and  transmit  the  same  to  the  person  elected  to  such  office. 
Certificates  of  the  kind  to  persons  chosen  to  any  State  office  are  made 
out  by  the  secretary  of  state,  whose  duty  it  is  to  transmit  the  same 
to  the  person  having  the  highest  number  of  votes  cast,  and  the  pro 
vision  is  that  the  "  certificate  shall  be prima fade  evidence  of  his  elec 
tion  to  such  office." 

Votes  cast  for  electors  are  canvassed  for  the  same  purpose  as  votes 
cast  for  State  officers,  and  the  certificate  given  by  the  governor  to  an 
elector  is  given  for  the  same  purpose  that  the  certificate  of  the  secre 
tary  of  state  is  given  to  a  person  supposed  to  be  elected  to  a  State 
office,  and  there  is  no  reason  for  holding  that  the  certificate  of  the 
governor  was  intended  to  have  any  other  or  different  effect  than  the 
certificate  of  the  secretary  of  state  when  given  to  a  State  officer,  as 
required  by  the  same  statute. 

Truth  and  justice,  it  is  admitted,  ought  to  prevail,  but  the  argu 
ment  is  that  such  an  investigation  is  impracticable  for  the  want  of 
time  to  complete  it,  and  in  order  to  give  plausibility  to  that  theory 
it  is  assumed  that  the  objectors  to  Certificate  No.  1  propose  to 
enter  into  a  scrutiny  of  the  qualification  of  the  voters  -and  of  the 
votes  cast  at  the  primary  election,  and  of  the  conduct  of  the  officers 
who  presided  in  the  precincts,  and  of  their  returns.  Assumptions  of 
the  kind  are  entirely  without  foundation,  as  sufficiently  appears  from 
the  certificates  and  the  written  objections  filed  to  the  same,  which 
clearly  present  the  issues  to  be  tried  and  determined  by  the  Commis 
sion. 

1.  Certificate  No.  1,  dated  December  6, 187G,  signed  byM.  L.  Stearns, 
governor,  certifies  that  Frederick  C.  Humphreys,  Charles  H.  Pea^ce, 
William  H.  Holden,  and  Thomas  W.  Long  have  been  chosen  electors 
of  the  State,  agreeably  to  the  laws  of  the  State  and  in  conformity  to 
the  Constitution  of  the  United  States. 

Six.  specifications  of  objections  were  duly  filed  to  that  certificate, 
which  in  substance  and  effect  are  as  follows :  (1)  That  the  persons 
therein  named  as  electors  were  not  appointed  as  such  in  the  manner 
directed  by  the  Legislature  of  the  State.  (2)  That  they  were  not  ap 
pointed  electors  of  President  and  Vice-President  in  such  manner  as 
the  Legislature  of  the  State  directed.  (3)  That  the  qualified  voters 
of  the  State  did,  on  the  7th  of  November,  1876,  execute  the  power 
of  appointing  such  electors,  and  did  appoint  Wilkinson  Call,  James 
E.  Youge,  Robert  B.  Hilton,  and  Robert  Bullock  to  be  such  electors. 
(4)  That  Certificate  No.  1  is  untrue,  and  was  corruptly  procured,  and 
made  in  pursuance  of  a  conspiracy  therein  more  particularly  de 
scribed.  (5)  That  the  papers  falsely  purporting  to  be  votes  are  ficti 
tious  and  unreal,  and  were  made  out  and  executed  in  pursuance  of 
the  same  fraudulent  conspiracy.  (6)  That  the  printed  certificate  has 
been  annulled  and  declared  void  by  the  executive  and  by  the  Legis 
lature  and  judiciary  of  the  State. 

Apart  from  that,  the  objectors  also  allege  that  Certificate  No.  1  was 
annulled  by  the  subsequent  certificate  to  the  Tildon  electors,  by 
which  the  latter  were  declared  duly  appointed  in  the  manner  pro 
vided  by  the  Legislature  of  the  State  and  the  constitution,  the  Legis 
lature  having  declared  that  the  title  of  the  persons  named  as  electors 
in  the  last-named  certificate  is  good  and  valid.  Nor  do  the  objectors 
rest  the  case  entirely  upon  the  certificate  of  the  governor  and  the 
legislative  act,  but  they  also  set  up  the  judgment  of  the  circuit  court 
rendered  in  the  suit  in  the  nature  of  quo  warranto,  and  allege  that  it 
was  adjudged  by  the  court  in  that  case  that  the  four  persons  named 
in  Certificate  No.  1  were  not  elected,  chosen,  or  appointed  electors  for 
the  State,  and  that  the  court  also  decided  that  they  were  mere  usurp 
ers,  and  were  not  entitled  to  assume  or  exercise  any  of  the  powers  or 
functions  of  electors  of  President  and  Vice-Prosident. 

Superadded  to  those  general  specifications,  they  also  file  a  special 
objection  to  one  of  the  four  persons  named  in  Certificate  No.  1,  to- 
wit,  that  Frederick  C.  Humphreys  was  ineligible  as  an  elector  bo- 
cause  he  held  at  the  time  of  the  election  the  office  of  shipping  com 
missioner,  which,  under  the  act  of  Congress  of  the  7th  of  November, 
187(i,  is  an  office  of  trust  and  profit  within  the  meaning  of  the  Con 
stitution. 

On  December  6,  1876,  the  attorney-general  of  the  State,  one  of  the 
board  of  State  canvassers,  executed  a  certificate  to  Wilkinson  Call, 
James  E.  Yonge,  Robert  B.  Hilton,  and  Robert  Bullock,  called  Certifi 
cate  No.  2,  that  it  appears  by  the  authentic  returns  on  file  in  the  office 
of  the  secretary  of  state  that  they,  on  the  7th  of  November,  1876,  were 
chosen  the  four  electors  of  the  State,  and  that  the  law  of  the  State 
makes  no  provision  whereby  the  result  shown  by  those  returns  can 
be  certified  to  the  executive  of  the  State.  Under  that  certificate  the 
persons  therein  named  as  electors  on  the  same  day  met  and  cast  their 


votes  for  Samuel  J.  Tilden  for  President  and  Thomas  A.  Hendricka 
for  Vicc-Presideut. 

Two  objections  are  filed  to  that  certificate:  (1.)  That  it  is  not  authen 
ticated  according  to  the  Constitution  and  laws  of  the  United  States, 
so  as  to  enable  the  votes  given  by  those  four  persons  to  be  counted. 
(2.)  That  the  package  inclosing  that  certificate,  when  opened  in  the 
presence  of  the  two  Houses,  did  not  contain  any  paper  from  the  exec 
utive  of  the  State  showing  that  the  persons  therein  named  were  the 
electors  appointed  by  the  State,  nor  is  said  certificate  accompanied 
by  any  lawful  authentication  that  they  were  appointed  to  cast  the 
electoral  vote  of  the  State. 

Florida,  on  the  17th  of  January,  1877,  enacted  a  statute  creating  a 
board  of  State  canvassers,  and  by  the  same  statute  directed  that  board 
to  proceed  to  canvass  the  returns  of  the  election  of  electors  held  on 
the  7th  of  November,  1876,  and  to  determine  and  declare  who  were 
elected  and  appointed  electors  at  said  election,  as  shown  by  such  re 
turns  on  file  in  the  office  of  the  secretary  of  state.  By  the  second  sec 
tion  of  the  statute  the  new  State  board  was  required  to  canvass  those 
returns  according  to  the  fourth  section  of  the  election  law  which  was 
in  force  at  the  time  the  election  was  hold  for  the  choice  of  electors, 
as  construed  by  the  supreme  courtof  the  State.  Pursuant  thereto,  the 
said  State  board  was  duly  constituted,  consisting  of  the  secretary  of 
state,  the  governor  of  the  State,  the  comptroller  of  public  accounts, 
and  the  treasurer  of  the  State,  and  they  mot  at  the  capital  of  the  State, 
on  the  11)  th  of  January  in  the  same  year,  and  made  the  canvass  of 
the  said  returns  on  file  hi  the  office  of  the  secretary  of  state,  by  which 
it  appears  that  the  four  persons  designated  as  the  Tilden  electors  re 
ceived  a  majority  of  all  the  votes  cast  for  electors  in  the  several  pre 
cincts  of  the  State,  and  that  they  wore  duly  appointed  such  electors. 

Enough  also  appears  to  show  that  those  persons  claimed  title  as 
electors  duly  appointed  under  Certificate  No.  2,  and  that  they,  on  the 
6th  of  December,  1876,  instituted  a  suit  in  the  circuit  court  of  the 
second  judicial  circuit,  in  the  nature  of  quo  ivarranto,  a  ;ainst  the 
Hayes  electors,  alleging  that  the  respondents  were  not  entitled  to 
those  offices,  and  praying  judgment  of  ouster  against  them  as  wrong 
fully  in  possession  of  the  same.  Service  was  made  and  the  respond 
ents  appeared  and  filed  an  answer.  Proofs  were  subsequently  taken 
and  the  court  rendered  judgment  in  favor  of  the  relators. 

Contemporaneous  action  upon  the  subject  was  also  taken  by  the  Leg 
islature.  On  the  26th  of  the  same  month  the  Legislature  passed  a 
statute  declaring  that  the  four  persons  called  the  Tilden  electors  were, 
on  the  7th  of  November  preceding,  duly  chosen  and  appointed  elect 
ors,  and  that  they  were  from  that  time  entitled  to  exercise  all  the 
powers  and  duties  of  the  office  of  electors,  and  had,  on  the  6th  of  De 
cember  then  next,  full  power  and  authority  to  vote  as  such  electors 
and  to  certify  and  transmit  their  votes  as  provided  by  law. 

Explicit  recognition  of  their  power  and  authority  is  there  declared, 
and  the  statute  proceeds  to  ratify,  confirm,  and  declare  valid  all  their 
acts  as  such  electors  to  all  intents  and  purposes,  and  to  declare  that 
they  are  thereby  appointed  electors  as  of  the  day  of  the  prior  general 
election. 

Section  2  of  the  same  act  authorizes  and  directs  the  governor  to 
make  and  certify  in  duo  form  and  under  the  great  seal  of  the  State 
three  lists  of  the  names  of  those  persons  as  such  electors,  and  to  trans 
mit  the  same  with  an  authenticated  copy  of  that  act  to  the  President  of 
the  Senate  of  the  United  States.  Three  lists  of  like  character  were 
also  directed  to  be  certified  by  the  governor,  and  he  was  directed 
forthwith  to  deliver  the  same  to  the  said  electors. 

These  directions  were  obeyed  by  the  governor,  and  on  the  same  day 
ho  made  and  delivered  to  the  said  electors  the  certificates  designated 
in  the  proceedings  before  the  Commission  as  Certificate  No.  3,  which, 
as  well  as  No.  2,  was  given  to  the  Tilden  electors. 

Three  grounds  of  objection  are  stated  in  the  paper  filed  in  opposi 
tion  to  that  certificate:  (1)  That  it  is  not  duly  certified  by  any  one 
holding  the  office  of  governor  at  the  time  the  electors  were  appointed, 
nor  at  the  time  when  they  exercised  their  functions,  nor  until  after  their 
duties  had  been  fully  discharged.  (2)  Because  the  alleged  proceed 
ings  are  ex  post  facto  and  do  not  confer  any  right  to  those  persons  to 
cast  the  electoral  vote  of  the  State.  (3)  Because  the  proceedings 
being  retroactive  are  null  and  void  and  of  no  effect. 

Mention  should  also  bo  made  that  an  objection  was  also  filed  in  the 
case  applicable  to  both  of  the  two  preceding  certificates,  in  which  the 
objectors  deny  the  validity  of  those  certificates  upon  the  ground  that 
Certificate  No.  1  is  in  all  respects  regular,  valid,  and  sufficient,  and 
that  the  electors  therein  named  were  duly  appointed  to  cast  the  elect 
oral  vote  of  the  State. 

Properly  analyzed  and  construed,  it  is  clear,  from  the  several  objec 
tions  filed  to  the  certificates,  that  the  returns  of  the  State  canvassers, 
including  that  made  by  the  attorney-general,  are  the  only  returns 
called  in  question,  the  charge  being  that  the  return  of  the  State 
board,  which  is  the  basis  of  the  Hayes  certificate,  is  false,  forged,  and 
counterfeit. 

Exception  is  also  taken  by  the  other  side  to  Certificates  Nos.  2  and 
3,  but  it  is  not  a^eged  that  they  are  false  or  forged,  nor  that  the  re 
turns  on  which  they  are  based  are  false  or  manufactured,  nor  that  the 
election  to  which  they  refer  was  not  lawfully  held  and  properly  con 
ducted. 

Intelligent  inquirers  will  see  at  a  glance  that  all  of  the  certificates 
refer  to  the  same  election,  to  wit,  to  the  election  held  on  the  7th  of 
November,  and  that  no  one  of  the  objections  call  in  question  either 


ELECTORAL  COMMISSION. 


the  validity  or  the  regularity  or  fairness  of  that  election.  Neither 
side  proposes  to  institute  any  scrutiny  into  the  votes  cast  or  to  require 
any  investigation  as  to  the  qualification  of  the  voters  who  cast  the 
votes,  nor  do  they  attack  the  conduct  of  the  officers  who  presided  in 
the  precincts,  nor  the  returns  which  the  precinct  officers  made  to  the 
county  canvassers.  Everything  of  that  sort  may  be  dismissed  from 
consideration  as  not  within  the  jurisdiction  of  the  Commission,  be 
cause  not  submitted  to  its  judgment  and  decision,  and  the  remarks 
apply  with  equal  force  to  the  returns  made  by  the  county  canvassers, 
for  the  reason  that  none  of  the  objections  attack  either  the  truthful 
ness  or  fairness  of  those  returns,  nor  do  they  propose  any  inquiry  into 
the  conduct  of  the  officers  who  made  those  returns. 

Strenuous  opposition  is  made  to  Certificate  No.  1,  and  those  who 
object  to  it  insist  that  the  return  of  the  State  canvassers  on  which  it 
is  founded  is  false,  and  the  offers  of  proof  point  out  more  particularly 
the  specific  grounds  of  the  charge.  Decided  opposition  is  also  made 
to  the  other  two  certificates,  chiefly  that  the  officers  who  made  the 
instruments  were  unauthorized  to  give  any  such  certification,  and 
that  the  certificates  are  of  no  legal  validity. 

Viewed  in  the  light  of  these  suggestions  it  is  clear  that  the  argu 
ment  of  inconvenience  is  a  mere  hollow  pretense  and  that  it  is  en 
titled  to  no  weight. 

Precinct  returns  were  duly  made  to  the  county  canvassers  and  the 
county  canvassers  made  due  returns  to.  the  secretary  of  state,  where 
they  still  remain  on  file,  as  appears  by  the  certified  copies  of  the  same 
among  the  papers  submitted  to  the  Commission  by  the  two  Houses. 
What  the  objectors  to  Certificate  No.  1  charge,  when  expounded  in 
the  light  of  the  offers  of  proof,  is  that  the  State  canvassers  unlaw 
fully  rejected  the  entire  return  from  the  county  of  Manatee  and  parts 
of  the  respective  returns  from  the  counties  of  Hamilton,  Jackson,  and 
Monroe ;  that  the  State  board  by  those  unlawful  acts  changed  the 
result  of  the  election  and  created  the  unlawful  basis  on  which  Cer 
tificate  No.  1  is  founded. 

Both  the  certificate  of  Governor  Steams  and  the  certificate  of  the 
attorney-general  are  founded  upon  the  same  county  returns,  except 
the  returns  from  the  county  of  Manatee,  and  parts  of  the  respective 
returns  from  the  counties  of  Hamilton,  Jackson,  and  Monroe,  which 
were  excluded  from  the  basis  on  which  Governor  Stearns  issued  his 
certificate.  He  adopted  the  basis  formed  by  the  State  canvassers, 
excluding  the  whole  of  the  return  from  one  county  and  parts  of  the 
ret.urns  from  the  three  other  counties. 

All  the  county  returns,  as  before  remarked,  are  on  file  in  the  office 
of  the  secretary  of  state,  and  the  attorney-general,  who  was  one  of 
the  State  canvassing  board,  denying  the  right  of  the  board  to  reject 
a  county  return  without  good  cause  shown,  or  to  mutilate  or  tamper 
with  such  returns  under  any  circumstances,  dissented  from  the  acts 
of  the  other  two  members  of  the  board.  Apparently  his  conduct  was 
open  and  frank,  and  he,  on  the  same  day,  canvassed  the  entire  county 
returns,  and  finding  that  the  returns  when  honestly  counted  elected 
the  Tilden  electors,  he  executed  Certificate  No.  2,  and  it  appears  that 
the  four  persons  therein  named  met  on  the  same  day  in  the  same 
building  with  the  persons  named  in  Certificate  No.  1,  and  cast  their 
votes  for  President  and  Vice-President. 

None  of  these  facts  can  be  successfully  contoverted,  as  all  the  re 
turns  are  on  file  in  the  office  of  the  secretary  of  state,  and  duly  certi 
fied  copies  of  the  same,  together  with  the  original  certificates,  are 
now  before  the  Commission,  having  been  submitted  by  the  order  of 
the  two  Houses  in  the  regular  course  of  their  action. 

Few,  I  presume,  will  deny  that  it  is  competent  for  the  Commission 
to  take  notice  of  the  statutes  of  the  State  relating  to  the  matter  in 
controversy  without  any  formal  proof  of  their  legal  authenticity. 
Suppose  that  is  so,  then  there  are  no  matters  involved  in  the  issues 
presented  which  may  not  be  thoroughly  examined  in  a  very  few  hours. 
Differences  of  opinion  may  exist  as  to  the  legal  effect  of  the  evidence 
if  admitted,  but  I  have  yet  to  learn  that  any  one  denies  that  the  al 
leged  facts  are  capable  of  beingproved  by  authentic  documents  in  the 
archives  of  the  State.  Certified  copies  of  the  record  and  judgment  of 
the  court  in  the  quo  warranto  proceedings  are  also  here,  ready  to  be 
introduced,  and  no  one,  I  suppose,  will  deny  that  a  duly  exemplified 
copy  of  a  record  and  judgment  between  the  same  parties  would  bo  ad 
missible  in  this  case,  unless  it  be  held  that  the  action  of  the  State 
canvassers  or  the  certificate  of  the  governor  closes  the  door  to  all  in 
vestigations  .and  is  sufficient  to  show  that  this  Commission  is  so  high 
that  it  has  no  power  to  investigate  either  fraud,  perjury,  or  forgery. 

Extended  argument  to  show  that  the  certificate  of  the  governor  is 
not  conclusive  seems  to  bo  unnecessary,  as  the  opening  counsel  sup 
porting  Certificate  No.  1  disclaims  that  proposition,  and  very  prop 
erly  admits  that  it  is  only  prima  fade  evidence  of  what  it  certifies  to 
be  true.  Such  a  certificate  made  by  an  officer  charged  with  the  duty 
of  making  it  imports  verity,  and  it  is  doubtless  true  that  it  affords  a 
prima  facie  right  in  the  holder  in  the  absence  of  any  showing  what 
ever  to  the  contrary. 

Grant  that,  but  I  suppose  it  was  never  heard  that  evidence  of  a 
mere  prima  facie  right  could  have  the  effect  to  exclude  all  opposing 
testimony  to  show  that  the  right  did  not  exist,  or  that  it  had  no  other 
foundation  than  fraud  and  forgery.  Fraud,  it  is  said,  will  vitiate 
everything,  and  it  is  a  maxim  which  has  fewer  exceptions  than  any 
other  known  to  the  common  law. 

Evidence  of  error  is  sufficient  to  overcome  a  prima  facie  presump- 
tiou,  but  it  was  never  heard  that  such  a  presumption  is  sufficient  to 


shut  out  all  proof  of  fraud.  With  all  respect  to  those  who  advocate 
that  proposition,  I  must  be  allowed  to  say  that  such  a  decision  was 
never  made,  and  it  is  presumed  never  will  be,  by  any  just  and  intel 
ligent  tribunal.  Considerable  time  was  spent  in  argument  by  coun 
sel. who  support  the  Hayes  certificate  to  convince  the  Commission 
that  they  do  not  maintain  any  such  proposition,  and  I  am  convinced 
that  if  they  do,  it  cannot  properly  be  adopted  by  the  Commission. 

Concede  that,  and  it  follows  that  evidence  in  a  proper  case  may  be 
admitted  to  prove  fraud  or  forgery  in  the  certificate  given  in  such  a 
case  by  the  governor  of  the  State.  Credentials  of  the  kind  are 
founded  upon  a  prescribed  basis,  regulated  by  law,  which  is  usually 
dependent  for  its  accuracy  not  upon  the  doings  of  the  governor,  but 
upon  the  acts  of  other  public  agents.  Whether  that  basis  is  truth  or 
error,  he  does  not  know,  and  consequently  the  legal  effect  of  his  cer 
tificate  is,  whatever  may  be  its  form,  that  it  appears  to  him,  in  view 
of  that  prescribed  basis,  that  the  party  interested  is  duly  elected  to 
the  particular  office  in  question,  which  is  sufficient  to  show  that  it 
would  be  monstrous  to  hold  that  such  a  certificate  is  a  muniment  of 
title  which  cannot  be  contradicted. 

Even  suppose  that  is  so,  still  it  is  insisted  by  the  same  counsel  that 
the  action  of  the  State  canvassers,  pursuant  to  the  fourth  section  of 
the  State  act  of  the  27th  of  February,  1872,  is  conclusive,  and  that  thin 
Commission,  in  view  of  the  action  of  that  board  and  of  the  provision 
of  the  State  law,  is  not  authorized  to  admit  evidence  of  any  kind  to 
show  that  their  return  is  not  true  or  that  it  is  fraudulent,  nor  even 
that  it  is  a  forgery.  Startling  as  the  proposition  is,  it  will  require 
careful  examination  in  view  of  that  statute. 

Certain  persons  are  designated  in  the  introductory  part  of  the 
fourth  section  of  the  statute  to  meet  at  a  prescribed  time,  at  the  of 
fice  of  the  secretary  of  state,  to  form  a  board  of  State  canvassers, 
and  that  board  is  required  to  canvass  the  returns  of  the  election — 
meaning  the  county  returns  filed  in  the  office  of  the  secretary  of 
state — and  to  determine  and  declare  who  shall  have  been  elected 
*  *  *  as  shown  by  such  returns. 

Obviously  they  are  required  to  canvass  the  county  returns  filed  in 
the  office  of  the  secretary  of  state,  and  to  determine  who  are  elected, 
as  shown  l)y  such  returns.  If  the  provision  stopped  there,  it  would 
be  clear  that  the  sole  duty  of  that  board  would  be  to  canvass  and 
declare  the  result  shown  by  those  returns  ;  but  it  does  not  stop  there, 
and  consequently  it  becomes  necessary  to  examine  the  residue  of  the 
section. 

They  are  required  to  examine  those  returns  and  no  others,  and  the 
further  provision  is  that  if  any  such  return  shall  bo  shown,  or  shall 
appear  to  be  "so  irregular,  false,  or  fraudulent"  that  the  board  shall 
be  unable  to  determine  the  true  vote  for  any  such  officer  or  member,  they 
shall  so  certify,  and  shall  not  include  such  return  in  their  determina 
tion  and  declaration.  Unless  the  return  shall  be  shown  or  shall  ap 
pear  to  be  so  irregular,  false,  or  fraudulent  that  the  board  is  unable  to 
determine  the  true  vote,  they  have  no  authority  to  reject  such  a  re 
turn,  and  they  have  no  jurisdiction  to  mutilate  or  alter  it  under  any 
circumstances.  Where  the  return  is  so  irregular,  false,  or  fraudulent 
that  they  cannot  determine  the  result  without  rejecting  such  a  re 
turn,  they  shall  not  include  it  in  their  return,  but  they  must  certify 
that  fact.  It  is  difficult  to  see  why  they  are  required  to  certify  the 
fact  unless,  their  action  is  subject  to  review.  Confirmation  of  that 
view  is  also  derived  from  the  fact  that  the  secretary  of  state  is  re 
quired  to  preserve  and  file  in  his  office  all  such  returns,  with  such 
other  documents  and  papers  as  he  may  receive. 

Proof  that  any  such  irregular,  false,  or  fraudulent  return  from  a 
county  was  filed  in  the  office  of  the  secretary  of  state  is  entirely 
wanting,  and  nothing  of  the  kind  is  suggested  in  the  objections  filed 
by  either  party ;  nor  would  it  afford  any  argument  to  exclude  investi 
gation  if  it  were  otherwise,  as  the  case  shows  that  all  the  evidence 
is  preserved  in  the  office  of  the  secretary  of  state,  and  certified  copies 
of  the  same  are  among  the  papers  transmitted  to  the  Commission. 

Beyond  question  the  provision  assumes  that  a  county  return  may 
be  so  irregular,  false,  and  fraudulent  that  the  board  will  be  unable 
to  determine  the  true  result  unless  such  defective  return  be  rejected  ; 
and  if  so,  they  shall  so  certify  and  shall  not  include  such  return,  but 
the  return  is  to  be  filed  and  preserved  in  the  office  of  the  secretary  of 
state. . 

None  of  the  objections  set  up  any  such  state  of  things,  nor  does 
any  one  pretend,  I  think,  that  any  of  the  returns  filed  in  the  office  of 
the  secretary  of  state  come  within  the  category  of  that  provision. 
Should  it  be  said  that  the  presumption  is  that  the  board  performed 
its  duty,  the  answer  to  that  is  that  such  a  presumption  is  merely  a 
prima  facie  one,  which  may  be  overcome  by  competent  proof,  and  that 
a  brief  examination  of  the  documents  will  be  sufficient  to  enable  the 
Commission  to  determine  whether  the  charge  that  the  board,  in  order 
to  change  the  result  of  the  election,  were  or  were  not  guilty  of  fraud, 
perjury,  or  forgery.  Opportunity  to  introduce  evidence  is  asked,  and 
the  proper  response  to  the  request  in  my  judgment  is,  let  the  evidence 
determine  the  issue  between  the  parties. 

Candid  men  everywhere  will  agree,  I  think,  that  the  board  was 
directed  to  include  regular  returns,  and  that  they  had  no  right  to 
exclude  any  one  unless  it  was  so  irregular,  false,  or  fraudulent  that 
if  included  they  would  be  unable  to  ascertain  and  determine  the  true 
vote  or  result.  Those  supporting  the  objections  to  Certificate  No.  1 
allege  and  propose  to  prove  that  the  board  threw  out  returns  which 
were  neither  irregular,  false,  or  fraudulent,  in  order  to  change  the 


270 


ELECTORAL   COMMISSION. 


result  of  the  election,  and  in  my  opinion  they  are  entitled  to  that 
privilege  if  the  evidence  offered  is  competent  and  tends  to  prove  the 
charge. 

Imputations  of  the  kind  are  explicitly  made,  and  the  main  question, 
Tinder  the  order  adopted  by  the  Commission,  is  whether  evidence  is 
admissible  to  prove  the  accusation.  No  one  here,  I  suppose,  will 
deny  that  in  general  such  evidence  in  an  issue  between  party  and 
party  is  admissible,  but  the  argument  is  that  in  the  case  under  con 
sideration  neither  Congress  nor  the  Commission  has  jurisdiction  to 
try  such  an  issue. 

Electoral  votes  are  to  be  transmitted  to  the  President  of  the  Senate, 
and  the  provision  of  the  Constitution  is  that  the  President  of  the 
Senate  shall,  in  the  presence  of  the  Senate  and  the  House  of  Repre 
sentatives,  open  all  the  certificates,  and  that  "  the  votea  shall  then 
be  counted." 

Wide  difierences  of  opinion  prevailed,  pending  the  passage  of  the 
act  creating  the  Commission,  as  to  the  meaning  of  that  clause :  one 
side  maintaining  that  the  votes  should  be  counted  by  the  President 
of  the  Senate,  and  the  other  that  it  was  both  the  right  and  the  duty 
of  the  two  Houses  to  inquire  and  determine  whether  the  votes  re 
turned  and  opened  in  the  presence  of  the  two  Houses  are  the  true 
votes  given  by  "  the  duly  appointed  electors  "  of  the  State.  Discus 
sion  rarely  ever  surpassed  followed.  Suffice  it  to  say  the  bill  became 
a  law  almost  by  general  consent.  Parties  and  counsel  seem  indis 
posed  to  open  that  discussion,  nor  is  it  my  purpose  to  enter  that  field, 
except  to  say  that  in  my  judgment  tho  verdict  of  posterity  will  be 
that  it  is  the  duty  of  Congress  to  count  the  votes  and  to  solve  every 
question  involved  in  the  performance  of  that  duty. 

Under  the  act  creating  the  Commission  the  provision  is  that  where 
more  than  one  return  from  a  State  has  been  received  by  the  Presi 
dent  of  the  Senate,  the  same  shall  be  opened  by  him  in  the  presence 
of  the  two  Houses,  and  shall  be  submitted  to  the  Commission  to  deter 
mine  which  is  the  true  and  lawful  electoral  vote  of  the  State.  Writ 
ten  objection  may  be  made  to  such  certificates,  and  when  made,  if 
there  be  more  than  one,  the  requirement  is  that  all  such  certificates, 
votes,  and  papers,  and  all  papers  accompanying  the  same,  together 
with  the  objections,  shall  be  forthwith  submitted  to  the  Commission, 
which  shall  proceed  to  consider  the  same,  with  the  same  powers,  if  any, 
now  possessed  for  that  purpose  by  the  two  Houses  acting  separately 
or  together. 

Important  duties  are  required  of  the  Commission,  as  follows:  (1) 
they  are  required  to  consider  all  such  certificates,  votes,  and  papers 
objected  to,  and  all  papers  accompanying  the  same;  (2)  they  are 
required  to  decide  by  a  majority  of  votes  whether  any  and  what  votes 
from  such  State  are  the  votes  provided  by  tho  Constitution  of  the 
United  States,  and  how  many  and  what  persons  were  duly  appointed 
electors  by  such  State. 

Express  requirement  is  made  that  the  Commission  shall  perform 
those  duties,  and  the  act  further  provides  that  they  "  may  therein 
take  into  view  such  petitions,  depositions,  and  other  papers,  if  any,  as 
shall  by  the  Constitution  and  now  existing  law  be  competent  and 
pertinent  in  such  consideration." 

Duties  such  as  those  required  cannot  be  properly  performed  without 
evidence  nor  without  hearing  the  parties  interested.  By  the  express 
words  of  the  act  the  Commission  may  take  into  view  such  petitions 
and  depositions,  if  admissible  by  the  Constitution  and  the  existing 
laws,  provided  they  are  pertinent  to  the  matter  under  consideration, 
which  shows  to  a  demonstration  that  Congress  never  intended  that 
the  Commission  should  determine  the  questions  submitted  without 
evidence,  any  more  than  without  giving  the  parties  an  opportunity 
to  be  heard. 

Conclusive  support  to  that  view  is  also  derived  from  the  form  of 
the  oath  the  Commissioners  are  required  to  take  and  subscribe  before 
entering  upon  the  duties  prescribed  by  the  act.  Every  member  of 
the  Commission  solemnly  engaged  by  that  oath  that  he  would  impar 
tially  examine  and  consider  all  questions  submitted  to  the  Commis 
sion  and  a  true  judgment  give  thereon,  agreeably  to  ths  Constitution 
and  the  laws. 

Two  of  the  questions  submitted  are  as  follows :  (1.)  What  votes  from 
the  State  are  the  true  votes  f  (2.)  What  persons  were  duly  appointed 
electors  in  suck  State  f  You  are  all  sworn  to  impartially  examine 
and  consider  those  questions  and  a  true  judgment  give  thereon,  agree 
ably  to  the  Constitution  and  the  laws.  How  can  you  comply  with 
that  requirement  unless  you  admit  in  evidence  the  documentary  evi 
dence  from  the  office  of  the  secretary  of  state  and  an  exemplified 
copy  of  the  record  and  judgment  in  the  suit  between  these  contest 
ants? 

Jurisdiction  is  the  power  to  hear  and  determine,  and  it  is  to  me  past 
comprehension  how  any  person  accustomed  to  legal  investigation  can 
read  the  act  of  Congress  creating  the  Commission  and  still  entertain 
a  doubt  that  the  Congress  intended  that  the  Commission  should  ex 
amine  and  consider  those  two  questions  and  give  a  true  judgment 
thereon  agreeably  to  the  Constitution  and  the  laws.  Common  ex 
perience  is  sufficient  to  convince  every  person  of  ordinary  intelligence 
that  a  true  judgment  cannot  be  given  without  evidence  nor  without 
a  hearing.  Tribunals  of  justice  are  not  expected  to  shut  their  eyes 
to  evidence  and  decide  blindly  without  hearing  the  parties. 

Unless  parties  are  allowed  to  give  evidence  they  are  not  benefited 
by  being  heard  upon  the  merits  of  the  controversy.  By  the  terms 
of  the  order  under  which  they  have  been  hoard  the  merits  are  ex 


cluded,  and  if  the  Tildeu  electors  are  not  permitted  to  give  evidence 
the  merits  must  be  decided  in  favor  of  the  other  party  without  any 
hearing.  Worse  than  that ;  the  case  was  practically  decided  before 
it  was  submitted  to  the  Commission,  and  it  must  be  sent  back  with 
out  any  one  of  the  questions  presented  in  the  objections  having  been 
examined  or  considered  by  the  Commission. 

Congress  never  would  have  passed  the  law  if  those  who  favored  its 
passage  had  supposed  that  the  only  duty  the  Commission  had  to  per 
form  was  to  certify  to  the  two  Houses  the  enumeration  made  by  the 
State  board  of  canvassers.  Nor  would  the  President  of  the  United 
States  have  considered  it  his  duty  to  send  a  special  message  to  Con 
gress  commending  the  measure  if  he  had  supposed  that  the  jurisdic 
tion  of  the  Commission  was  limited  to  a  mere  clerical  enumeration  of 
the  votes  certified  and  transmitted  to  the  President  of  the  Senate. 

Two  branches  of  the  Government  were  stopped  to  enable  the  mem 
bers  of  tho  Commission  to  sit  and  hear  these  cases,  and  now  it  is 
gravely  contended  by  members  of  the  tribunal  that  the  Commission 
can  neither  hear  evidence  nor  decide  the  questions  presented  in  tho 
written  objections  submitted  to  the  Commission  by  the  two  Houses, 
beyond  the  mere  enumeration  of  the  votes.  Duties  of  the  kind  are 
usually  performed  by  a  county  judge  upon  the  desk  before  him,  without 
referring  the  cause  to  a  master.  Others  must  argue  such  a  question 
if  they  see  fit,  but  I  cannot,  as  it  seems  to  me  that  the  proposition 
calls  in  question  the  wisdom  of  Congress  and  involves  a  theory  which 
is  past  belief. 

Both  Houses  of  Congress  knew  full  well  that  there  were  in  the  con 
tested  cases  charges  of  fraud,  perjury,  and  forgery,  and  it  is  clear  to 
a  demonstration,  in  my  judgment,  that  those  charges  in  respect  to 
the  returns  made  by  the  State  board  should  be  examined,  considered, 
and  decided  by  this  tribunal,  so  far  as  the  charges  are  involved  in  the 
objections  filed  to  the  certificates  submitted  to  the  Commission  by 
the  two  Houses  of  Congress. 

When  the  Commission  was  organized  the  whole  country  expected 
that  those  charges  would  be  hoard  and  that  a  true  judgment  would 
be  given  thereon,  and  sound  discretion  and  a  due  regard  to  the  words 
of  the  act  of  Congress  forbid  tho  conclusion  that  the  action  of  the 
State  board  in  rejecting  the  county  returns  from  the  county  of  Man 
atee  and  parts  of  the  returns  from  the  three  other  counties  named  is 
a  matter  the  Commission  cannot  examine,  consider,  and  decide,  the 
charge,  as  alleged,  involving  fraud,  perjury,  and  forgery.  Such  a  de 
cision,  in  my  judgment,  is  forbidden  by  every  consideration  of  law 
and  justice,  and  if  made,  I  fear  that  it  will  shock  the  public  sense, 
and  when  the  knowledge  of  it  reaches  other  lands  I  shall  be  greatly 
disappointed  if  it  does  not  shock  tho  wise  and  just  throughout  tho 
civilized  world. 

Without  the  right  to  introduce  evidence  a  trial  in  any  case  is  a 
mockery,  and  in  this  case  the  refusal  to  hear  evidence  is  the  height 
of  injustice,  as  it  amounts  to  an  ex  parte  decision  in  favor  of  the  per 
sons  claiming  title  under  Certificate  No.  1,  without  having  examined 
or  considered  any  one  of  the  objections  filed  to  that  supposed  muni 
ment  of  title. 

Explanations  to  sustain  that  proposition  are  unnecessary,  as  it  is 
obvious  that  they  claim  title  under  tho  certificate  of  Governor  Stearns 
founded  upon  the  return  of  tho  board  of  State  canvassers.  Unlike 
that,  the  Tildon  electors  allege  that  the  return  which  constitutes  the 
basis  of  that  certificate  is  false  and  fraudulent  and  that  the  canvassers 
tortiously  and  unlawfully  excluded  from  the  count  the  votes  of  one 
county  and  part  of  tho  votes  from  three  other  counties,  for  tho  ex 
press  purpose  of  changing  the  result  and  of  defeating  the  well-known 
choice  of  the  people  at  the  general  election. 

Formal  charges  of  tho  kind  are  made  in  the  objections,  and  are 
also  contained  in  tho  offers  of  proof,  and  tho  counsel  opposing  tho 
certificate  in  question  allege  that  authentic  documents  are  at  hand  to 
prove  those  charges,  and  to  show  that  tho  certificate  signed  by  the 
attorney-general,  which  is  also  based  upon  the  county  returns  filed  in 
the  office  of  tho  secretary  of  state,  expresses  the  true  result  of  tho 
election,  the  solo  difference  being  that  the  attorney-general  in  his 
computation  included  tho  return  from  the  county  of  Manatee  and  the 
votes  from  the  other  three  counties  which  were  excluded  by  the  board 
of  State  canvassers,  and  assertions  of  the  kind  may  be  investigated 
without  difficulty  and  in  a  brief  period. 

Contest  arose  at  the  same  time  between  the  rival  candidates  for  gov 
ernor,  in  consequence  of  which  a  suit  was  commenced  in  the  supreme 
court  of  tho  State  on  tho  relation  of  Georgo  P.  Drew,  one  of  the  can 
didates,  against  Samuel  B.  McLin  and  others,  which  was  decided  on 
the  25th  day  of  December,  1876,  the  court  holding  to  the  effect  that 
tho  State  canvassers  had  no  authority  to  reject  a  county  return  or  the 
votes  given,  except  when  the  canvassers  wore  unable  to  ascertain  for 
whom  they  wore  cast,  for  the  reason  specified  in  tho  fourth  section  of 
the  act  prescribing  their  duties. 

Acquiescence  in  that  decision  was  universal,  and  the  Legislature, 
on  tho  17th  of  January  following,  passed  a  law  creating  a  new  board 
of  State  canvassers,  and  directed  that  a  new  canvass  should  be  made 
of  the  county  returns  of  the  election  hold  on  the  7th  of  November  iu 
the  preceding  year.  Agreeably  to  that  law  the  board  was  organized, 
and  they  recanvassed  tho  same  returns  and  came  to  the  same  result 
as  that  previously  reached  by  the  attorney-general  of  the  State. 

By  the  third  section  of  the  act  they  were  required  to  make  ami 
sign  a  certificate  containing  the  whole  number  of  votes  given  at  the 
election  and  to  declare  the  result,  and  the  further  requirement  is  that 


ELECTORAL  COMMISSION. 


271 


the  certificate  shall  he  recorded  in  the  office  of  the  secretary  of  state. 
Requirements  of  the  kind  were  all  fulfilled  and  the  certificate  was 
duly  made  and  signed,  which  is  the  hasis  of  Certificate  No.  3,  executed 
by  the  present  governor  of  the  State. 

Viewed  in  any  light  it  must  be  admitted  that  it  is  confirmation 
strong  as  Holy  Writ  that  Certificate  No.  2,  signed  by  the  attorney- 
general,  is  true,  and  that  it  gave  the  true  and  honest  result  of  the 
election.  Investigations  made  by  the  Legislature  induced  that  body 
to  come  to  the  same  conclusion,  and  on  the  2Gth  of  January  follow 
ing  the  Legislature  passed  a  statute  in  which  it  is  enacted  that  the 
Tilden  electors,  on  the  7th  of  November  previous,  were  duly  chosen 
and  appointed  electors  by  and  on  behalf  of  the  State  and  in  the 
manner  directed  by  the  Legislature.  "  Each  State  shall  appoint,  in 
such  manner  as  the  Legislature  thereof  may  direct,"  the  number  of 
electors  to  which  the  State  is  entitled,  subject  to  the  exception  therein 
contained. 

None  of  these  proceedings  were  intended  to  choose  new  electors, 
but  merely  to  ascertain  who  were  elected  at  the  antecedent  general 
election,  and  they  show  beyond  peradventure  that  the  return  of  the 
first  board  of  State  canvassers  was  false  and  fraudulent,  and  that  the 
result  could  only  have  been  reached  by  perjury  and  forgery. 

Power  is  certainly  vested  in  a  State  to  appoint  electors  in  such  man 
ner  as  her  Legislature  shall  direct,  and  all  agree  that  the  statute  of 
the  State  required  that  the  electors  should  be  chosen  by  the  qualified 
voters  of  the  State ;  nor  is  it  controverted  by  any  one  that  the  elec 
tion  held  on  the  7th  of  November,  1876,  was  duly  notified  and  regu 
larly  conducted  ;  nor  that  the  returns  of  the  local  officers  were  regu 
larly  and  in  due  form  of  law  made  to  the  county  canvassers. 

Prescribed  duties  are  to  be  performed  by  the  county  canvassers, 
and  they  are  required  to  transmit  their  returns  to  the  secretary  of 
state,  and  it  is  certain  that  the  objections  filed  to  the  respective  cer 
tificates  do  not  impugn  the  county  returns,  nor  is  there  any  evidence 
before  the  Commission  to  justify  any  one  in  calling  those  returns  in 
question  as  irregular,  false,  or  fraudulent.  Imputations  of  the  kind 
are  explicitly  made  against  the  returns  of  the  board  of  State  canvass 
ers,  as  before  fully  explained. 

Electors  are  to  be  appinted  by  the  State,  and  the  State  very  prop 
erly  claimed  the  right  to  inquire  and  ascertain  who  had  been  chosen 
at  the  election  held  for  that  purpose.  Charges  of  fraud,  perjury,  and 
forgery  hanging  over  the  old  board,  the  Legislature,  by  a  public  law 
approved  by  the  governor,  made  provision  for  a  new  board,  and  di 
rected  the  new  board  to  canvass  the  same  county  returns  on  file  in 
the  office  of  the  secretary  of  state,  and  to  report  the  result  of  their 
doings.  They  performed  that  duty,  and  the  Legislature  by  a  public 
act  ratified  their  doings,  and  enacted  that  the  Tildeu  electors  were 
duly  chosen  on  the  7th  of  November  previous,  and  that  they  are  the 
electors  duly  appointed  by  the  State. 

Opposed  to  this  there  is  nothing  to  support  the  pretensions  of  the 
Hayes  electors,  except  the  certificate  of  Governor  Stearns,  founded 
upon  the  return  of  the  old  board  of  State  canvassers. 

These  proceedings  constitute  the  basis  of  Certificate  No.  3,  and  they 
show  that  the  proceedings  and  the  certificate  were  intended  to  con 
firm  as  true  what  is  certified  in  the  certificate  of  the  attorney-gen 
eral,  and  it  is  clear,  in  my  judgment,  they  are  properly  admissible, 
aud  amply  sufficient  for  that  purpose. 

Matters  of  the  sort  may  be  readily  investigated  in  a  very  brief 
space  of  time,  as  every  impartial  person  must  see  from  the  very  na 
ture  of  the  transactions. 

States  may  appoint  electors  in  such  manner  as  their  Legislature 
may  direct,  and  the  judiciary  of  the  State  may  interpret  such  laws, 
aud  the  decision  of  the  State  court  in  such  a  case  must  be  regarded  as 
the  rule  of  decision,  as  appears  by  the  express  enactment  of  Congress, 
(1  Stat.  at  Large,  92;  McKeen  vs.  Delancy,  5  Gran.,  22.)  Circuit  courts 
iu  that  State  have  power  to  issue  writs  of  5110  warranto  and  all  other 
writs  proper  and  necessary  to  the  complete  exercise  of  their  jurisdic 
tion.  (State  Const.,  art.  6,  sec.  8.) 

Proof  of  the  most  satisfactory  character  is  exhibited  in  the  papers 
transmitted  to  the  Commission  that  the  old  board  of  State  canvass 
ers  did  not  complete  their  canvass  until  the  6th  of  December,  1876, 
and  that  the  certificate  given  to  the  supposed  Hayes  electors  bears 
date  on  that  day.  It  appears,  also,  that  the  certificate  given  to  the 
Tilden  electors  and  signed  by  the  attorney-genera1,  bears  the  same 
date,  as  exhibited  in  the  documents  printed  by  order  of  the  Commis 
sion.  Both  sets  of  electors  met  at  the  capital  of  the  State  on  that 
day,  as  required  by  law,  for  the  purpose  of  executing  the  functions 
of  electors,  but  the  Hayes  electors  before  they  voted  were  served  with 
process  in  quo  warranlo  sued  out  from  the  circuit  court  of  the  second 
judicial  circuit  of  the  State  by  the  Tilden  electors.  They  sued  in 
their  own  behalf  as  well  as  in  behalf  of  the  people  of  the  State,  as 
they  had  a  right  to  do  under  the  law  of  the  State,  inasmuch  as  the 
attorney-general  refused  to  institute  the  proper  proceeding. 

Service  being  made,  the  respondents  appeared  and  filed  an  answer. 
Subsequently  proofs  were  taken  on  both  sides,  aud  the  parties  having 
been  fully  heard,  the  court,  on  the  25th  of  January  following,  entered 
a  decree  in  favor  of  the  relators. 

By  that  decree  the  court  adjudged:  (1)  That  the  Hayes  electors 
were  not,  nor  was  any  one  of  them,  elected,  chosen,  or  appointed 
electors.  (2)  That  they  were  not,  on  the  said  6th  of  December,  or 
any  other  time,  entitled  to  assume  or  exercise  any  of  the  powers  and 
functions  of  such  electors.  (3)  That  they  were  upon  the  said  day 


and  date  mere  usurpers,  and  that  all  and  singular  their  acts  and 
doings  as  such  were  and  are  illegal  and  void.  (4)  That  the  Tilden 
electors  all  and  singular  were  at  said  election  duly  elected,  chosen, 
and  appointed  electors  of  the  State,  and  were  on  the  said  6th  of 
December  entitled  to  be  declared  elected,  chosen,  and  appointed  as 
such  electors  and  to  have  and  receive  certificates  to  that  effect,  and 
at  all  times  since  to  exercise  and  perform  all  and  singular  the  powers 
and  duties  of  such  electors. 

Prior  to  the  rendering  of  the  decree  in  this  case  the  new  board  of 
State  canvassers  had  made  their  report,  and  on  the  following  day  the 
Legislature  passed  the  act  to  declare  and  establish  the  appointment 
of  electors,  by  which  it  is  enacted  that  the  Tilden  electors  were,  on 
the  7th  of  November  previous,  duly  chosen  and  appointed  as  such, 
with  all  the  powers  incident  to  such  offices. 

Repeated  admissions  have  been  made  during  the  discussion  that  a 
State  may  determine  what  persons  the  qualified  voters  have  chosen 
and  appointed  electors  of  President  Jiud  Vice-President,  but  the 
proposition  is  advanced  that  the  determination  must  be  made  before 
the  electors  meet  and  cast  their  votes,  and  that  it  cannot  bo  made  a  t 
any  subsequent  time.  Antecedent  investigation  could  not  be  made 
in  this  case  before  »,he  electors  voted,  for  the  reason  that  the  old  board 
of  State  canvassers  did  not  make  their  return  until  the  day  when 
the  votes  were  cast,  nor  were  the  Hayes  electors  furnished  with  the 
certificate  of  the  governor  until  that  day.  All  that  could  he  done  by 
the  way  of  investigation  before  that  time  was  done,  as  appears  by 
the  certificate  of  the  attorney -general,  which  was  also  given  to  the 
Tilden  electors  on  the  same  6th  of  December.  Without  a  moment's 
delay  the  Tilden  electors  sued  out  a  writ  of  quo  warranto  against  the 
usurpers,  and  by  extreme  diligence  caused  it  to  be  served  on  them 
one  hour  before  they  cast  their  votes. 

Weighed  in  the  light  of  these  suggestions,  the  proposition  that  sub 
sequent  investigation  cannot  be  made  is  monstrous,  as  it  shows  a 
mockery  of  justice.  You  may  investigate  before  the  votes  are  cast 
when  it  is  impossible  for  want  of  time,  but  you  shall  not  after  that, 
as  you  would  then  have  an  opportunity  to  ascertain  the  truth ! 

Canvassers  may,  if  they  see  fit,  keep  back  their  report  until  the  day 
appointed  for  the  electors  to  meet,  and  if  they  do  so,  the  effect  of  the 
proposition  is  that  there  can  bo  no  investigation,  no  matter  how  enor 
mous  the  fraud  has  been.  Forgery  and  fraud  ought  not  to  go  unex- 
posed;  but  if  the  proposition  submitted  is  correct,  it  necassarily  fol 
lows  that  the  State  is  powerless  to  protect  itself  from  the  consequences 
of  such  crimes. 

Whatever  could  be  done  by  every  branch  of  the  State  government 
to  establish  the  truth  was  done,  and  if  it  now  be  decided  that  their 
efforts  are  fruitless,  the  effect  must  bo  to  offer  impunity  in  the  future 
to  all  scheming  officers  who  may  tamper  with  subordinate  returns  in 
order  to  change  the  result  of  an  election. 

Opposing  candidates  for  governor  of  the  State  were  in  the  field  at 
the  same  election,  aud  it  appears  that  the  board  of  State  canvassers 
threw  out  sufficient  of  the  county  returns  to  elect  the  incumbent  who 
gave  the  certificate  to  the  Hayes  electors.  His  opponent,  the  present 
governor,  [Drew,]  brought  mandamus  against  the  members  of  the 
canvassing  board,  praying  that  they  may  be  decreed  to  correct  their 
return.  Process  was  served  and  the  respondents  appeared  and  filed 
an  answer.  Both  sides  took  proofs  and  the  parties  went  to  trial. 

Authority  to  issue  mandamus  is  vested  in  all  the  courts  of  the  State. 
The  proceeding  in  this  case  was  iu  the  supremo  court,  and  that  court 
decreed  that  all  that  the  State  board  of  canvassers  can  do  in  such  a 
case  under  the  statute  creating  it  must  be  based  upon  the  returns  ; 
that  everything  they  are  authorized  to  do  is  limited  to  what  is  sanc 
tioned  by  the  authentic  and  true  returns  before  them ;  that  their 
final  act  and  determination  must  be  such  as  appears  from  and  is 
shown  by  the  returns  from  the  several  counties  to  be  correct ;  that 
they  have  no  general  power  to  issue  subpoenas,  to  summon  parties,  to 
compel  the  attendance  of  witnesses,  to  grant  a  trial  by  jury,  or  to  do 
any  act  but  determine  and  declare  who  has  been  elected,  as  xhmvn  by  Ihf. 
returns.  (State  ex  rel.  George  F.  Drew  vs.  Samuel  B.  McLiu  et  ah.,  15 
Florida  R.) 

Special  reference  is  made  in  that  case  to  the  return  from  the  county 
of  Manatee  and  to  those  from  the  three  counties  of  Hamilton,  Jack 
son,  and  Monroe.  By  that  opinion  it  appears  that  the  answer  set  up, 
that  there  was  such  irregularity  and  fraud  in  the  conduct  of  the  elec 
tion  that  the  board  could  not  ascertain  the  true  vote.  Responsive  to 
that  defense  the  court  say  that — 

The  facts  stated  In  the  answer  present  a  Judicial  question  beyond  the  power  and 
jnriHdictiou  of  the  board,  that  a  return  of  votes  cast  iu  a  county  at  8iu-.fi  a  general 
election,  duly  signed  by  the  proper  oflicers  and  regular  iu  form,  *  *  *  in  a  ret  urn 
which  the  State  otticors  must  count,  as  it  is  neither  irregular,  false,  nor  fraudulent 
within  the  meaning  of  the  statute. 

Comment  is  also  made  in  the  same  opinion  upon  the  .action  of  the 
State  board  in  respect  to  the  other  three  counties,  and  the  decision  is 
to  the  effect  that  if  the  return  is  genuine  and  in  due  form,  the  ques 
tion  whether  the  irregularities  shown  to  have  existed  at  the  election 
are  sufficient  to  reject  the  same  is  a  question  of  law  not  within  the 
power  of  the  board  to  determine,  that  what  is  fraud  in  such  an  in 
spector  is  a  question  of  law,  so  also  is  the  question  whether  such  a 
fraud  by  inspectors  can  vitiate  an  election.  Both  are  judicial  ques 
tions  beyond  the  power  of  the  board  to  determine. 

Unless  it  be  denied  that  the  construction  of  a  State  statute  given 
to  it  by  the  supreme  court  of  the  State  furnishes  the  rule  of  decision, 


272 


ELECTORAL  COMMISSION. 


it  would  seem  to  follow  that  the  hoard  of  State  canvassers  exceeded 
their  jurisdiction,  and  if  so  all  must  concede  that  their  acts  are  null 
and  void. 

Five  years  hef  ore  that,  the  supreme  court  of  the  State  decided  that 
the  object  of  the  statute  in  question  is  to  ascertain  the  whole  num 
ber  of  votes  cast  and  who  had  received  the  highest  number  of  votes, 
so  that  the  choice  of  the  majority  of  the  voters  might  be  ascertained 
and  respected,  that  if  the  facts  stated  by  the  relator  were  correct, 
that  returns  made  had  not  been  included  in  the  canvass,  then  the 
board  of  State  canvassers  had  not  performed  their  duty,  that  their 
duties  are  ministerial,  beyond  that  of  determining  that  the  papers 
received  by  them  as  returns  are  genuine  authentic  returns  of  the 
election,  that  they  are  required  by  law  to  meet  on  a  given  day  for 
the  purpose,  aud  may  adjourn  from  day  to  day  until  their  duties  are 
accomplished,  aud  in  case  legal  returns  are  received  by  them  at  any 
time  before  they  complete  the  canvass,  which  would  have  been 
counted  if  received  before  the  canvass  was  commenced,  it  is  their 
duty  to  include  such  in  the  canvass  and  certificate,  and  if  they  re 
fuse  they  may  bo  compelled  by  the  writ  of  mandamus  to  complete 
the  canvass  of  all  the  returns  received,  and  to  certify  the  result  ac 
cording  to  law.  (State  ex  rel.  Bloxham  vs.  The  Board  of  State  Can 
vassers,  13  Florida,  73.) 

Proper  opportunity  to  investigate  such  charges  ought  to  be  per 
mitted  at  some  time,  and  if  it  is  not  possible  to  accomplish  that  ob 
ject  before  the  day  appointed  for  the  meeting  of  the  electors,  justice 
and  necessity  demand  that  it  shall'be  allowed  subsequent  to  that 
time,  for  it  would  be  too  great  a  triumph  for  injustice  to  hold  that  it 
must  bo  postponed  forever  because  the  outrage  was  committed  so 
near  to  the  time  designated  for  the  performance  of  the  duty  that  it 
was  impossible  to  institute  and  close  the  scrutiny  before  the  accesso 
ries  in  guilt  have  actually  enjoyed  the  stolen  privilege  which  belonged 
to  the  complaining  party.  (Queen  vs.  Vestrymen  of  Pancras,  11  Ad. 
&  Ell.,  25.) 

Three  points  were  decided  by  the  exchequer  chamber  in  Kochester 
vs.  The  Queen,  1  Ell.,  Bl.  &  Ell.,  1Q31,  which  support  the  proposition 
that  it  was  not  too  late  to  make  the  investigation  :  (1)  That  the  court 
ought  to  compel  the  performance  of  a  public  duty  by  a  public  officer, 
although  the  time  prescribed  by  statute  for  the  performance  of 
the  same  has  passed.  (2)  That  if  the  public  officer  to  whom  belongs 
the  performance  of  such  a  duty  has  in  the  mean  time  quitted  his  office 
and  has  been  succeeded  by  another,  it  is  the  duty  of  the  successor  to 
obey  the  commands  of  the  court.  ( 3)  That  all  statutes  are  to  be  con 
strued  with  reference  to  the  known,  acknowledged,  recognized,  and 
established  power  of  the  proper  court  to  superintend  and  control  in 
ferior  jurisdictions  and  authorities  of  every  kind. 

Duo  service  of  process  in  the  quo  warranto  suit  was  made  at  the 
earliest  possible  moment,  and  it  is  not  even  suggested  that  any  greater 
diligence  could  have  been  employed  in  bringing  the  litigation  to  a 
close.  Prompt  investigation  was  made  by  the  new  board  of  State 
canvassers,  and  the  Legislature  enacted  the  statute  declaring  that  the 
Tilden  electors  were  duly  chosen  and  appointed  the  next  day  after 
the  decree  was  entered  in  the  quo  warranto  suit.  Neither  the  public 
nor  the  citizens  have  any  power  to  defeat  the  machinations  of  fraud, 
perjury,  and  forgery  if  the  measures  adopted  for  that  purpose  in  this 
case  are  held  to  be  ineffectual  and  insufficient. 

For  these  reasons  I  am  of  the  opinion  that  the  evidence  offered 
should  be  admitted  and  that  the  other  side  should  be  permitted  to 
give  evidence  in  reply. 

Debate  being  closed  the  Commission  adopted  the  following  order, 
moved  by  Mr.  Justice  MILLER  : 

Ordered,  That  no  evidence  will  be  received  or  considered  by  tbe  Commission 
which  was  not  submitted  to  the  joint  convention  of  the  two  Houses  by  the  Presi 
dent  of  tho  Senate,  with  the  different  certificates,  except  such  as  relates  to  the  eli 
gibility  of  F.  (J.  Humphreys,  one  of  the  electors. 


Adopted — yeas  8,  nays  7. 

Commissioner  ABBOTT  moved  tho  following : 

Ordered,  That  in  the  case  of  Florida  tho  Commission  will  receive  evidence  relat 
ing  to  the  eligibility  of  Frederick  C.  Humphreys,  one  of  the  persons  named  in  Cer 
tificate  No.  1,  as  elector. 

Adopted — yeas  8,  nays  7. 

Notice  was  given  to  counsel  of  the  result,  and  that  the  Commission 
was  ready  to  proceed  with  the  case.  Witnesses  were  examined  on 
both  sides  in  respect  to  the  eligibility  of  Frederick  C.  Humphreys  as 
an  elector,  and  their  testimony  is  fully  reported  in  the  record  of  the 
proceeding.  The  testimony  being  closed,  counsel  were  heard  upon 
the  merits  under  tho  third  rule  prescribed  by  the  Commission,  and  at 
the  conclusion  of  the  argument  the  spectators  retired  and  the  Com 
mission  went  into  consultation  with  closed  doors.  Discussion  ensued, 
in  which  several  of  the  members  of  the  Commission  participated. 
During  tho  discussion  as  to  tho  eligibility  of  Frederick  C.  Humphreys, 
Mr.  Justice  CLIFFORD  stated  his  conclusions  on  the  matter,  us  fol 
lows: 

1.  That  no  person  is  eligible  as  an  elector,  or  can  be  lawfully  ap 
pointed  as  such,  who  holds  an  office  of  trust  or  profit  under  the  United 
States  at  the  time  of  the  election  or  appointment. 

2.  That  the  office  of  shipping  commissioner  is  an  office  of  trust  and 
profit  under  tho  United  States. 

3.  That  Frederick  C.  Humphreys  was  legally  appointed  to  that 
office. 

4.  That  the  evidence  introduced  fails  to  show  a  complete  legal  res 
ignation  of  the  office  by  the  incumbent  before  the  7th  of  November, 
1876. 

5.  That  if  he  had  performed  official  acts  after  the  date  of  the  cor 
respondence  between  him  and  the  judge  of  tho  circuit  court,  his  acts 
would  have  been  legal. 

6.  That  if  the  incumbent  had  subsequently  decided,  with  the  con 
sent  of  the  judge,  to  retain  the  office,  ho  might  have  done  so  without 
a  new  appointment,  because  his  letter  to  the  judge  had  never  been 
filed. 

7.  That  inasmuch  as  the  evidence  shows  that  both  the  judge  and 
tho  incumbent  regarded  the  resignation  as  complete,  and  it  appears 
that  the  incumbent  never  did  perform  any  subsequent  official  act,  I 
am  of  the  opinion  that,  in  an.equitable  view,  tho  person  named  ought 
to  be  regarded  as  having  been  eligible  as  an  elector  on  tho  day  when 
the  election  was  held. 

Other  members  of  the  Commission  discussed  the  whole  case  in  view 
of  tho  papers  submitted  to  the  Commission  by  the  President  of  tho 
Senate,  but  Mr.  Justice  CLIFFORD,  believing  that  discussion  would  bo 
unavailing  and  useless,  took  no  further  part  in  the  debate. 

Commissioner  HUNTON  moved  an  order  to  tho  effect  that  the  Tilden 
electors  were  duly  appointed  by  the  State,  and  their  votes  as  certified 
in  Certificate  No.  2  are  the  votes  provided  for  by  the  Constitution. 
Rejected — yeas  7,  nays  8. 

When  that  result  was  announced,  Commissioner  GARFIELD  moved 
that  the  Hayes  electors  were  duly  appointed  and  that  tho  votes  cast 
by  them  are  the  votes  provided  for  by  tho  Constitution;  also,  that 
Commissioner  EDMUNDS,  Mr.  Justice  BRADLEY,  and  Mr.  Justice  MIL 
LER  be  appointed  a  committee  to  draft  a  report  of  the  action  of  the 
Commission,  as  required  by  law.  Adopted — yeas  8,  nays  7. 

None  of  the  subsequent  proceedings  in  the  case  need  be  reproduced, 
as  they  are  given  in  full  in  tho  CONGRESSIONAL  RECORD. 

Like  submissions  were  made  to  the  Commission  in  the  cases  of 
Louisiana,  Oregon,  and  South  Carolina,  the  proceedings  in  which 
cases  are  also  published  iu  the  same  record,  but  Mr.  Justice  CLIF 
FORD  did  not  participate  in  those  discussions,  having  become  thor 
oughly  convinced  that  nothing  he  could  say  would  be  of  any  public 
benefit. 


JOURNAL  OF  THE  ELECTORAL  COMMISSION. 


WASHINGTON  CITY,  January  31,  1877. 

The  Commission  appointed  under  the  act  entitled  "  An  act  to  pro 
vide  for  and  regulate  the  counting  of  votes  for  President  and  Vice- 
President,  and  the  decision  of  question  arising  thereon,  for  the  term 
commencing  March  4,  A.  D.  1877,"  approved  January  29,  1877,  met  in 
the  United  States  Supreme  Court  Room  at  the  Capitol,  at  eleven 
o'clock  in  the  forenoon  this  the  31st  day  of  January,  A.  D.  1877. 

Present :  Justice  Nathan  Clifford,  associate  justice,  assigned  to  the 
first  circuit ;  Justice  Samuel  F.  Miller,  associate  justice,  assigned  to 
the  eighth  circuit;  Justice  Stephen  J.  Field,  associate  justice,  as 
signed  to  the  ninth  circuit;  Justice  W.  Strong,  associate  justice, 
assigned  to  the  third  circuit ;  Justice  Joseph  P.  Bradley,  associate 
justice;  Senators  George  F.  Edmunds,  Allen  G.  Thurnian,  Oliver  P. 
Morton,  Thomas  F.  Bayard,  and  Frederick  T.  Frelinghuyseu  ;  Repre 
sentatives  Henry  B.  Payne,  George  F.  Hoar,  Josiah  G.  Abbott,  James 
A.  Garfield,  and  Eppa  Hunton. 

The  appointment  on  said  Commission  of  Associate  Justice  Joseph 
P.  Bradley  by  the  other  four  Associate  Justices  of  the  Supreme  Court 
above  named,  was  presented  and  read,  as  follows : 

To  the  Hon.  JOSEPH  P.  BRADLEY, 

Associate  Justice  of  the  Supreme  Court  of  the  "United  States  : 

Pursuant  to  the  provisions  of  the  second  section  of  the  act  of  Congress  entitled 
"An  act  to  provide  for  and  regulate  the  counting  of  votes  for  President  and  Viee- 
President,  and  the  decision  of  questions  arising  thereon,  for  tho  term  commencing 
March 4,  A.  D.  1877,"  approved  January  29, 1877,  tho  undersigned,  associate  justices 
of  the  Supremo  Court  of  tho  United  States,  assigned  to  tho  iirst,  third,  eighth,  and 
ninth  circuits,  respectively,  have  this  day  selected  you  to  be  a  member  of  the  Com 
mission  constituted  by  said  act. 

Respectfully,  NATHAN1  CLIFFORD. 

SAMUEL  F.  MILLER. 
STEPHEN  J.  FIELD. 
W.  STRONG. 
WASHINGTON,  January  30, 1877. 

The  following  is  a  copy  of  the  certificate  of  the  appointment  of 
tho  Senators  above  named  as  members  of  the  Commission  : 

L\  THE  SENATE  OF  THE  UNITED  STATES, 
Tuesday,  January  30,  1877. 

Tho  Senate  proceeded,  in  compliance  with  its  order  of  this  day,  to  the  appoint 
ment  by  viva  voce  vote  of  five  Senators  to  bo  members  of  tho  Commission  provided 
for  in  the  act  entitled  "An  act  to  provide  for  and  regulate  the  countin  g  of  votes  for 
President  and  Vice-President,  and  the  decision  of  "questions  arising  thereon,  for 
tho  term  commencing  March  4,  A.  D.  1877,"  approved  January  29,  1877;  and, 

On  taking  and  counting  the  votes,  it  appeared  that  the  following  Senators  were 
duly  and  unanimously  chosen  members  of  the  said  Commission,  namely:  Mr. 
George  F.  Edmunds,  Mr.  Oliver  P.  Morton,  Mr.  Frederick  T.  FrelinghuyHen,  Mr. 
Allen  G.  Thurnian,  Mr.  Thomas  F.  Bayard. 

Attest :  GEO.  C.  GORHAM,  Secretary. 

The  following  is  a  copy  of  the  certificate  of  the  appointment  of 
the  Representatives  above  named  as  members  of  the  Commission  : 

FORTY-FOURTH  CONGRESS,  SECOND  SESSION, 
CONGRESS  OF  THE  UNITED  STATES,  IN  THE  HOUSE  OF  REPRESENTATIVES, 

January  30,  1877. 

The  House  of  Representatives  by  a  viva  wee  vote  appointed  Mr.  Henry  B.  Payne' 
of  Ohio ;  Mr.  Eppa  Hunton,  of  Virginia ;  Mr.  Josiah  G.  Abbott,  of  Massachusetts 
Mr.  George  F.  Hoar,  of  Massachusetts,  and  Mr.  James  A.  GarSeld,  of  Ohio,  mem 
bers  of  the  Commission  on  tho  part  of  the  House  of  Representatives  provided  for 
in  the  act  approved  January  29,  1877,  entitled  "An  act  to  provide  for  and  regulate 
tho  counting  of  votes  for  President  and  Vice-President,  and  tho  decision  of  ques 
tions  arising  thereon,  for  the  term  commencing  March  4,  A.  D.  1877." 

f    SEAL  OF  THE  HOUSE    ?  A +4-«»t  r*~G<f\    -»r     AT>*-«ro    s*i     ^ 

\  OF  REPRESENTATIVES,  j  Att6St:  GEO'   M"  ^AMS,  Clerk. 

Associate  Justice  CLIFFORD  having  made  oath  as  required  by  the 
said  act  before  the  clerk  of  the  Supreme  Court  of  the  United  States, 
and  the  same  having  been  filed  with  the  Secretary  of  the  Senate,  the 
other  members  of  the  Commission  severally  took  and  subscribed  be 
fore  Mr.  Justice  CLIFFORD  the  oath  required  by  the  act,  and  the  Com 
mission  was  organized  and  called  to  order  by  its  President,  NATHAN 
CLIFFORD,  (other  members  of  the  Commission  being  designated  as 
"  Commissioners.") 

On  motion  of  Mr.  Commissioner  THURMAN, 

Resolved,  That  a  committee  of  six  Commissioners,  consisting  of  two  of  the  Su 
premo  Court,  two  of  tho  Senate,  and  two  of  the  House  of  Representatives,  be  ap 
pointed  to  consider  and  propose  such  rules  of  proceeding  and  officers  andomploy6s 
as  may  bo  proper  for  the  Commission,  the  committee  to  bo  appointed  by  the  Presi 
dent. 

The  President  appointed  the  following  as  said  committee  :  Com 
missioners  EDMUNDS,  BAYARD,  MILLER,  FIELD,  PAYNE,  and  HOAR. 
On  motion  of  Mr.  Commissioner  HOAR, 

Ordsred,  That  the  President  appoint  a  teniporory  clerk  until  tho  committee 
named  above  report. 

The  President  appointed  James  H.  McKenney  as  such  clerk. 
On  motion  of  Mr.  Commissioner  HOAR, 

Ordered,  That  the  proceedings  of  the  Commission,  until  otherwise  directed,  be 
considered  confidential,  except  as  to  tho  fact  of  organization. 


The  certificates  of  the  oaths  of  the  members  of  the  Commission 
were  delivered  to  the  clerk,  who  was  directed  to  file  them  with  the 
Secretary  of  the  Senate. 

And,  on  motion  of  Mr.  Commissioner  EDMUNDS,  the  Commission 
took  a  recess  until  four  o'clock  p.  m. 

After  recess, 

The  Commission  re-assembled. 

The  report  of  the  committee  on  rules  was  presented  by  Mr.  Com 
missioner  EDMUNDS. 

On  motion  of  Mr.  Commissioner  BRADLEY,  the  rules  reported  were 
considered  seriatim,  and,  after  being  amended,  were  adopted ;  as  fol 
lows: 

RULE  I. 

The  Commission  shall  appoint  a  secretary,  two  assistant  secretaries,  a  marshal 
and  two  deputy  marshals,  a  stenographer,  and  such  messengers  as  shall  be  need 
ful  ;  to  hold  during  tho  pleasure  of  the  Commission. 

RULE  II. 

On  any  subject  submitted  to  the  Commission,  a  hearing  shall  be  had;  and  coun. 
sel  shall  be  allowed  to  conduct  the  case  on  each  side. 

RULE  III. 

Counsel,  not  exceeding  two  in  number  on  each  side,  will  bo  heard  by  the  Com 
mission  on  the  merits  of  any  case  presented  to  it,  not  longer  than  two  hours  being 
allowed  to  each  side,  unless  a  longer  time  and  additional  counsel  shall  be  specially 
authorized  by  the  Commission.  In  the  hearing  of  interlocutory  questions,  but  one 
counsel  shall  be  heard  on  each  side,  and  he  not  longer  than  fifteen  minutes,  unless 
the  Commission  allow  further  time  and  additional  counsel ;  and  printed  arguments 
will  be  received. 

RULE  IV. 

The  objectors  to  any  certificate  or  vote  may  select  two  of  their  number  to  sup 
port  their  objections  in  oral  argument  and  to  advocate  the  validity  of  any  o-n iii- 
cato  or  vote  the  validity  of  whioh  they  maintain;  and  in  like  manner  the  objectors 
to  any  other  certificate  may  select  two  of  their  number  for  alike  purpose;  but, 
under  this  rule,  not  more  than  four  persons  shall  speak,  and  neither  side  shall  oc 
cupy  more  than  two  hours. 

RULE  V. 

Applications  for  process  to  compel  the  attendance  of  witnesses  or  the  production 
of  written  or  documentary  testimony  may  be  made  by  counsel  on  either  side.  And 
all  process  shall  bo  served  and  executed  by  tho  marshal  of  the  Commission  or  his 
deputies.  Depositions  hereafter  taken  for  use  before  the  Commission  shall  be 
sufficiently  authenticated  if  taken  before  any  commissioner  of  the  circuit  courts  of 
the  United  States,  or  any  clerk  or  deputy  clerk  of  any  couct  of  the  United  States 

RULE  VI. 

Admission  to  the  public  sittings  of  the  Commission  shall  bo  regulated  in  such 
manner  ae  the  President  of  tho  Commission  shall  direct. 

RULE  VII. 

The  Commission  will  sit,  unless  otherwise  ordered,  in  the  room  of  the  Supremo 
Court  of  tho  United  States,  and  with  open  doors,  (excepting  when  in  consultation,) 
unless  otherwise  directed. 

On  motion  of  Mr.  Commissioner  HOAR,  tho  President  was  requested, 
on  consultation  with  Commissioners  EDMUNDS  and  PAYXE,  to  nomi 
nate  officers  to  the  Commission. 

On  motion  of  Mr.  Commissioner  GARFIELD,  the  committee  on  rules 
were  directed  to  report  rules  to  regulate  the  order  of  business  of  the 
Commission. 

On  motion  of  Mr.  Commissioner  FRELI>7GHUYSEN,  the  Commis 
sion  adjourned  until  to-morrow  at  two  o'clock  p.  m. 


WASHINGTON,  D.  C.,  February  1,  1877. 

The  Commission  met  for  consultation,  and  the  President  designated 
the  following  as  officers  of  the  Commission  : 

Secretary — James  H.  McKenuey. 

Assistant  Secretaries — B.  E.  Catlin,  George  A.  Howard. 

Marshal — William  H.  Rearden. 

Deputy  Marshals — Albert  S.  Seely,  J.  C.  Taliaferro. 

Stenographtr — D.  F.  Murphy. 

The  doors  were  then  opened  and  the  Commission  continued  its  ses 
sion  in  public. 

Journal  of  yesterday  was  read,  corrected,  and  approved. 

A  communication  from  the  two  Houses  of  Congress,  in  joint  ses 
sion,  was  presented  by  Mr.  Gorham,  Secretary  of  the  Senate,  and  read 
as  follows : 

HALL  OF  THE  HOUSE  OF  REPRESENTATIVES, 

February  I,  1877. 
To  the  President  of  the  Commission : 

More  than  one  return  or  paper  purporting  to  be  a  return  or  certificate  of  elect 
oral  votes  of  the  State  of  Florida  having  been  received  and  this  day  opened  in  the 
presence  of  the  two  Houses  of  Congress,  and  objections  thereto  having  been  made, 
the  said  returns,  with  all  accompanying  papers,  and  also  tho  objections  thereto, 
are  herewith  submitted  to  the  judgment  and  decision  of  tho  Commission,  as  pro 
vided  by  law. 

T.  W.  FERRY, 
President  of  the  Senate. 


18 


274 


ELECTORAL  COMMISSION. 


On  motion  of  Mr.  Commissioner  PAYNE, 

Ordered  That  the  certificates  purporting  to  be  the  electoral  vote  of  the  State  of 
Florida,  and  accompanying  papers,  together  with  the  objections  thereto,  bo  printed. 

In  reply  to  an  interrogatory  of  the  President,  as  to  who  would  ap 
pear  as  the  objectors,  response  was  made  that  Senators  Conover,  Sar 
gent,  and  Sherman,  and  Eepresentatives  McCrary,  Kasson,  Wood- 
burn,  and  Dunnell,  were  the  objectors  to  Certificate  No.  2 ;  and  that 
Senators  Jones  and  Cooper,  and  Representatives  Thompson,  Jenks, 
and  Field,  were  the  objectors  to  Certificate  No.  1.  And  in  reply  to  an 
interrogatory  of  the  President,  ad  to  who  would  appear  as  counsel, 
response  was  made  that  Messrs.  O'Conor,  Black,  Trumbull,  Mer 
rick,  and  Green  would  appear  as  counsel  in  opposition  to  Certificate 
No.  1 ;  and  that  Messrs.  Evarts,  Stoughton,  Mathews,  and  Shella- 
barger  would  appear  as  counsel  in  opposition  to  certificate  No.  2. 

And  on  motion  of  Mr.  Commissioner  EDMUNDS,  the  public  session 
of  the  Commission  adjourned  until  half  past  ten  o'clock  a.  m.,  to 
morrow. 

The  room  being  cleared,  and  doors  closed,  the  Commission  resumed 
its  session  for  deliberation. 

On  motion  of  Mr.  Commissioner  EDMUNDS, 

Ordered,  That  Commissioners  ABBOTT  and  HOAR  be  a  committee  to  consider 
and  report  whether  certain  papers  referred  to  in  the  objections  ot  C.  W.  Jones 
and  others  ought  bo  printed  for  use  of  tho  Commission. 

And  on  motion  of  Mr.  Commissioner  HOAR,  it  was 
Ordered,  That  no  action  be  taken  by  the  committee  referred  to  above  until  the 
next  meeting  of  the  Commission  for  consultation. 

On  motion  of  Mr.  Commissioner  MILLER, 

Ordered,  That  the  objections  to  certificates  in  the  Florida  case  be  heard  as  one 
objection  to  each  set  of  electors,  and  be  aigued  together. 

On  motion  of  Mr.  Commissioner  EDMUNDS,  the  Secretary  was  di 
rected  to  prepare  and  have  printed  on  slips  the  names  of  the  mem 
bers  of  the  Commission,  in  alphabetical  order,  to  be  used  in  taking 
votes. 

And  on  motion  of  Mr.  Commissioner  HOAR,  the  Secretary  was  di 
rected  to  have  such  laws  printed  for  the  use  of  th«i  Commission  is 
may  be  directed  by  the  President. 

And  on  motion  of  Mr.  Commissioner  MORTON,  the  above  motion  was 
amended  so  as  to  include  the  election  laws  of  the  States  of  Florida, 
Louisiana,  Oregon,  and  South  Carolina. 

And  on  motion  of  Mr.  Commissioner  STRONG,  (at  four  o'clock  and 
forty-five  minutes  p.  m.,)  the  Commission  adjourned. 


WASHINGTON,  D.  C.,  February  2,  1877. 

The  Commission  met  at  ten  o'clock  and  thirty  minutes  a.  m.,  pur 
suant  to  adjournment. 

Journal  of  yesterday  was  read  and  approved. 

Before  proceeding  in  the  matter  of  the  electoral  vote  of  the  State 
of  Florida, 

The  PRESIDENT  instructed  the  gentlemen  appearing  on  lehalf  of 
the  objectors  as  to  the  time  allowed  for  argument  by  the  rules  of  the 
Commission,  and  the  argument  on  behalf  of  the  objectors  to  Certificate 
No.  1  was  proceeded  with  by  Representative  Field,  of  New  York,  and 
the  same  was  concluded  by  "Representative  Tucker,  of  Virginia. 

Thereupon,  Representative  Kasson,  of  Iowa,  asked  leave  until  to 
morrow,  to  allow  opportunity  to  prepare  argument,  before  proceeding 
on  behalf  of  the  objectors  to  Certificate  No.  2. 

And  the  question,  on  being  submitted  to  the  Commission,  was  de 
cided  in  the  negative. 

And  on  motion  of  Mr.  Commissioner  MILLER  that  a  delay  be  granted, 
so  as  to  allow  the  objectors  further  time,  the  Commission  accordingly 
took  a  recess  until  three  o'clock  p.  m. 

On  re-assembling  Representative  Kasson,  of  Iowa,  proceeded  with 
the  argument  on  behalf  of  the  objectors  to  Certificate  No.  2,  and  the 
same  was  concluded  by  Representative  McCrary,  of  Iowa. 

After  response  by  counsel  in  reply  to  the  interrogatories  of  the 
President  respecting  the  presentation  of  evidence  before  proceeding 
with  argument, 

On  motion  of  Mr.  Commissioner  EDMUNDS,  (at  five  o'clock  p.  m.,) 
tho  Commission  adjourned  until  half  past  ten  a.  m.  to-morrow. 


WASHINGTON,  D.  C.,  February  3,  1877. 

The  Commission  met  at  ten  o'clock  and  thirty  minutes  a.  m.,  pur 
suant  to  adjournment,  all  the  members  being  present. 

Journal  of  yesterday  was  read  and  approved. 

The  Commission  having  under  consideration  the  matter  of  the  elect 
oral  vote  of  the  State  of  Florida,  and  after  remarks  in  regard  to 
whether  any  and  what  evidence  would  be  considered  by  the  Commis 
sion, 

Mr.  Commissioner  MILLER  submitted  the  following  : 

Ordered,,  That  counsel  be  allowed  two  hours  on  each  side  to  discuss  the  question 
whether  any  evidence  will  bo  considered  by  tho  Commission  that  was  not  submit 
ted  to  the  two  Houses  by  tho  President  of  the  Senate,  and  if  so,  what  evidence  can 
properly  be  considered ;  and  also  the  question,  what  is  the  evidence  now  before  tho 
Commission. 

Mr.  Commissioner  HOAR  offered  tho  following  as  a  substitute : 


Ordered,  That  counsel  be  now  heard  for  two  hours  on  each  side  upon  the  effect 
of  the  matters  laid  before  the  two  Houses  by  tho  President  of  tho  Senate,  and  of 
the  offer  of  testimony  made  by  Mr.  O'Conor  and  objected  to  by  Mr.  Evarts. 

The  question  being  on  the  adoption  of  the  substitute, 

It  was  decided  in  the  negative. 

And  the  question  recurring  on  the  adoption  of  the  motion  as  offered 
by  Mr.  Commissioner  MILLER, 

It  was  determined  in  the  affirmative. 

On  request  of  Mr.  Evarts,  of  counsel,  it  was  ordered  that  there  bo 
allowed  to  each  side  one  additional  hour  for  argument. 

The  PRESIDENT  proceeded  to  instruct  counsel  that  argument 
would  first  be  heard  from  counsel  in  opposition  to  Certificate  No.  1, 
to  be  followed  by  counsel  in  opposition  to  Certificate  No.  2,  and  to 
continue  in  that  manner  until  conclusion  of  argument. 

And  at  twelve  o'clock  noon,  it  was  ordered  that  the  Commission 
take  a  recess  for  half  an  hour. 

On  re- assembling, 

On  motion  of  Mr.  Commissioner  STRONG,  it  was  ordered  that,  on 
the  question  of  the  admission  of  evidence,  the  argument  bo  opened  by 
two  and  concluded  by  one  counsel  on  each  side. 

And  argument  of  counsel  in  opposition  to  Certificate  No.  1  was  pro 
ceeded  with  by  Mr.  Merrick,  and  continued  by  Mr.  Black. 

On  leave,  Mr.  Merrick,  of  counsel,  presented  brief  of  case  pending 
before  the  Commission  as  prepared  by  Mr.  Green,  of  counsel;  which 
was  received  and  filed. 

And  argument  of  counsel  in  opposition  to  Certificate  No.  2  was  pro 
ceeded  with  by  Mr.  Mathews  and  continued  by  Mr.  Stoughton,  until 
three  o'clock  and  thirty-seven  minutes. 

And  on  motion  of  Mr.  Commissioner  STRONG,  (at  three  o'clock  and 
forty  minutes  p.  m.,)  tho  Commission  adjourned  until  eleven  o'clock 
a.  m.  Monday,  the  5th  instant. 


WASHINGTON,  D.  C.,  February  5,  1877. 

The  Commission  met  at  eleven  o'clock,  a.  m.,  pursuant  to  adjourn 
ment,  all  the  members  being  present. 

Journal  of  Saturday  was  read  and  approved. 

And  in  the  matter  pending  before  tho  Commission,  whether  any  and 
what  evidence  would  be  considered,  the  argument  began  on  Satur 
day,  the  3d  instant,  was  concluded  by  Mr.  Evarts,  of  counsel,  in  op 
position  to  Certificate  No.  2,  and  by  Mr.  O'Couor,  of  counsel,  in  opposi 
tion  to  Certificate  No.  1. 

At  two  o'clock  and  thirty  minutes  p.  m.  the  President  announced 
that  the  public  sitting  of  the  Commission  was  now  adjourned. 

And  on  motion  of  Mr.  Commissioner  EDMUNDS,  a  recess  was 
taken  for  three-quarters  of  an  hour. 

The  recess  having  expired,  the  Commission  re-assembled,  with  closed 
doors,  for  deliberation  as  to  whether  any  and  what  evidence  would 
be  considered  in  the  matter  of  tho  electoral  vote  of  the  State  of 
Florida. 

After  remarks, 

On  motion  of  Mr.  Commissioner  EDMUNDS, 

Ordered,  That  when  the  Commission  adjourn  it  be  until  to-morrow  (Tuesday)  at 
twelve  o'clock  noon. 

On  motion  of  Mr.  Commissioner  TIIURMAN, 

Ordered,  That  the  public  session  of  the  Commission  be  adjourned  until  "Wednes 
day,  (the  7th  instant,)  at  eleven  o'clock  a.  m. 

And  on  motion  of  Mr.  Commissioner  HUNTON,  (at  three  o'clock  and 
forty-five  minutes  p.  m.,)  the  Commission  adjourned. 


WASHINGTON,  D.  C.,  February  6,  1877. 

The  Commission  met  at  twelve  o'clock  noon,  pursuant  to  adjourn 
ment,  all  the  members  being  present. 

Journal  of  yesterday  was  read  and  approved,  and  the  Commission 
resumed  its  deliberation  in  the  matter  of  the  electoral  vote  of  the 
State  of  Florida. 

After  debate, 

On  motion  of  Mr.  Commissioner  BRADLEY,  (at  three  o'clock  p.  m.,) 
the  Commission  took  a  recess  of  half  an  hour. 

On  re-assembling,  the  Commission  resumed  its  session. 

After  debate, 

Mr.  Commissioner  STRONG,  (at  seven  o'clock  and  forty  minutes  p. 
m.,)  moved  that  the  vote  on  the  question  now  pending  be  taken  at  an 
hour  not  later  than  three  o'clock  p.  m.  to-morrow  ;  and  the  question, 
on  being  submitted  by  the  President,  was  decided  in  tho  affirmative.. 

On  motion  of  Mr.  Commissioner  GARFIELD, 

Ordered,  That  when  the  Commission  adjourn  it  be  until  ten  o'clock  a.  m.  to-mor 
row. 

And,  on  motion  of  Mr.  Commissioner  PAYNE,  (at  seven  o'clock  and 
forty-five  minutes  p.  m.,)  the  Commission  adjourned. 

WASHINGTON,  D.  C.,  February  7,  1877. 

The  Commission  met  at  ten  o'clock  a.  m.,  pursuant  to  adjournment, 
all  the  members  being  present. 
Journal  of  yesterday  Avas  read  and  approved. 
The  PRESIDENT  stated  that,  on  the  oth  instant,  an  order  had  been 


ELECTORAL  COMMISSION. 


275 


made  requiring  an  open  session  of  the  Commission  at  eleven  o'clock 
a.  m.  to-day. 

And  on  motion  of  Mr.  Commissioner  FRELINGHUYSEN. 

Ordered,  That  at  eleven  o'clock  a.  m.,  the  hour  designated  by  the  order  of  the 
5th  instant,  requiring  an  open  seasion,  the  doors  be  considered  as  open,  and  tho 
Commission  at  once  adjourn  tho  same  for  deliberation. 

After  debate, 

The  hour  of  eleven  o'clock  a.  m.  having  arrived,  and  the  doors  be 
ing  considered  as  open, 
On  motion  of  Mr.  Commissioner  MORTON, 

Ordered,  That  the  public  session  of  tlie  Commission  bo  adjourned  until  eleven 
o'clock  a.  m.  to-morrow 

And  the  Commission  resumed  its  session  for  deliberation,  with 
closed  doors. 

After  further  debate, 

Tho  hour  of  three  o'clock  having  arrived,  being  the  time  designated 
by  an  order  of  the  Commission  at  which  the  question  on  the  matter 
pending  should  be  submitted, 

Mr.  Commissioner  MILLER  offered  the  following : 

Ordered,  That  no  evidence  will  be  received  or  considered  by  the  Commission 
•which  was  not  submitted  to  the  joint  convention  of  the  two  Houses  by  the  Presi 
dent  of  the  Senate  with  the  different  certificates,  except  such  as  relates  to  the  eli 
gibility  of  F.  C.  Humphries,  one  of  the  electors. 

The  question  being  on  its  adoption, 

It  was  determined  in  the  affirmative, 

YEAS 8 

NAYS 7 

Those  who  voted  in  the  affirmative  are :  Messrs.  Bradley,  Edmunds, 
Frelinghuyseu,  Garh'eld,  Hoar,  Miller,  Morton,  and  Strong. 

Those  who  voted  in  the  negative  are :  Messrs.  Abbott,  Bayard,  Clif 
ford,  Field,  Hunton,  Payne,  and  Thurinan. 

Mr.  Commissioner  ABBOTT  offered  the  following  : 

Ordered,  That  in  the  case  of  Florida,  this  Commission  will  receive  evidence  re 
lating  to  tho  eligibility  of  Frederick  C.  Humphries,  one  of  the  persons  named  in 
Certificate  No.  1,  as  elector. 

The  question  being  on  its  adoption, 

It  was  determined  in  the  affirmative, 

YEAS 8 

NAYS 7 

Those  who  voted  in  the  affirmative  are :  Messrs.  Abbott,  Bayard, 
Bradley,  Clifford,  Field,  Huntou,  Payne,  and  Thurman. 

Those  who  voted  in  the  negative  are  :  Messrs.  Edmunds,  Freling- 
liuysen,  Garfield,  Hoar,  Miller,  Morton,  and  Strong. 

So  tho  order  was  agreed  to. 

On  motion  of  Mr.  Commissioner  HOAR, 

Ordered,  That  the  procedings  of  to-day's  session,  as  entered  in  the  Journal,  bo 
read  by  the  Secretary  at  the  public  session  of  the  Commission  to-morrow. 

On  motion  of  Mr.  Commissioner  THURMAN, 

Ordered,  That  the  Secretary  of  tho  Commission  is  hereby  directed  to  furnish  im 
mediately  to  counsel  on  both  sides  copies  of  the  orders  made  to-day,  and  to  notify 
them  that  the  Commission  will  be  ready  at  eleven  o'clock  a.  m.  to-'morrow  to  pro 
ceed  with  the  case  now  before  them. 

And  on  motion  of  Mr.  Commissioner  MILLER,  (at  three  o'clock  and 
forty-five  minutes,  p.  m.,)  the  Commission  adjourned. 


WASHINGTON,  D.  C.,  February  S,  1877. 

The  Commission  met  at  eleven  o'clock  a.  m.,  all  the  members  be 
ing  present. 

Journal  of  yesterday  was  read  and  approved. 

The  PRESIDENT  stated  that  in  the  matter  pending,  relating  to  the 
electoral  vote  of  the  State  of  Florida,  the  Commission  would  proceed 
as  directed  in  the  orders  adopted  at  its  session  on  yesterday. 

On  request  by  Mr.  Merrick,  of  counsel, 

Ordered,  That  the  marshal  be  directed  to  admit  to  tho  session  of  the  Commission 
such  witnesses  as  may  be  designated  by  counsel. 

The  PRESIDENT  stated  that  unless  objection  was  made,  the  Secre 
tary  of  the  Commission  would  administer  oath  to  witnesses;  and  there 
being  no  objection,  it  was  so  ordered. 

In  the  matter  of  the  eligibility  of  F.  C.  Humphries,  an  elector  of 
the  State  of  Florida, 

Mr.  Green,  of  counsel,  called  as  witnesses  George  P.  Raney  and 
James  E.  Yonge,  of  Florida. 

And  after  the  examination  of  said  witnesses, 

Counsel  submitted  as  evidence  certified  copy  of  an  order  of  United 
States  circuit  court,  northern  district  of  Florida,  bearing  date  Decem 
ber  3,  1872,  appointing  Frederick  C.  Humphries  a  shipping  commis 
sioner  for  the  port  of  Pensacola,  Florida. 

Mr.  Stoughton,  of  counsel,  called  F.  C.  Humphries,  of  Florida,  a 
witness.  And  after  the  examination  of  said  witness, 

Counsel  submitted  as  evidence  an  acceptance  of  the  resignation  of 
F.  C.  Humphries  as  shipping  commissioner  for  the  port  of  Pensacola, 
Florida,  bearing  date  October  2,  1876,  and  signed  by  W.  B.  Woods, 
United  States  circuit  judge. 

Also, 

Letter  dated  Newark,  Ohio,  October  2,  1876,  addressed  to  Major 
F.  C.  Humphries,  Peusacola,  Florida,  and  signed  by  W.  B.  Woods,  in 
closing  an  acceptance  of  the  resignation  of  said  Humphries  as  ship 
ping  commissioner  for  the  port  of  Pensacola,  Florida. 


Also, 

Letter  dated  custom-house,  Pensacola,  Florida,  collector's  office, 
October  5,  1876,  addressed  to  F.  C.  Humphries,  Pensacola,  Florida, 
and  signed  by  Hiram  Potter,  jr.,  collector  customs,  requiring  said 
Humphries  to  turn  over  to  the  collector  of  customs  such  public  books, 
papers,  records,  &c.,  as  pertained  to  the  office  of  shipping  commis- 
uoner. 

The  PRESIDENT  informed  counsel  that  argument  would  be  heard 
as  provided  by  Rule  III  of  the  Rules  of  the  Commission,  upon  the 
whole  case  now  pending;  and  that  counsel  proceed  in  the  same  man 
ner  as  formerly,  to  wit :  that  argument  be  made  first  by  counsel  in 
opposition  to  Certificate  No.  1,  to  be  followed  by  counsel  in  opposition 
to  Certificates  Nos.  2  and  3,  and  to  continue  in  that  manner  until  the 
time  allowed  for  argument  has  expired. 

Mr.  Merrick,  of  counsel,  asked  that  one  hour,  in  addition  to  tho 
time  allowed  by  Rule  III,  be  granted  counsel  for  argument. 

The  question,  on  being  submitted  to  the  Commission,  was  decided 
in  the  affirmative. 

And  argument  on  the  question  pending  was  proceeded  with  sev 
erally  by  the  following  as  counsel :  Mr.  Hoadly  and  Mr.  Green  in 
opposition  to  Certificate  No.  1,  and  Mr.  Shellabarger  and  Mr.  Evarts 
in  opposition  to  Certificates  Nos.  2  and  3;  and  the  same  was  con 
cluded  by  Mr.  Merrick  in  opposition  to  Certificate  No.  1. 

The  PRESIDENT  (at  four  o'clock  and  forty-seven  minutes  p.  m.) 
stated  that  the  public  session  of  the  Commission  was  adjourned. 

And  before  the  doors  were  closed, 

Mr.  Commissioner  PAYNE  moved  that  the  Commission  adjourn 
until  ten  o'clock  a.  rn.  to-morrow. 

The  question  being  on  its  adoption, 

It  was  decided  in  the  affirmative : 

YEAS g 

NAYS '..'..'.  7 

Those  who  voted  in  the  affirmative  are  :  Messrs.  Abbott,  Bayard, 
Bradley,  Clifford,  Field,  Huutou,  Payne,  and  Thurman. 

Those  who  voted  in  the  negative  are :  Messrs.  Edmunds,  Freling- 
huysen,  Garfield,  Hoar,  Miller,  Morton,  and  Strong. 

So  the  motion  was  agreed  to. 

And  the  Commission,  (at  four  o'clock  and  fifty  minutesp.  m.)  accord 
ingly  adjourned. 

WASHINGTON,  D.  C.,  February  9,  1867. 

Tho  Commission  met  at  ten  o'clock  a.  ni.  ,pnrsuant  to  adjournment. 

Journal  of  yesterday  was  read  and  approved. 

On  motion  of  Mr.  Commissioner  MORTON, 

Ordered,  That  the  Commission  do  now  adjourn  for  deliberation. 

And  (at  ten  o'clock  and  seventeen  minutes)  the  doors  being  closed, 
the  Commission  met  for  deliberation  in  the  matter  of  the  electoral 
vote  of  the  State  of  Florida. 

After  debate, 

On  motion  of  Mr.  Commissioner  THURMAN,  (at  one  o'clock  and 
thirty-seven  minutes,)  the  Commission  took  a  recess  for  half  an  hour. 

The  recess  having  expired,  the  Commission  resumed  its  session  for 
deliberation. 

After  further  debate, 

On  mot  ion  of  Mr.  Commissioner  STRONG,  it  was 

Ordered,  That  debate  on  tho  question  pending  be  closed  on  or  before  six  o'clock 
p.m. 

Mr.  Commissioner  EDMUNDS  moved  tho  following: 

Ordered,  That  after  six  o'clock  p.  m.  each  Commissioner  be'allowed  to  speak  but 
once  and  not  longer  than  live  minutes. 

The  question,  on  being  submitted,  was  decided  in  the  affirmative. 

After  debate, 

Mr.  Commissioner  THURMAN  offered  the  following : 

Resolved,  That  F.  C.  Humphries  was  not  a  "United  States  shipping  commissioner 
on  the  7th  day  of  November,  187C. 

And  after  remarks  thereon,  the  resolution  was  withdrawn. 
Mr.  Commissioner  EDMUNDS  offered  the  following : 

Resolved,  That  the  following  be  adopted  as  the  decision  of  the  Commission  in  the 
case  of  Florida : 

ELECTORAL  COMMISSION, 
Washington,  D.  C.,  February  9,  A.  D.  1877. 

To  the  President  of  the  Senate  of  tho  United  States,  presiding  in  the  meeting  of  the 
two  Houses  of  Congress,  under  the  act  of  Congress  entitled  "An  act  to  provide 
for  and  regulate  the  counting  of  the  votes  for  President  and  Vice-President,  and 
the  decision  of  questions  arising  thereon,  for  the  term  commencing  March  4, 
Anno  Domini  eighteen  hundred  and  seventy-seven,"  approved  January  29,  A.  D. 
1877. 

Tho  Electoral  Commission  mentioned  in  said  act  having  received  certain  certifi 
cates  and  papers  purporting  to  be  certificates,  and  papers  accompanying  tho 
same,  of  the  electoral  votes  from  tho  State  of  Florida,  and  the  objections  there 
to  submitted  to  it,  under  said  act,  now  report  that  it  has  dulf  considered  the 
same  pursuant  to  said  act,  and  has  decided,  and  does  hereby  decide,  that  the 
votes  of  Frederick  C.  Humphries,  Charles  II.  Pearco,  William  H.  Holden,  and 
Thomas  W.  Long,  named  in  tho  certificate  of  M.  ~L.  Stearns,  governor  of  said 
State,  which  votes  are  certified  by  said  persons  as  appears  by  the  certificate  sub 
mitted  to  tho  Commission,  as  aforesaid,  and  marked  "number  one,"  by  said 
Commission  and  herewith  returned,  are  the  votes  provided  for  by  tho  Constiuition 
of  tho  United  States,  and  that  the  same  are  lawfully  to  be  counted  as  therein  cer 
tified,  namely:  Four  (4)  votes  for  Kutherford  I!.  Hayes,  of  the  State  of  Ohio,  for 
President,  and  four  (4;  votes  for  William  A.  Wheeler,  of  tho  State  of  New  York,  for 
Vice-Presiden  t. 
The  Commission  also  has  decided,  mid  hereby  decides  and  reports,  that  the  four 


276 


ELECTOEAL  COMMISSION. 


persons  first  before  named  were  duly  appointed  electors  in  and  by  said  State  of 
Florida. 

The  brief  ground  of  this  decision  is,  that  it  appears  upon  anch  evidence  as  by  the 
Constitution  and  the  law  named  in  said  act  of  Congress  is  competent  and  pertinent 
to  the  consideration  of  the  subject  that  the  before-mentioned  electors  appear  to 
have  been  lawfully  elected  such  electors  of  President  and  Vice-President  of  the 
United  States  for  the  term  beginning  March  4, 1877,  of  the  State  of  Florida,  and  that 
they  voted  as  such  at  the  time  and  in  the  iiianuer  provided  for  by  the  Constitution 
of  the  United  States  and  the  law. 

The  Commission  has  also  decided,  and  does  hereby  decide  and  report,  that  as  a 
consequence  of  the  foregoing  and  upon  the  grounds  before  stated,  neither  of  tke 
papers  purporting  to  be  certificates  of  the  electoral  votes  of  said  State  of  Florida, 
numbered  two  (2)  and  three  (3)  by  the  Commission  and  herewith  returned,  are 
the  certificates  or  the  votes  provided  for  by  the  Constitution  of  the  United  States, 
and  that  they  ought  not  to  be  counted  as  such. 

Done  at  Washington  the  day  and  year  first  above  written. 

Mr.  Commissioner  HUNTON  moved  the  following  as  a  substitute; 

That  the  electors  named  in  certificate  number  two,  to  wit,  Wilkinson  Call,  J- 
E.  Tonge,  Robert  Bullock  and  Robert  15.  Hilton,  are  the  four  persons  who  were 
duly  appointed  electors  by  the  State  of  Florida,  on  the  7th  day  of  Noveniber,  1876, 
ami  that  their  votes,  as  certified  in  such  certificate,  are  the  votes  provided  for  by 
the  Constitution  of  the  United  States. 

The  question  being  on  its  adoption, 

It  was  determined  in  the  negative, 

YEAS 7 

NAYS 8 

Those  who  voted  in  the  affirmative  are:  Messrs.  Abbott,  Bayard, 
Clifford,  Field,  Hunton,  Payne,  and  Thurmaii. 

Those  who  voted  in  the  negative  are  :  Messrs.  Bradley,  Edmunds, 
Frelinghuysen,  Garfield,  Hoar,  Miller,  Morton,  and  Strong. 

So  the  substitute  was  not  agreed  to. 

Thereupon  the  resolution  offered  by  Mr.  Commissioner  EDMUNDS 
was  withdrawn. 

Mr.  Commissioner  GARFIELD  oifered  the  following  resolutions: 

Resolved,  That  the  four  persons,  to  wit,  Frederick  C.  Humphries,  Charles  H. 
Pearce,  William  H.  Holrten,  and.  Thomas  W.  Long,  were  duly  appointed  electors  of 
President  and  Vice-Presidont  for  the  State  of  Florida  ;  and  that  the  votes  cast  by 
the  aforesaid  four  persons  are  the  votes  provided  for  by  the  Constitution  of  the 
United  States. 

Resolved,  That  Mr.  EDMUNDS,  Mr.  BRADLEY,  and  Mr.  MILLER  be  appointed  a  com 
mittee  to  draft  a  report  of  the  action  of  the  Commission,  as  required  by  law. 

The  question  being  on  the  adoption  of  the  first  resolution, 

It  was  decided  in  the  affirmative, 

YEAS 8 

NAYS 7 

Those  who  voted  in  the  affirmative  are:  Messrs.  Bradley,  Edmunds, 
Frelinghuysen,  Garfield,  Hoar,  Miller,  Morton,  and  Strong. 

Those  who  voted  in  the  negative  are :  Messrs.  Abbott,  Bayard,  Clif 
ford,  Field,  Hunton,  Payne,  and  Thurmau. 

So  the  resolution  was  agreed  to. 

And  the  question  being  on  the  adoption  of  the  second  resolution,  it 
was  decided  in  the  affirmative. 

And  on  motion  of  Mr.  Commissioner  EDMUNDS,  (at  six  o'clock  and 
five  minutes  p.  m.,)  the  Commission  took  a  recess  for  one  hour. 

On  re-assembling, 

Mr.  Commissioner  EDMUNDS,  on  behalf  of  the  committee  appointed 
to  prepare  a  report  of  the  Commission  in  the  matter  of  the  electoral 
vote  of  the  State  of  Florida,  ottered  the  following: 

Ordered,  That  the  following  be  adopted  as  the  final  decision  and  report  in  the 
matters  submitted  to  the  Commission  as  to  the  electoral  vote  of  the  State  of  Flor 
ida: 

ELECTORAL  COMMISSION, 
Washington,  D.  O.,  February  9,  A.  D.  Is77. 

To  the  President  of  the  Senate  of  the  United  States,  presiding  in  the  meeting  of 
the  two  Houses  of  Congress,  under  the  act  of  Congress  entitled  "An  act  to  pro 
vide  for  and  regulate  the  counting  of  the  votes  for  President  and  Vice-President, 
and  the  decision  of  questions  arising  thereon,  for  the  term  commencing  March 
4.  A.  D.  1877,"  approved  January  29,  1877. 

The  Electoral  Commission  mentioned  in  said'act,  having  received  certain  certifi 
cates  and  papers  purporting  to  bo  certificates,  and  papers  accompanying  the  same, 


erickC.  Humphries,  Charles  H.  Pearce,  William  it.  Holden,  and  Thomas  W.  Lon,^, 
named  in  the  certificate  of  M.  L.  Stearns,  governor  of  said  State,  which  votes  are 
certified  by  said  persons,  as  appears  by  the  certificate  submitted  to  theCommission,  as 
aforesaid,  and  marked  "  number  one"  by  said  Commission  and  here  with  re  turned,  are 
the  votes  providedi'or  by  the  Constitution  of  the  United  States,  and  that  the  samcare 
lawfully  to  be  counted  as  therein  certified,  namely :  Four  votes  for  Rutherford  B. 
Hayes,  of  the  State  of  Ohio,  for  President,  and  foiir  votes  for  William  A.  Wheeler, 
of  the  State  of  New  York, for  Vice-President. 

The  Commission  has  also  decided,  and  hereby  decides  and  reports,  that  the  four 
persons  first  before  named  were  duly  appointed  electors  in  and  by  said  State  of 
Florida. 

The  ground  of  this  decision  stated  briefly,  as  required  by  said  act,  is  as  follows : 

That  it  is  not  competent  under  the  Constitution  and  tho'law,  as  it  existed  at  the 
dale  of  the  passage  of  said  aet,  to  go  into  evidence  aliunde  the  papers  opened  by 
the  President  of  the  Senate  in  the  presence  of  the  two  Houses  to  prove  that  other 
persons  than  those  regularly  certified  to  by  the  governor  of  the  State  of  Florida, 
in  and  according  40  the  determination  and  declaration  of  their  appointment  by  the 
board  of  State  canvassers  of  said  State  prior  to  the  time  required  for  the  perform 
ance  of  their  duties,  had  been  appointed  electors,  or  by  counter-proof  to  show  that 
they  had  not,  and  that  all  proceedings  of  the  courts  or  acts  of  the  Legislature  or 
of  the  executive  of  Florida,  subsequent  to  the  casting  of  the  votes  of  the  electors 
on^tho  prescribed  day,  are  inadmissible  for  any  such  purpose. 

'  ?s,  the  Commission  is 
i  effect  of  the  vote  of 

.. the  office  of  shipping 

commissioner  on  the  day  when  the  electors  were  appointed. 

Tho  Commission  has  also  decided,  and  does  hereby  decide  and  report,  that,  as  a 
consequence  of  the  foregoing,  and  upon  the  grounds  before  stated,  neither  of  the 


papers  purporting  to  be  certificates  of  the  electoral  votes  of  said  State  of  Florida, 
numbered  two  (2)  and  three  i'3)  by  the  Commission  and  herewith  returned,  are  the 
certificates,  or  the  votes  provided  for  by  the  Constitution  of  the  United  States,  and 
that  they  ought  not  to  be  counted  as  such. 
Done  at  Washington  the  day  and  year  first  above  written. 

The  question  being  on  the  adoption  of  the  report  of  the  committee, 

It  was  decided  in  the  affirmative, 

YEAS 8 

NAYS 7 

Those  who  voted  in  the  affirmative  are:  Messrs.  Bradley,  Edmunds, 
Frelinghuysen,  Garfield,  Hoar,  Miller,  Morton,  and  Strong. 

Those  who  voted  in  the  negative  are:  Messrs.  Abbott,  Bayard,  Clif 
ford,  Field,  Huntou,  Payne,  and  Thurman. 
So  the  report  of  the  committee  was  adopted  ; 
And  the  decision  and  report  was  thereupon  signed  by  the  members 
agreeing  therein,  as  follows : 

SAM.  F.  MILLER, 

W.  STRONG, 

JOSEPH  P.  BRADLEY, 

GEO.  F.  EDMUNDS, 

O.  P.  MORTON, 

FRED'K  T.  FRELINGHUYSEN, 

JAMES  A.  GARFIELD, 

GEORGE  F.  HOAR, 

Commissioners. 
Mr.  Commissioner  EDMUNDS  offered  the  following  : 

Ordered.  That  the  President  transmit  a  letter  to  the  President  of  the  Senate  in 
the  following  words : 

WASHINGTON,  D.  C.,  February  9,  1877. 

Siu:  I  am  directed  by  the  Electoral  Commission  to  inform  the  Senate  that  it  has 
considered  and  decided  upon  the  matters  submitted  to  it,  under  the  act  of  Congress 
concerning  the  same,  touching  the  electoral  votes  from  the  State  of  Florida,  and 
herewith,  by  direction  of  said  Commission,  I  transmit  to  you  the  said  decision,  in 
writing,  signed  by  the  members  agreeing  therein,  to  be  read  at  the  meeting  of  the 
two  Houses,  according  to  said  act.  All  the  certificates  and  papers  sent  to  the  Com 
mission  by  the  President  of  the  Senate  are  herewith  returned. 

The  Hon.  THOMAS  W.  FEIIHY, 
President  of  the  Senate. 

And  that  he  deliver  to  him  therewith  th,p  written  decision  of  the  Commission  this 
day  made,  and  all  the  certificates,  papers,  and  objections  in  the  case  of  Florida. 

The  question  being  on  its  adoption, 

It  was  determined  in  the  affirmative  ; 

And  the  letter  was  accordingly  signed,  as  follows : 

NATHAN  CLIFFORD, 

President  of  the  Commission. 

Mr.  Commisssioner  EDMUNDS  offered  the  following  : 

Ordered,  That  the  president  of  the  Commission  transmit  to  the  Speaker  of  the 
House  of  Representatives  a  letter  in  the  following  words  : 

WASHINGTON,  D.  C.,  Febniary  9,  1877. 

SIR:  I  am  directed  by  the  Electoral  Commission  to  inform  the  House  of  Repre 
sentatives  that  it  has  considered  and  decided  upon  the  matters  submitted  to  it, 
under  the  act  of  Congress  concerning  the  same,  touching  the  electoral  votes  from 
the  State  of  Florida,  and  has  transmitted  said  decision  to  the  President  of  tho 
Senate,  to  be  read  at  tho  meeting  of  the  two  Houses,  according  to  said  act. 
Tho  Hon.  SAMUEL  J.  RANDALL, 

Speaker  of  the  ZTotwe  of  Representatives. 

The  question  being  on  its  adoption, 

It  was  determined  in  the  affirmative  ; 

And  the  letter  was  accordingly  signed  as  follows: 

NATHAN  CLIFFORD, 
President  of  the  Commission. 

On  motion  of  Mr.  Commissioner  ABBOTT, 

Ordered,  That  the  injunction  of  secrecy  imposed  on  tho  proceedings  had  to-day, 
as  entered  iu  the  Journal,  be  removed. 

On  motion  of  Mr.  Commissioner  BRADLEY, 

Ordered,  That  when  the  Commission  adjourn  it  be  until  three  o'clock  p.  m.  to 
morrow,  the  10th  instant. 

And  on  motion  of  Mr.  Commissioner  EDMUNDS,  (at  eight  o'clock 
and  five  minutes  p.  m.)  the  Commission  adjourned. 


WASHINGTON,  D.  C.,  February  10,  1877. 

The  Commission  met,  with  closed  doors,  (at  three  o'clock  p.  m.,) 
pursuant  to  adjournment. 

Present :  The  President,  Commissioners  Field,  Strong,  Bradley, 
Edmunds,  Morton,  Frelinghuyseu,  Garfield,  Hunton,  and  Hoar. 

Tho  Journal  of  yesterday  was  read  and  approved. 

On  motion  of  Mr.  Commissioner  HOAR, 

Ordered,  That  the  President  of  the  Commission  be  directed  to  inspect  tho  Jour 
nal  of  each  day's  proceedings. 

And  on  motion  of  Mr.  Commissioner  EDMUNDS,  (at  three  o'clock 
and  thirty  minutes,)  the  Commission  adjourned  to  meet  in  open  ses 
sion  at  half  past  two  o'clock  p.  in.,  Monday,  the  12th  instant. 


WASHINGTON,  D.  C.,  February  12,  1877. 

The  Commission  met  (at  two  o'clock  and  thirty  minutes  p.  rn._)  pur 
suant  to  adjournment. 

Present :  The  President  of  theCommission,  Commissioners  Bradley, 
Edmunds,  Field,  Garfield,  Morton,  Freliughuysen,  Bayard,  Hunton, 
Abbott,  Hoar,  Miller,  Payne,  and  Strong. 

On  motion  of  Mr.  Commissioner  HOAR,  (at  two  o'clock  and  fifty- 
eight  minutes)  the  Commission  took  a  recess  until  four  o'clock  p.  in. 


ELECTORAL  COMMISSION. 


277 


After  recess, 

The  Journal  of  Saturday  Avas  read  and  approved. 

A  communication  from  the  two  Houses  of  Congress,  in  joint  session, 
was  presented  by  Mr.  Gorham,  Secretary  of  the  Senate,  and  read  as 
follows  : 

HALL  OF  THE  HOUSE  OF  EEPUESEXTATIVES, 

February  12,  1877. 
To  the  President  of  the  Commission  : 

More  than  one  return  or  paper  purporting  to  bo  a  return  or  certificate  of  elect 
oral  vot«?s  of  tlio  State  of  Louisiana  having  been  received  and  this  day  opened  in 
the  presence  of  tho  two  Houses  of  CongreM,  and  read,  and  objections  thereto  hav 
ing  been  made,  the  said  returns,  with  alt  accompanying  papers,  and  also  the  objec 
tions  thereto,  are  herewith  submitted  to  tho  judgment  and  decision  of  the  Com- 
mission,  as  provided  by  law. 

T.  W.  FERRY, 
President  of  tlte  Senate. 

On  motion  of  Mr.  Commissioner  FIELD, 

Ordered,  That  tho  certificates,  with  accompanying  papers,  and  the  objections 
thereto,  in  tho  matter  of  the  elecroral  vote  of  the  State  of  Louisiana,  bo  printed. 

In  reply  to  an  interrogatory  of  the  President  as  to  who  would  ap 
pear  for  the  objectors  in  the  matter  now  pending  before  the  Commission, 

Mr.  Representative  Field  responded  that  Senator  McDonald  and 
Representative  Jenks  would  appear  on  behalf  of  the  objectors  to 
certificates  numbered  one  and  three. 

And  Mr.  Evarts  responded  that  Senator  Howe  and  Representative 
Hnrlburt  would  appear  on  behalf  of  the  objectors  to  certificate  number 
two. 

Mr.  Commissioner  MORTON  moved  that  the  Commission  adjourn 
until  ten  o'clock  a.  m.  to-morrow. 

And  Mr.  Commissioner  FIELD  moved  to  strike  out  "ten"  and  insert 
"eleven." 

The  question  being  on  the  latter  motion,  a  division  was  called  for. 

And  on  a  division  there  were  ayes  H,  noes  not  counted. 

So  the  motion  of  Mr.  Commissioner  FIELD  was  agreed  to ;  and  (at 
four  o'clock  and  forty-seven  minutes  p.  m.)  the  Commission  adjourned 
until  eleven  o'clock  a.  m.  to-morrow. 


WASHINGTON,  D.  C.,  February  13,  1877. 

The  Commission  met  at  eleven  o'clock  a.  m.,  pursuant  to  adjourn 
ment,  all  the  members  being  present. 

In  the  matter  of  tho  electoral  vote  of  the  State  of  Louisiana,  argu 
ment  on  behalf  of  the  objectors  to  Certificates  Nos.  1  and  3  was  pro 
ceeded  with  by  Senator  McDonald,  and  upon  his  concluding  (having 
occupied  more  than  one  hour,) 

On  motion  of  Mr.  Commissioner  ABBOTT,  Mr.  Representative  Jenks 
was  allowed  one  hour  for  argument.  On  concluding  same,  argument 
on  behalf  of  objectors  to  Certificate  No.  2  was  proceeded  with  by 
Representative  Hurlbut,  and  concluded  by  Senator  Howe. 

In  reply  to  an  interrogatory  of  the  President,  the  following  ap 
peared  as  counsel :  Messrs.  Carpenter,  Truinbull,  and  Campbell,  in  op 
position  to  Certificates  Nos.  1  and  3,  and  Messrs.  Evarts,  Stoughton, 
and  Shellabarger,  in  opposition  to  Certificate  No.  2. 

On  request  of  counsel,  by  Mr.  Campbell,  that  six  hours  be  allowed 
each  side  for  argument : 

Mr.  Commissioner  ABBOTT  moved  that  the  time  allowed  for  argu 
ment  be  extended  to  six  hours  on  each  side. 

Mr.  Commissioner  GARFIELD  moved  to  strike  out  "  six  "  and  in 
serting  "four  ;  "  and 

Mr.  Commissioner  EDMUNDS  moved  that  the  Commission  take  a 
recess  for  three-quarters  of  an  hour. 

The  question  being  on  the  latter  motion, 

It  was  decided  in  tho  affirmative, 

YEAS 11 

NAYS 4 

Those  who  voted  in  the  affirmative  are  :  Messrs.  Bayard,  Bradley 
Clifford,  Edmunds,  Frelinghuysen,  Garfield,  Hoar,  Miller,  Morton 
Strong,  and  Thurman. 

Those  who  voted  in  the  negative  are:  Messrs.  Abbott,  Field, 
Hunton,  and  Payne. 

So  the  motion  W!>,s  agreed  to ;  and  the  Commission  (at  three  o'clock 
and  forty-five  minutes  p.  m.)  took  a  recess  until  four  o'clock  and  thirty 
minutes. 

The  recess  having  expired, 

The  PRESIDENT  stated  the  Commission  had,  onconsultation,  de 
cided  to  allow  four  hours  and  a  half  to  each  side  for  argument,  and 
that  the  session  of  to-day  would  continue  until  nine  o'clock  p.  m.; 
and, 

On  motion  of  Mr.  Commissioner  STRONG,  the  recess  was  extended 
until  five  o'clock  p.  in. 

After  recess, 

The  argument  of  counsel  in  opposition  to  Certificates  Nos.  1  and  3 
was  proceeded  with  by  Mr.  Carpenter,  who  at  six  o'clock  and  twenty 
minutes,  without  concluding,  asked  to  be  excused  from  continuing 
same  until  to-morrow. 

The  PRESIDENT  submitted  the  question,  "Shall  the  proceedings 
be  suspended  ?" 

Pending  which, 

Mr.  Commissioner  ABBOTT  moved  that  the  Commission  adjourn 
until  ten  o'clock  a.  m.  to-morrow. 

Mr.  Commissioner  EDMUNDS  desired  tho  yeas  and  nays. 

The  question  being  on  tho  latter  motion, 


It  was  decided  in  the  affirmative, 

YEAS H 

NAYS 5 

Those  who  voted  in  the  affirmative  are  :  Messrs.  Abbott,  Bayard, 
Bradley,  Clifford,  Field,  Hunton,  Payne,  and  Thurman. 

Those  who  voted  in  the  negative  are :  Messrs.  Edmunds,  Freling- 
huyseu,  Hoar,  Miller,  and  Strong. 

So  the  motion  of  Mr.  Commissioner  ABBOTT  was  agreed  to  ;  and  (at 
six  o'clock  and  twenty-five  minutes  p.  in.)  the  Commission  adjourned. 


WASHINGTON,  D.  C.,  'February  14,  1877. 

The  Commission  met  at  ten  o'clock  a.  m.,  pursuant  to  adjournment, 
all  tho  members  being  present. 

Journal  of  yesterday  was  read  and  approved. 

And  (at  ten  o'clock  and  two  minutes)  in  the  matter  of  the  electoral 
vote  of  the  State  of  Louisiana,  Mr.  Carpenter,  of  counsel  in  opposi 
tion  to  Certificates  Nos.  1  and  3,  proceeded  with  his  argument  began 
on  yesterday. 

On  concluding  same, 

Mr.  Trumbull  presented  and  read  brief  of  evidence  proposed  to  be 
submitted  by  counsel  in  the  matter  pending. 

In  the  matter  of  allowing  further  time  for  discussion  on  tho  ques 
tion  of  admission  of  evidence, 

Mr.  Trumbull,  of  counsel,  stated  that  three  hours. further  time  was 
desired,  one  hour  for  each  counsel. 

Mr.  Commissioner  STRONG  moved  that  counsel  be  allowed  two 
hours  on  each  side  for  argument  on  the  question  of  the  admissibility 
of  evidence  offered. 

Mr.  Commissioner  EDMUNDS  moved  the  following  as  a  substitute : 

Ordered,  That  counsel  now  bo  heard  on  the  whole  subject  as  the  case  now  stands, 
and  that  four  hours  on  a  side  bo  allowed. 

After  remarks, 

Mr.  Commissioner  THURMAN  moved  to  strike  out  the  word  "  two," 
in  the  motion  of  Mr.  Commissioner  STRONG,  and  insert  "  three." 

The  question  being  on  the  latter  motiou, 

The  yeas  and  nays  were  ordered. 

It  was  decided  in  the  negative, 

YEAS 7 

NAYS 8 

Those  who  voted  in  the  affirmative  are :  Messrs.  Abbott,  Bayard, 
Clifford,  Field,  Huutou,  Payne,  and  Thurman. 

Those  who  voted  in  the  negative  are :  Messrs.  Bradley,  Edmunds, 
Frelinghuysen,  Garfield,  Hoar,  Miller,  Morton,  and  Strong. 

So  the  motion  was  not  agreed  to. 

The  question  being  on  the  substitute  offered  by  Mr.  Commissioner 
EDMUNDS, 

The  yeas  and  nays  were  ordered. 

It  was  decided  in  the  negative, 

YEAS 4 

NAYS 11 

Those  who  voted  in  the  affirmative  are :  Messrs.  Edmunds,  Freliug- 
liuysen,  Hoar,  and  Miller. 

Those  who  voted  in  the  negative  are :  Messrs.  Abbott,  Bayard,  Brad 
ley,  Clifford,  Field,  Garfield,  Hunton,  Morton,  Payne,  Strong,  and 
Thurman. 

So  the  substitute  was  not  agreed  to. 

And  the  question  recurring  on  the  motion  of  Mr.  Commissioner 
STRONG, 

It  was  determined  in  the  affirmative. 

On  motion  of  Mr.  Commissioner  BRADLEY, 

Ordered,  That  time  consumed  bv  counsel  on  question  of  admission  of  evidence 
beyond  the  two  hours  allowed  be  deducted  from  that  allowed  on  final  argument. 

On  motion  of  Mr.  Commissioner  EDMUNDS, 

Ordered,  That  counsel  proceed  with  argument  in  the  same  manner  as  in  the  case 
of  tho  State  of  Florida,  counsel  offering  evidence  to  open  and  close  argument. 

And,  on  motion  of  Mr.  Commissioner  EDMUNDS,  (attwelve  o'clock 
and  thirty-two  minutes)  the  Commission  took  a  recess  for  half  an 
hour. 

After  recess, 

On  the  question  of  admission  of  evidence,  (at  one  o'clock  and  five 
minutes)  Mr.  Trumbull,  of  counsel  in  opposition  to  Certificates  Nos. 
1  and  3,  proceeded  with  the  argument. 

And  at  three  o'clock  and  ten  minutes, 

Mr.  Stoughton,  of  counsel  in  opposition  to  Certificate  No.  2,  pro 
ceeded  with  the  argument ;  which  was  continued  by  Mr.  Shellabarger 
until  six  o'clock  and  forty-five  minutes. 

Mr.  Commissioner  ABBOTT  moved  that  the  Commission  adjourn 
until  ten  o'clock  a.  m.  to-morrow. 

Mr.  Commissioner  THURMAN  moved,  as  a  substitute,  to  strike  out 
'•ton  o'clock"  and  insert  "ten  o'clock  and  thirty  minutes." 

The  question  being  on  the  adoption  of  the  substitute, 

It  was  determined  in  the  negative. 

And  the  question  recurring  on  tho  motion  of  Mr.  Commissioner 
ABBOTT, 

The  yeas  and  nays  being  ordered, 

It  was  decided  in  the  negative, 

The  vote  being  a  tic  ;  as  follows : 


278 


ELECTORAL  COMMISSION. 


YEAS 7 

NAYS 7 

Those  who  voted  in  the  affirmative  are :  Messrs.  Abbott,  Bradley, 
Clifford,  Garfield,  Hunton,  Payne,  and  Strong. 

Those  who  voted  in  thenegative  are :  Messrs.  Edmunds,  Field,  Fre- 
linghuysen,  Hoar,  Miller,  Morton,  andTlmrman. 

Mr.  Commissioner  THURMAN  moved  that  the  Commission  adjourn 
until  ten  o'clock  and  fifteen  minutes  a  m.  to-inorrow. 

The  question  being  on  its  adoption, 

It  was  determined  in  the  affirmative, 

YEAS 8 

NAYS 7 

Those  who  voted  in  the  affirmative  are :  Messrs.  Abbott,  Bayard, 
Bradley,  Clifford,  Field,  Hunton,  Payne,  and  Thurman. 

Those  who  voted  in  the  negative  are :  Messrs.  Edmunds,  Freliug- 
huysen,  Garfield,  Hoar,  Miller,  Morton,  and  Strong. 

So  the  motion  was  agreed  to. 

And  (at  six  o'clock  and  fifty-two  minutes  p.  m.)  the  Commission  ad 
journed  until  a  quarter  past  ten  a.  m.  to-morrow. 

WASHINGTON,  D.  C.,  February  15,  1877. 

The  Commission  met  at  ten  o'clock  and  fifteen  minutes  a.  m.,  pur 
suant  to  adjournment,  all  the  members  being  present. 

Journal  of  yesterday  was  read  and  approved. 

And,  (at  ten  o'clock  and  twenty  minutes,)  on  the  question  of  the  ad 
mission  of  evidence  in  the  matter  of  the  electoral  vote  of  the  State  of 
Louisiana, 

Mr.  Evarts,  of  counsel ,  proceeded  to  continue  the  argument  in  op 
position  to  Certificate  No.  2,  and  concluded  same  at  one  o'clock  and 
fifteen  minutes. 

And,  on  motion  of  Mr.  Commissioner  THURMAN,  (at  one  o'clock  and 
twelve  minutes,)  the  Commission  took  a  recess  until  one  o'clock  and 
forty-five  minutes. 

After  recess, 

The  PRESIDENT  laid  before  the  Commission  the  following  resolu 
tion  of  the  Senate : 

IN  THE  SENATE  OF  THE  UNITED  STATES, 

February  15,  1877. 

Resolved,  That  the  Electoral  Commission  have  leive  to  occupy  the  Senate  Cham 
ber,  for  its  sittings  in  the  evening,  after  the  Senate  shall  have  taken  a,  recess  for 
the  day. 

Attest : 

GEO.  C.  GORHAM,  Secretary. 

It  was  ordered  that  the  resolution  lie  on  the  table  for  the  present. 

And,  (atoneo'clock  and  fifty  minutes,)  Mr.  Campbell,  of  counsel,  pro 
ceeded  to  continue  the  argument  in  opposition  to  Certificates  Nos.  1 
and  3,  and  concluded  same  at  four  o'clock  and  twenty-one  minutes. 

On  motion  of  Mr.  Commissioner  EDMUNDS,  at  four  o'clock  and 
thirty  minutes, 

Ordered,  That  the  public  session  of  the  Commission  for  to-day  is  now  adjourned. 

After  doors  were  closed, 

Mr.  Commissioner  EDMUNDS  moved  that  the  Commission  take  a 
recess  for  fifteen  minutes. 

The  question  on  being  submitted  was  decided  in  the  affirmative. 

And,  on  motion  of  Mr.  Commissioner  STRONG,  the  vote  on  the 
motion  was  reconsidered. 

Mr.  Commissioner  EDMUNDS  moved  that  the  Commission  take  a 
recess  for  one  hour. 

And  after  debate, 

The  motion  was  withdrawn. 

Mr.  Commissioner  FIELD  moved  that  the  Commission  adjourn 
until  to-morrow. 

The  question  being  on  its  adoption, 

The  yeas  and  nays  were  ordered. 

It  was  decided  in  the  negative, 

YEAS 7 

NAYS '.'.'.'.'.'.'.".     8 

Those  who  voted  in  the  affirmative  are  :  Messrs.  Abbott,  Bayard, 
Bradley,  Field,  Hunton,  Payne,  and  Thurman. 

Those  who  voted  in  the  negative  arc :  Messrs.  Clifford,  Edmunds, 
Frelinghuysen,  Garfield,  Hoar,  Miller,  Morton,  and  Strong. 

So  the  motion  was  not  agreed  to. 

Mr.  Commissioner  HOAR  moved  that  the  vote  on  the  question  of  the 
admission  of  testimony  in  the  matter  pending  be  taken  at  four  o'clock 
p.  m.  to-morrow. 

And  after  debate, 

The  motion  was  withdrawn. 

Mr.  Commissioner  GARFIELD  moved  that  the  Commission  take  a 
recess  until  six  o'clock  and  thirty  minutes. 

Mr.  Commissioner  HUNTON  moved,  as  a  substitute,  that  the  Com 
mission  take  a  recess  until  seven  o'clock. 

Pending  which, 

Mr.  Commissioner  HUNTON  moved  that  when  the  Commission  ad 
journ  it  be  until  ten  o'clock  a.  m.  to-morrow  ;  and  that  the  vote  on 
the  question  of  the  admission  of  testimony,  in  the  matter  pendin«- 
be  taken  to-morrow  at  four  o'clock  p.  m. 

After  remarks, 

The  question  being  on  (lie  adoption  of  the  motion  of  Mr.  Commis 
sioner  HUNTON, 


It  was  decided  in  the  affirmative. 

On  motion  of  Mr.  Commissioner  HOAR, 

Ordered,  That  the  Secretary  notify  counsel  to  be  present  at  four  o'clock  and  fif 
teen  minutes  p.  m.  to-morrow  to  proceed  under  the  direction  of  the  Commission. 

Mr.  Commissioner  HUNTON  moved  that  a  stenographer  be  allowed 
to  attend  the  secret  sessions  of  the  Commission. 

The  question  being  on  its  adoption, 

The  yeas  and  nays  were  ordered. 

It  was  determined  in  the  negative, 

YEAS 5 

NAYS o 

Those  who  voted  in  the  affirmative  are  :  Messrs.  Abbott,  Bayard, 
Field,  Hunton,  and  Payne. 

Those  who  voted  in' the  negative  are:  Messrs.  Bradley,  Clifford, 
Edmunds,  Frelinghuysen,  Garfield,  Hoar,  Miller,  Strong,  and  Thur 
man. 

So  the  motion  was  not  agreed  to. 

And,  on  motion  of  Mr.  Commissioner  PAYNE,  (at  five  o'clock  and 
twenty-two  minutes  p.  m.,)  the  Commission  adjourned. 

WASHINGTON,  D.  C.,  February  16,  1877. 

The  Commission  met,  with  closed  doors,  at  ten  o'clock  a.  m.,  pur 
suant  to  adjournment,  all  the  members  being  present. 

Journal  of  yesterday  was  read  and  approved. 

And  the  Commission  proceeded  in  its  deliberation  on  the  question 
of  the  admission  of  testimony  in  the  matter  of  the  electoral  vote  of 
the  State  of  Louisiana. 

After  debate, 

The  time  allowed  for  debate  having  expired, 

Mr.  Commissioner  HOAR,  offered  the  following : 

Ordered,  That  the  evidence  offered  be  not  received. 

Mr.  Commissioner  ABBOTT  offered  the  following  as  a  substitute 
for  the  proposed  order : 

Resolved,  That  evidence  will  be  received  to  show  that  so  much  of  the  act  of  Lou 
isiana  establishing  a  returning  board  for  that  State  is  unconstitutional  and  the 
acts  of  said  returning  board  are  void. 

The  question  being  on  the  adoption  of  the  substitute, 

It  was  decided  in  the  negative, 

YEAS 7 

NAYS 1 8 

Those  who  voted  in  the  affirmative  are:  Messrs.  Abbott,  Bayard, 
Clifford,  Field,  Hunton,  Payne,  and  Thurman. 

Those  who  voted  in  the  negative  are  :  Messrs.  Bradley,  Edmunds, 
Frelinghuyseu,  Gartield,  Hoar,  Miller,  Morton,  and  Strong. 

Also  the  following  as  a  substitute : 

Resolved,  That  evidence  will  be  received  to  show  that  the  returning  board  of 
Louisiana  at  the  time  of  canvassing  and  compiling  the  vote  of  that  State  at  the  last 
election  in  that  State  was  not  legally  constituted  under  the  law  establishing  it,  in 
this,  that  it  was  composed  of  four  persons  all  of  one  political  party,  instead  of  five 
persons  of  different  political  parties,  as  required  by  the  law  establishing  said 
board. 

The  question  being  on  the  adoption  of  the  substitute, 

It  was  decided  in  the  negative,        , 

YEAS 7 

NAYS 8 

Those  who  voted  in  the  affirmative  are :  Messrs.  Abbott,  Bayard, 
Clifford,  Field,  Huntou,  Payne,  and  Thurman. 

Those  who  voted  in  the  negative  are  :  Messrs.  Bradley,  Edmunds, 
Frelinghuysen,  Garfield,  Hoar,  Miller,  Morton,  and  Strong. 

Also,  the  following  as  a  substitute  : 

Resolved,  That  the  Commission  will  receive  testimony  on  the  subject  of  tho 
frauds  alleged  in  tho  specifications  of  tho  counsel  for  the  objectors  to 'Certificates 
numbered  i  and  3. 

The  question  being  on  the  adoption  of  the  substitute, 

It  was  decided  in  the  negative, 

YEAS 7 

NAYS 8 

Those  who  voted  in  the  affirmative  are :  Messrs.  Abbott,  Bayard, 
Clifford,  Field,  Hunton,  Payne,  and  Thnrman. 

Those  who  voted  in  the  negative  are :  Messrs.  Bradley,  Edmunds, 
Frelinghuysen,  Garfield,  Hoar,  Miller,  Morton,  and  Strong. 

Also,  the  following  as  a  substitute  : 

Resolved,  That  testimony  tending  to  show  that  the  so-called  returning  board  of 
Louisiana  had  no  jurisdiction  to  canvass  the  votes  for  electors  of  President  and 
Vice-President  is  admissible. 

The  question  being  on  the  adoption  of  the  substitute, 

It  was  decided  in  the  negative, 

YEAS 7 

NAYS 8 

Those  who  voted  in  the  affirmative  are :  Messrs.  Abbott,  Bayard, 
Clifford,  Field,  Hunton,  Payne,  and  Thnrmau. 

Those  who  voted  in  the  negative  are:  Messrs.  Bradley,  Edmunds, 
Frelinghnysen,  Garfield,  Hoar,  Miller,  Morton,  and  Strong. 

Also,  the  following  as  a  substitute : 

Resolved,  That  evidence  is  admissible  that  tho  statements  and  affidavits  purport 
ing  to  have  been  made  and  forwarded  to  said  returning  board  in  pursuance  of  tho 
provisions  of  section  26  of  the  election  law  of  1872,  alleging  riot,  tumult,  intimida 
tion,  and  violence,  at  or  near  certain  polls  and  in  certain  parishes,  were  falsely  fab 
ricated  and  forged  by  cortaiu  disreputable  persons  under  the  direction  and  with 


ELECTORAL  COMMISSION. 


279 


the  knowledge  of  said  returning  board,  and  that  said  returning  board,  knowing 
said  statements  and  affidavits  to  be  false  and  forged  and  that  none  of  said  state 
ments  or  affidavits  were  made  in  the  manner  or  form  or  within  the  time  required 
by  law,  did  knowingly,  willfully,  and  fraudulently  fail  and  refuse  to  canvass  or 
compile  more  than  10,000  votes  "lawfully  cast,  as  is  shown  by  the  statements  of 
votes  of  the  commissioners  of  election. 

The  question  being  ou  the  adoption  of  the  substitute, 

It  was  decided  in  the  negative, 

YEAS 7 

NAYS 8 

Those  who  voted  in  the  affirmative  are :  Messrs.  Abbott,  Bayard, 
Clifford,  Field,  Huuton,  Payne,  and  Thurinan. 

Those  who  voted  in  the  negative  are:  Messrs.  Bradley,  Edmunds, 
Frelinsrhuysen,  Garfield,  Hoar,  Miller,  Morton,  and  Strong. 

Mr.  Commissioner  HUNTON  offered  the  following  as  a  substitute: 

Resolved,  That  evidence  be  received  to  prove  that  the  votes  cast  and  given  at  said 
election  on  the  7th  of  November  last,  for  the  election  of  electors,  as  shown  by  the  re 
turn  made  by  the  commissioners  of  election,  from  the  several  polls  or  voting-places 
in  said  State,  have  never  been  compiled  nor  canvassed  ;  and  that  the  said  returning 
board  never  oven  pretended  to  compile  or  canvass  the  returns  by  said  commis 
sioners  of  election,  but  that  said  returning  board  only  pretended  to  canvass  the 
returns  made  by  the  said  supervisors. 

The  question  being  on  the  adoption  of  the  substitute, 

It  was  decided  in  the  negative, 

YEAS 7 

NAYS 8 

Those  who  voted  in  the  affirmative  are :  Messrs.  Abbott,  Bayard, 
Clifford,  Field,  Huuton,  Payne,  and  Thurinan. 

Those  who  voted  in  the  negative  are :  Messrs  Bradley,  Edmunds, 
Frelinghuysen,  Garfield,  Hoar,  Miller,  Morton,  and  Strong. 

Mr.  Commissioner  BAYARD  offered  the  following  as  a  substitute  : 

Resolved,  That  no  person  holding  an  office  of  trust  or  profit  under  the  United 
States  is  eligible  to  be  appointed  an  elector,  and  that  this  Commission  will  receive 
evidence  tending  to  prove  such  ineligibility,  as  offered  by  counsel  for  objectors  to 
Certificates  1  and  3. 

The  question  being  on  the  adoption  of  the  substitute, 

It  was  decided  in  the  negative, 

YEAS 7 

NAYS 8 

Those  who  voted  in  the  affirmative  are :  Messrs.  Abbott,  Bayard, 
Clifford,  Field,  Hunton,  Payne,  and  Thurman. 

Those  who  voted  in  the  negative  are:  Messrs.  Bradley,  Edmunds, 
Freliughuyseu,  Garfield,  Hoar,  Miller,  Morton,  and  Strong. 

Mr.  Commissioner  FIELD  offered  the  following  as  a  substitute  : 

Resolved,  That  in  the  opinion  of  the  Commission  evidence  is  admissible  upon  the 
several  matters  which  counsel  for  the  objectors  to  certificates  numbered  1  and  3 
offered  to  prove. 

The  question  being  ou  the  adoption  of  the  substitute, 
It  was  decided  in  the  negative, 

YEAS 7 

NAYS 8 

Those  who  voted  in  the  affirmative  are :  Messrs.  Abbott,  Bayard, 
Clifford,  Field,  Hunton,  Payne,  and  Thurman. 

Those  who  voted  in  the  negative  are:  Messrs.  Bradley,  Edmunds, 
Freliughuysen,  Gartield,  Hoar,  Miller,  Morton,  and  Strong. 

Mr.  Commissioner  PAYNE  moved  to  strike  out  the  word  "  not " 
in  the  original  resolution. 

The  question  being  on  its  adoption, 

It  was  decided  in  the  negative, 

YEAS 7 

NAYS 8 

Those  who  voted  in  the  affirmative  are  :  Messrs.  Abbott,  Bayard, 
Clifford,  Field,  Hunton,  Payne,  and  Thurman. 

Those  who  voted  in  the  negative  are :  Messrs.  Bradley,  Edmunds, 
rrelinghuysen,  Garfield,  Hoar,  Miller,  Morton,  and  Strong. 

The  question  recurring  on  the  adoption  of  the  order,  as  offered  by 
Mr.  Commissioner  HOAR, 

It  was  determined  in  the  affirmative, 

YEAS 8 

NAYS 7 

Those  who  voted  in  the  affirmative  are  :  Messrs.  Bradley,  Edmunds, 
Frelinghuyseu,  Garfield,  Hoar,  Miller,  Morton,  and  Strong. 

Those  who  voted  in  the  negative  are:  Messrs.  Abbott,  Bayard, 
Clifford,  Field,  Hunton,  Payne,  and  Thurman. 

So  the  motion  was  agreed  to. 

Ou  motion  of  Mr.  Commissioner  PAYNE, 

Ordered,  That  the  injunction  of  secrecy  imposed  on  the  acts  of  the  Commission 
to-day  be  removed. 

And,  on  motion  of  Mr.  Commissioner  HOAR,  (at  five  o'clock  and  five 
minutes,)  the  doors  were  opened. 

On  motion  of  Mr.  Commissioner  MORTON, 

Ordered,  That  all  orders  and  substitutes  acted  on  by  the  Commission  in  delibera 
tion  to-day  bo  read. 

On  motion  of  Mr.  Commissioner  FIELD, 

Ordered,  That  the  injunction  of  secrecy  be  removed  from  the  proceedings  of  the 
Commission. 

Mr.  Commissioner  PAYNE  moved  that  counsel  be  allowed  one  hour 
on  each  side  for  argument  on  the  whole  case  now  pending. 


And  after  remarks,  during  which  counsel,  by  Mr.  Evarts  and  Mr. 
Campbell,  stated  that  further  time  for  argument  was  not  desired, 

The  motion  of  Mr.  Commissioner  PAYNE  was  withdrawn. 

Mr.  Commissioner  MORTON  moved  that  a  committee  of  three  be 
appointed  to  prepare  the  report  of  the  Commission  in  the  matter 
pending,  and  that  the  Commission  take  a  recess  for  one  hour. 

After  remarks, 

The  motion  was  withdrawn.- 

And  on  motion  of  Mr.  Commissioner  HOAR,  (at  five  o'clock  and 
twenty-seven  minutes,)  the  doors  were  closed, and  the  Commission  re 
sumed  its  session  for  deliberation. 

Mr.  Commissioner  MORTON  offered  the  following: 

Resolved,  That  the  persons  named  as  electors  in  Certificate  No.  1  were  tba 
lawful  electors  of  tte  State  of  Louisiana,  and  that  their  votes  are  the  votes  provided 
by  the  Constitution  of  the  United  States,  and  should  be  counted  for  President  and 
Vice-Presideut. 

Mr.  Commissioner  THURMAN  offered  the  following  as  a  substitute: 
To  strike  out  all  after  the  word  "Resolved,"  and  insert : 

That  inasmuch  as  the  votes  of  the  people  of  Louisiana  for  electors  of  President 
and  Vice-President,  in  November  last,  have  never  been  legally  canvassed  and  de 
clared,  therefore  the  votes  purporting  to  be  votes  of  electors  of  that  State  for  Presi 
dent  and  yice-President  ought  not  to  bo  counted,  and  no  electors  of  President  and 
Vice-President  can  be  regarded  as  chosen  in  that  SUte. 

The  question  being  on  the  adoption  of  the  substitute, 

It  was  decided  in  the  negative, 

YEAS 7 

NAYS "  8 

Those  who  voted  in  the  affirmative  are :  Messrs.  Abbott,  Bayard, 
Clifford,  Field,  Hunton,  Payne,  and  Thurman. 

Those  who  voted  in  the  negative  are  :  Messrs.  Bradley,  Edmunds, 
Freliughuysen,  Garfield,  Hoar,  Miller,  Morton,  and  Strong. 

Mr.  Commissioner  HUNTON  moved  the  following :  To  strike  out  all 
after  the  word  "  Resolved,"  and  insert : 

That  the  votes  purporting  to  be  the  electoral  votes  of  the  State  of  Louisiana  be 
not  counted. 

The  question  being  on  its  adoption, 
It  was  decided  in  the  negative, 
YEAS 7 

NAYS  ..  8 


Those  who  voted  in  the  affirmative  are :  Messrs,  Abbott,  Bayard, 
Clifford,  Field,  Hunton,  Payne,  and  Thurman. 

Those  who  voted  in  the  negative  are :  Messrs.  Bradley,  Edmunds, 
Freliughuysen,  Garfield,  Hoar,  Miller,  Morton,  and  Strong. 

And  the  question  recurring  on  the  adoption  of  the  resolution  of  Mr. 
Commissioner  MORTON, 

It  was  decided  in  the  affirmative, 

YEAS 8 

NAYS 7 

Those  who  voted  in  the  affirmative  are  :  Messrs.  Bradley,  Edmunds, 
Frelinghuysen,  Garfield,  Hoar,  Miller,  Morton,  and  Strong. 

Those  who  voted  in  the  negative  are  :  Messrs.  Abbott,  Bayard,  Clif 
ford,  Field,  Huntou,  Payne,  and  Thurman. 

Mr.  Commissioner  MILLER  moved,  that  Commissioners  STRONG, 
FRPLINGHUYSEX,  and  BRADLEY  be  a  committee  to  draft  a  report,  as 
required  by  law,  of  the  action  of  the  Commission  in  the  matter  pend 
ing. 

Mr.  Commissioner  GARFIELD  moved  that  said  committee  consist 
of  Commissioners  EDMUNDS,  BRADLEY,  and  MILLER,  the  committee 
appointed  to  prepare  the  report  of  the  Commission  in  the  case  of  the 
State  of  Florida. 

On  motion, 

Mr.  Commissioner  EDMUNDS  was  excused  from  serving  on  said  com 
mittee  on  account  of  ill-health. 

And,  on  motion  of  Mr.  Commissioner  FRELINGHUYSEN, 

Commissioners  MILLER,  HOAR,  and  BRADLEY  were  appointed  aa 
said  committee. 

And,  on  motion  of  Mr.  Commissioner  MILLER,  (at  six  o'clock  and 
five  minutes,)  the  Commission  took  a  recess  until  seven  o'clock  p.  m. 

The  recess  having  expired, 

On  motion  of  Mr.  Commissioner  HOAR,  the  Commission  took  a  fur 
ther  recess  until  seven  o'clock  and  fifteen  minutes; 

After  recess, 

Mr.  Commissioner  MILLER,  on  behalf  of  committee  to  prepare  a 
report  of  the  action  of  the  Commission  in  the  matter  of  the  electoral 
vote  of  the  State  of  Louisiana,  offered  the  following  : 

Ordered,  That  the  following  be  adopted  and  signed  by  those  members  of  the  Com 
mission  agreeing  therein,  as  the  decision  of  the  Commission  on  the  matters  sub 
mitted  to  it  touching  the  electoral  votes  of  the  State  of  Louisiana  and  the  brief 
grounds  of  said  decision,  and  be  transmitted  by  the  President  of  the  Commission, 
with  all  the  accompanying  papers,  to  the  President  of  the  Senate,  to  be  laid  before 
the  two  Houses  of  Congress  at  the  meeting  provided  for  in  said  act. 

ELECTOKAI,  COMMISSION, 
Washington,  T>.  C.,  February  10,  A.  1).  1877. 

To  the  President  of  the  Senate  of  the  United  States,  presiding  in  the  meeting  of 
the  two  Houses  of  Congress  under  the  act  of  Congress  entitled  "An  act  to  pro 
vide  for  and  regulate  the  counting  of  votes  for  President  and  Vice-Presideut, 
and  the  decision  of  questions  arising  thereon,  for  the  term  commencing  March  4, 
A.  D.  1877,"  approved  January  29,  A.  D.  1877. 

The  Electoral  Commission  mentioned  in  said  act  having  received  certain  certifi 
cates  and  papers  purporting  to  be  certificates,  and  papers  accompanying  the  same, 
of  the  electoral  votes  from  the  State  of  Louisiana,  and  the  objections  thereto  submit- 


280 


ELECTORAL  COMMISSION. 


tod  to  it  under  said  act,  now  report,  that  it  has  duly  considered  the-  same  pursuant 
to  said  act.  and  has  by  a  majority  of  votes  decided,  and  does  hereby  decide,  that  the 


certified  ly  said  persons  as  appears  by  the  certificates  submitted  to  the  Commission 
as  aforesaid,  and  marked  Nos.  one  (i)  and  three  (3)  by  said  Commission  and  here 
with  returned,  are  the  votes  provided  for  by  the  Constitution  of  the  United  States, 
and  that  the  same  are  lawfully  to  he  counted  as  therein  certified,  namely  :  Eight 
(8)  votes  for  Rutherford  B.  Ilayes,  of  the  State  of  Ohio,  for  President,  and  eight 
(8)  votes  for  William  A.  Wheeler,  of  the  State  of  New  York,  for  Vice-President. 

The  Commission  has  by  a  majority  of  votes  also  decided,  and  does  hereby  decide 
and  report,  that  the  eight  persons  first  before  named  were  duly  appointed  electors 
in  and  by  the  said  State  of  Louisiana. 

The  brief  ground  of  this  decision  is  that  it  appears  upon  such  evidence  ns  by  the 
Constitution  and  the  law  named  in  said  act  of  Congress  is  competent  and  pertinent 
to  the  consideration  of  the  subject,  that  the  before-mentioned  electors  appear  to 
have  been  lawfully  appointed  such  electors  of  President  and  Vicc-President  of  the 
United  States  for  the  term  beginning  March  4,  A.  D.  1877,  of  the  State  of  Loui 
siana,  and  that  they  voted  as  sueh»at  the  time  and  in  the  manner  provided  for  by 
the  Constitution  of 'the  United  States  and  the  law;  and  the  Commission  has  hv  a 
majority  of  votes  decided,  and  does  hereby  decide,  that  it  is  not  competent  under 
the  Constitution  ami  the  law  as  it  existed  at  the  date  of  the  passage  of  said  act  to 
go  into  evidence  aliunde  the  papers  opened  by  the  President  of  the  Senate  in  the 
presence  of  the  two  Houses  to  prove  that  other  persons  than  those  regularly  certi 
fied  to  by  the  governor  of  the  State  of  Louisiana  on  and  according  to  the  deter 
mination  and  declaration  of  their  appointment  by  the  returning  officers  for  elec 
tions  in  the  said  State  prior  to  the  time  required  for  the  performance  of  their  du 
ties,  had  boon  appointed  electors,  or  by  counter-proof  to  show  that  they  had  not, 
or  that  the  determination  of  the  said  returning  officers  was  not  in  accordance  with 
the  truth  and  the  fact. 

The  Commission  by  a  majority  of  votes  being  of  opinion  that  it  is  not  within  the 
jurisdiction  of  the  two  Houses  of  Congress  assembled  to  count  the  votes  for  Presi 
dent  and  Vice-President  to  enter  upon  a  trial  of  such  question.  The  Commission 
by  a  majority  of  votes  is  also  of  opinion  that  it  is  not  competent  to  prove  that  any 
of  said  persons  so  appointed  electors,  as  aforesaid,  hold  an  office  of  trust  or  profit 
under  the  United  States  at  the  time  when  they  were  appointed  or  that  they  were 
ineligible  under  the  laws  of  the  State  or  any  other  matter  offered  to  bo  proved  ali 
unde  the  said  certificates  and  papers. 

The  Commission  is  also  of  opinion  by  a  majority  of  votes  that  the  returning  offi 
cers  of  election  who  canvassed  the  votes  at  the  election  for  electors  in  Louisianai 
were  a  legally  constituted  body,  by  virtue  of  a  constitutional  law,  and  that  a  va 
cancy  in  said  body  did  not.vitiate  its  proceedings. 

The  Commission  has  also  decided,  and  does  hereby  decide,  by  a  majority  of  votes, 
and  report,  that  as  a  consequence  of  the  foregoing,  and  upon  the  grounds  before 
stated,  that  the  paper  purporting  to  be  a  certificate  of  the  electoral  vote  of  said 
State  of  Louisiana,  objected  to  by  T.  0.  tlowe  and  others,  marked  N.  C.  No.  2  by 
the  Commission,  ami  herewith  returned,  is  not  the  certificate  of  the  votes  provided 
for  by  the  Constitution  of  the  United  States,  and  that  they  ought  not  to  be  counted 
as  such. 

Done  at  Washington  the  day  and  year  first  above  written. 

The  question  being  on  the  adoption  of  the  report  of  the  commit 
tee, 
It  was  decided  in  the  affirmative, 

YEAS .-      8 

NAYS 7 

Those  who  voted  in  the  affirmative  are :  Messrs.  Bradley,  Edmunds, 
Freliughuysen,  Garfield,  Hoar,  Miller,  Morton,  and  Strong. 

Those  who  voted  in  the  negative  are :  Messrs.  Abbott,  Bayard,  Clif 
ford,  Field,  Hunton,  Payne,  and  Thurmau. 
So  the  report  of  the  committee  was  adopted  ; 

And  the  decision  and  report  was  thereupon  signed  by  the  members 
agreeing  therein,  as  follows  : 

SAM.  F.  MILLEK. 

W.  STRONG. 

JOSEPH  P.  BRADLEY. 

GEO.  F. -EDMUNDS. 

O.  P.  MORTON. 

FRED'K  T.  FRELINGHUYSEN. 

JAMES  A.  GARFIELD. 

GEORGE  F.  HOAR. 

On  motion  Mr.  Commissioner  GARFIELD, 

Ordered,  That  when  the  Commission  adjourn  it  be  until  to-morrow  at  four  o'clock 
p.  m. 

Mr.  Commissioner  MILLER  offered  the  following : 

Ordered,  That  the  President  of  the  Commission  sign  and  transmit  to  the  Presi 
dent  of  the  Senate  the  following  letter,  to  wit : 

WASHINGTON,  D.  C.,  February  16,  A.  D.  1877. 

STB  :  I  am  directed  by  the  Electoral  Commission  to  inform  the  Senate  that  it 
has  considered  and  decided  upon  the  matters  submitted  to  it,  under  the  act  of  Con 
gress  concerning  the  same,  touching  the  electoral  votes  from  the  State  of  Louisiana, 
and  herewith,  by  direction  of  said  Commission,  I  transmit  to  you  the  said  decision 
in  writing,  signed  by  the  members  agreeing  therein,  to  be  read  at  the  meeting  of 
the  two  Houses  according  to  s-iid  act.  All  the  certificates  and  papers  sent  to  the 
Commission  by  the  President  of  the- Senate  are  herewith  returned. 

Hon.  THOMAS  W.  FERRY, 

President  of  the  Senate. 

The  question  being  on  its  adoption, 

It  was  determined  in  the  affirmative ; 

And  the  letter  was  accordingly  signed,  as  follows : 

NATHAN  CLIFFORD, 

President  of  the  Commission. 
Mr.  Commissioner  MILLER  moved  the  following: 

Ordered,  That  the  President  of  the  Commission  sign  and  transmit  to  the  Speaker 
of  the  House  of  Representatives  the  following  letter : 

WASHINGTON,   February  16,  A.  D.  1877. 

SIR:  I  am  directed  by  the  Electoral  Commission,  to  inform  the  House  of  Repre 
sentatives  that  it  has  considered  and  decided  upon  the  matters  submitted  to  it 
under  the  act  of  Congress  concerning  the  same,  touching  the  electoral  votes  from 
the  State  of  Louisiana,  and  has  transmitted  said  decision  to  the  President  of  the 
Senate,  to  be  read  at  the  meeting  of  the  two  Houses,  according  to  said  act 
Hon.  SAMUEL  J.  RANDALL, 

Speaker  of  the  House  of  Representatives. 


The  question  being  on  its  adoption, 

It  was  decided  in  the  affirmative  ; 

And  the  letter  was  accordingly  signed,  as  follows : 

NATHAN"  CLIFFORD, 
President  of  the  Commission. 

On  motion  of  Mr.  Commissioner  ABBOTT, 

Ordered,  That  the  injunction  of  secrecy  imposed  on  all  former  consultations  of 
the  Commission  be  removed. 

And  (at  eight  o'clock  and  fifty-seven  minutes  p.  m.)  the  Commis 
sion  adjourned. 

WASHINGTON,  D.  C.,  February  17,  1877. 

The  Commission  met  with  closed  doors  at  four  o'clock  p.  m.,  pur 
suant  to  adjournment. 

And  there  being  no  business, 

On  motion  of  Mr.  Commissioner  STRONG,  the  Commission  adjourned 
until  Monday  at  four  o'clock  p.  m. 

WASHINGTON,  D.  C.  February  19,  1877. 

The  Commission  met  with  closed  doors  at  four  o'clock  p.  m.,  pur 
suant  to  adjournment. 

There  being  no  business, 

On  motion  of  Mr.  Commissioner  STRONG,  the  reading  of  the  minutes 
was  suspended,  and  the  Commission  adjourned  until  to-morrow  at 
four  o'clock  p.  m. 

WASHINGTON,  D.  C.,  February  20,  1877.. 

The  Commission  met  at  four  o'clock  p.  m.,  pursuant  to  adjourn 
ment. 

Journal  of  the  16th,  17th,  and  19th  instant,  respectively,  was  read 
and  approved. 

Mr.  Commissioner  ABBOTT  moved  that  each  Commissioner  have 
leave  until  March  10,  proximo,  in  which  to  file  for  publication  in  the 
Record  an  opinion  respecting  the  cases  that  have  at  present  been 
acted  on  by  the  Commission. 

And  after  remarks, 

The  motion  was  withdrawn. 

On  motion  of  Mr.  Commissioner  GARFIELD,  the  Commission  took 
a  recess  until  six  o'clock  and  thirty  minutes. 

And  before  the  expiration  of  the  recess, 

On  motion  of  Mr.  Commissioner  STRONG,  (at  six  o'clock  and  fifteen 
minutes  p.  m.,)  the  Commission  adjourned  until  to-morrow  at  eleven 
o'clock  a.  m. 


WASHINGTON,  D.  C.,  February  21,  1877. 

The  Commission  met  at  eleven  o'clock  a.  m.,  pursuant  to  adjourn 
ment  ; 

And  on  motion  of  Mr.  Commissioner  GARFIELD,  the  Commission 
took  a  recess  until  one  o'clock  p.  m. 
After  recess, 

Journal  of  yesterday  w.as  read  and  approved. 

A  communication  from  the  two  Houses  of  Congress  in  joint  session 
was  presented  by  Mr.  Gorham,  Secretary  of  the  Senate,  and  read  as 
follows : 

HALL  OF  THE  HOUSE  OF  REPRESENTATIVES, 

February  21,  1877. 
To  the  President  of  the  Commission  : 

More  than  one  return  or  paper  purporting  to  be  a  return  or  certificate  of  electoral 
votes  of  the  State  of  Oregon  having  been  received  and  this  day  opened  in  the 
presence  of  the  two  Houses  of  Congress,  and  objections  thereto  having  been  made, 
the  said  returns,  with  all  accompanying  papers,  and  also  the  objections  thereto,  are 
herewith  submitted  to  the  judgment  and  decision  of  the  Commission,  as  provided 
by  law. 

T.  W.  FERRY, 
President  of  tlie  Senate. 

On  motion  of  Mr.  Commissioner  ABBOTT, 

Ordered,  That  all  certificates  and  the  objections  thereto  bo  printed. 

On  motion  of  Mr.  Commissioner  EDMUNDS, 

One  copy  of  each  set  of  certificates,  in  the  matter  of  the  electoral 
vote  of  the  State  of  Oregon,  were  read. 

In  reply  to  an  interrogatory  of  the  President  as  to  who  would  ap 
pear  for  the  objectors  in  the  matter  pending,  response  was  made  that 
Senator  Kelly  and  Representative  Jenks  would  appear  on  behalf  of 
objectors  to  Certificate  No.  1;  and  that  Senator  Mitchell  and  Repre 
sentative  Lawrence  would  appear  on  behalf  of  objectors.to  Certificate 
No.  3. 

Representative  Jenks,  of  objectors,  asked  that  the  Commission  re 
quire  the  Post-Office  Department  to  furnish  certified  copies  of  all 
papers  respecting  the  appointment  of  J.  W.  Watts  as  a  postmaster  in 
the  State  of  Oregon  ;  also,  that  subpoenas  be  issued  requiring  the  at 
tendance  of  Senator  John  H.  Mitchell  and  J.  W.  Watts  ; 

And  on  motion  of  Mr.  Commissioner  EDMUNDS  it  was  so  ordered. 

Senator  Kelly  asked  a  short  delay  before  proceeding  with  the  ar 
gument. 

And  on  motion  of  Mr.  Commissioner  EDMUNDS,  (at  one  o'clock  and 
forty  minutes,)  the  Commission  took  a  recess  for  thirty  minutes. 

After  recess, 

At  two'clock  and  ten  minutes,  as  provided  in  Rule  IV  of  the  rules 
of  the  Commission,  argument  on  behalf  of  objectors  to  Certificate  No. 


ELECTORAL  COMMISSION. 


281 


1  was  proceeded  with  by  Senator  Kelly,  and  the  same  was  concluded 
by  Representative  Jenks  at  i'onr  o'clock  and  thirteen  minutes.  And 
on  behalf  of  the  objectors  to  Certificate  No.  2,  argument  was  pro 
ceeded  with  by  Senator  Mitchell  at  four  o'clock  and  fifteen  minutes, 
and  the  same  was  concluded  by  Representative  Lawrence  at  six  o'clock 
and  eighteen  minutes. 

Mr.  Commissioner  EDMUNDS  moved  that  the  Commission  take  a 
recess,  to  meet  in  tho  Senate  Chamber  at  seven  o'clock  p.  in. 

Mr.  Commissioner  ABBOTT  moved  that  the  Commission  adjourn. 

And  after  remarks, 

The  two  latter  motions  were  withdrawn. 

Mr.  Hoadley,  of  counsel,  presented  brief  of  testimony  proposed  to 
be  offered  in  the  matter  pending. 

And  on  request  of  counsel  that  time  allowed  for  argument  be  ex 
tended  to  an  additional  two  hours, 

Mr.  Commissioner  EDMUNDS  offered  the  following : 

That  the  Commission  proceed  in  tho  Senate  Chamber  at  7.30  o'clock  p.  m.,  and 
that  counsel  have  three  and  a  half  hours  on  each  side  for  argument  on  the  whole 
case. 

On  motion  of  Mr.  Commissioner  MORTON  the  motion  was  divided. 

And  the  question  being  submitted,  "That  the  Commission  proceed 
in  tho  Senate  Chamber  at  7.30  o'clock  p.  m." 

It  was  decided  in  the  affirmative. 

And  the  question  recurring  on  the  latter  portion  of  said  motion, 
that  counsel  be  heard  three  and  a  half  hours  on  the  whole  case, 

It  was  determined  in  the  affirmative. 

And  at  six  o'clock  and  forty-three  minutes,  the  Commission  took  a 
recess  until  seven  o'clock  and  thirty  minutes. 

After  recess, 

The  Commission  met  in  the  Senate  Chamber,  and  proceeded  in  the 
matter  of  the  electoral  votes  of  the  State  of  Oregon. 

The  President  stated  that  counsel  would  be  heard  in  the  same  manner 
as  that  adopted  in  former  cases,  and  in  reply  to  an  interrogatory  as 
to  who  would  appear  as  counsel,  response  was  made  that  Messrs.  Mer- 
rick  and  Hoadley  would  appear  as  counsel  in  opposition  to  Certificate 
No.  1,  and  that  Messrs.  Evarts  and  Matthews  would  appear  ascoun 
sel  in  opposition  to  Certificate  No.  2. 

And  at  seven  o'clock  and  thirty  minutes,  argument  in  opposition 
to  certificate  No.  1  was  proceeded  with  by  Mr.  Hoadley,  who  con 
tinued  the  same  until  nine  o'clock  and  fifty  minutes. 

And  on  motion  of  Mr.  Commissioner  ABBOTT,  (at  nine  o'clock  and 
fifty-one  minutes  p.  m.)  the  Commission  adjourned  to  meet  in  the 
United  States  Supreme  Court  Room  at  ten  o'clock  a.  m.  to-morrow, 
the  22d  instant. 


WASHINGTON,  D.  C.,  Febrvary  22,  1877. 

The  Commission  met  at  ten  o'clock  a.  m..  pursuant  to  adjournment- 
Journal  of  yesterday  was  read  and  appproved. 
And  in  the  matter  of  the  electoral  vote  of  tho  State  of  Oregon,  Mr. 

Mathews,  olcounsel  in  opposition  to  Certificate  No.  2,  proceeded  with 

the  argument. 
On  concluding, 
Mr.  Commissioner  STRONG  offered  the  following  : 

Ordered,  That  the  evidence  described  in  offer  If  o.  1  bo  now  received,  subject  to  the 
opinion  of  tho  Commission  as  to  its  legal  effect ;  and  that  evidence  in  rebuttal  or 
in  explanation  thereof  be  also  now  received,  subject  also  to  a  consideration  of  its 
legal  effect. 

The  question  being  on  the  adoption  of  the  order, 

It  was  decided  in  the  affirmative. 

And  on  motion  of  Mr.  Commissioner  THURMAN,  (at  twelve  o'clock 
and  nine  minutes,)  the  Commission  took  a  recess  until  twelve  o'clock 
and  forty-five  minutes. 

After  recess, 

Mr.  Merrick,  of  counsel,  offered  the  following  as  evidence  in  the 
matter  pending : 

Copy  of  a  commission  of  the  Post-Office  Department,  dated  April  14, 
1373,  appointing  John  W.  Watts  a  postmaster  at  La  Fayette,  county 
of  Yam  hill,  and  State  of  Oregon. 

Also, 

Copy  of  a  commission  of  the  Post-Office  Department,  dated  January 
3,  1877,  appointing  Henry  W.  Hill  as  postmaster  at  La  Fayette, 
county  of  Yamhill,  and  State  of  Oregon. 

On  request  of  Mr.  Evarts,  of  counsel, 

James  N.  Tyner,  Postmaster-General  of  the  United  States,  was  called 
as  a  witness,  and,  there  being  no  objection,  the  oath  was  adminis 
tered  by  one  of  the  assistant  secretaries. 

Counsel  offered  as  evidence  a  telegram  dated  Portland,  Oregon, 
November  13,  1876,  addressed  to  the  Postmaster-General  at  Washing 
ton,  resigning  the  position  of  postmaster  at  La  Fayette,  Yamhill 
County,  Oregon,  and  signed  John  W.  Watts,  postmaster,  La  Fayette, 
Oregon. 

Objection  being  made  by  Mr.  Green,  of  counsel,  and  the  question 
being  submitted  by  the  President,  "Shall  the  objection  be  sustained  ?" 

It  was  decided  in  the  negative. 

Counsel  also  offered  tho  following  as  evidence: 

Copy  of  telegram  dated  Post-Office  Department,  Washington,  No 
vember  11,  167H,  addressed  to  John  W.  Watts,  Portland,  Oregon,  and 
signed  James  N.Tyuer,  Postmaster-General,  accepting  the  resignation 
of  said  Watts  as  postmaster  at  La  Fayette,  Yamhill  County,  Oregon^ 

Also, 

Letter  dated  November  12,  1S76,  signed  J.  W.  Watts,  postmaster, 


La  Fayette,  Oregon,  resigning  as  postmaster  at  La  Fayette,  Yamhill 
County,  State  of  Oregon,  and  addressed  to  J.  B.  Underwood,  special 
agent  of  the  Post-Office  Department. 

Objection  being  made  to  r  ceiviug  the  letter  aforesaid, 

The  President  submitting  the  question,  "Shall  the  objection  be  sus 
tained  ?" 

It  was  decided  in  the  negative. 

Counsel  also  offered  the  following  as  evidence  : 

,  Copy  of  telegram  dated  Post-Office  Department,  Washington,  No 
vember  14,  1876,  addressed  to  J.  M.  [B.]  Underwood,  special  agent 
Post-Office  Department,  Portland,  Oregon,  signed  by  James  N.  Tyner, 
Postmaster-General,  stating  that  John  W.  Watts,  postmaster  at  La 
Fayette,  Yamhill  County,  Oregon,  had  resigned  said  office,  and  directs 
said  Underwood  to  take  charge  of  the  office  made  vacant. 

Also, 

Telegram  dated  Portland,  Oregon,  November  14,  1876,  addressed  to 
James  N.  Tyner,  Postmaster-General,  Washington,  D.  C.,  signed  J.  B. 
Underwood,  special  agent,  stating  that  said  Underwood  would  take 
charge  of  office  on  that  evening. 

Also, 

Telegram  dated  Eugene  City,  Oregon,  November22, 1876,  addressed 
to  J.  W.  Marshall,  First  Assistant  Postmaster-General,  signed  J.  B. 
Underwood,  special  agent,  stating  to  appoint  Henry  W.  Hill  post 
master,  La  Fayette,  Oregon. 

Also, 

Letter  dated  Eugene,  Oregon.  November  24, 1876,  addressed  to  Hon. 
J.  N.  Tyner,  PostmasterrGeneral,  Washington,  D.  C.,  signed  J.  B. 
Underwood,  special  agent  Post-Office  Department,  informing  said 
Postmaster-General  that  in  accordance  with  instructions  the  post- 
office  at  La  Fayette,  Yamhill  County,  Oregon,  was  taken  charge  of 
by  the  writer. 

Also, 

A  designation  of  the  Post-Office  Department,  dated  November  23, 
1876,  signed  J.  W.  Marshall,  First  Assistant  Postmaster-General,  ap 
pointing  Henry  W.  Hill  as  postmaster  at  La  Fayette,  Yamhill  County, 
Oregon. 

Also, 

Bond  of  Henry  W.  Hill,  postmaster  La  Fayette,  Yamhill  County, 
Oregon,  bearing  indorsements  as  follows:  Date  of  appointment, 
November  23,  1876.  Date  of  bond,  December  11,  1876.  Date  of  Com 
mission,  January  3,  1877.  Bond  approved  January  3,  1877,  (signed,) 
James  N.  Tyner,  Postmaster-General. 

On  request  of  Mr.  Evarts,  of  counsel, 

John  W.  Watts,  of  Oregon,  and  J.  M.  McGrew,  Auditor  for  thoPost- 
Office  Department,  were  severally  called  as  witnesses,  the  oath  be 
ing  administered  by  one  of  the  assistant  secretaries. 

Mr.  Evarts,  of  counsel,  resumed  the  argument  in  opposition  to  Cer 
tificate  No.  2 ; 

And  on  concluding  same, 

Argument  in  opposition  to  Certificate  No.  1  was  resumed  by  Mr. 
Merrick,  of  counsel. 

On  conclusion, 

And  on  motion  of  Mr.  Commissioner  GARFIELD,  (at  four  o'clock 
and  twenty-nine  minutes,)  the  public  session  of  the  Commission  ad 
journed. 

And  on  motion  of  Mr.  Commissioner  THURMAN,  the  Commission 
took  a  recess  until  five  o'clock  p.  m. 

After  recess, 

The  Commission  met  with  closed  doors,  for  deliberation  in  the  mat 
ter  of  the  electoral  vote  of  the  State  of  Oregon. 

After  debate, 

Mr.  Commissioner  EDMUNDS  offered  the  following  : 

Resolved,  That  the  certificate  signed  by  E.  A.  Cronin  and  two  others,  purporting 
to  cast  the  electoral  votes  of  the  State  of  Oregon,  does  not  contain  or  certify  tho 
constitutional  votes  to  which  said  State  is  entitled. 

Pending  which, 

On  motion  of  Mr.  Commissioner  ABBOTT, 

Ordered,  That  the  vote  on  the  matter  now  pending  be  taken  at  four  o'clock  p. 
m.  to-morrow. 

And  on  motion  of  Mr.  Commissioner  HUNTON,  at  (seven  o'clock 
and  twenty-five  minutes  p.m.,)  the  Commission  adjourned  until  half 
past  ten  a.  m.  to-morrow. 


WASHINGTON,  D.  C.,  February  23,  1877. 

The  Commission  met,  with  closed  doors,  at  ten  "o'clock  and  thirty 
minutes  a.  m.,  pursuant  to  adjournment. 

Journal  of  yesterday  was  read,  corrected,  and  approved. 

And  the  Commission  resumed  its  deliberation  in  the  matter  of  tho 
electoral  vote  of  the  State  of  Oregon. 

The  question  being  on  the  resolution  offered  by  Mr.  Commissicaier 
EDMUNDS,  on  yesterday,  as  follows  : 

Jfesolvd,  That  tho  certificate  signed  by  E.  A.  Cronin  and  two  others,  purporting 
to  cast  tho  electoral  votes  of  the  State  of  Oregon,  docs  not  contain  or  certify  the 
constitutional  votes  to  which/said  State  is  entitled. 

After  debate, 

Mr.  Commissioner  BAYARD  presented  the  following: 

Hon.  T.  F.  liAYAiin. 

DE  vuSlK:  Mr.  THURMAN  has  been  in  bed  all  morning  and  now  suffering  from 
sue  h  intense  pain  that  it  will  be  impossible  lor  him  to  meet  the.  Commission  to-day 
Itespecil'ully. 

M.  A.  THUKMAN. 
FKIDAV,  February  23,  1877. 


282 


ELECTORAL  COMMISSION. 


And  Mr.  Commissioner  HOAR  offered  the  following : 
Jtexolred   That  Senators  BAYARD  and  FRELIXGHUYSEN  be  a  committee  to  call  at 
oueoon  Mr.  TIIUUMAN  to  learn  if  ho  will  consent  that  the  Commission  adjourn  to 
his  house  for  tho  purpose  of  receiving  his  vote  on  the  questions  relating  to  Oregon. 

The  question  being  on  the  adoption  of  the  resolution, 
It  was  decided  in  the  affirmative, 

YEAS 13 

NAYS * 

Those  who  voted  in  the  affirmative  are :  Messrs.  Abbott,  Bayard, 
Bradley,  Clifford,  Edmunds,  Field,  Freliughuyseu,  Garfield,  Hoar, 
Huuton,  Miller,  Payne,  and  Strong. 

The  vote  in  the  negative  being  cast  by  Mr.  Morton. 

So  the  resolution  was  agreed  to. 

Arid  on  motion  of  Mr.  Commissioner  STRONG,  (at  three  o'clock  p. 
m.,)  the  Commission  took  a  recess  for  half  an  hour. 

After  recess, 

Tho  committee  named  in  the  resolution  of  Mr.  Commissioner  HOAR 
reported  that  they  had  complied  with  the  same,  and  that  Mr.  Com 
missioner  THURMAN  would  receive  the  Commission  at  his  residence. 

And  on  motion  of  Mr.  Commissioner  HOAR, 

Ordered,  That  the  Commission  now  proceed  to  tho  house  of  Mr.  Commissioner 
TIIUIIMAX,  there  to  go  on  with  tho  case  now  before  it. 

And  in  accordance  with  the  above  order,  the  Commission  proceeded 
to  the  residence  of  Mr.  Commissioner  THURMAN,  in  the  city  of  Wash 
ington,  and  there  resumed  its  session  for  deliberation  in  the  matter 
of  the  electoral  votes  of  the  State  of  Oregon. 

Tho  question  being  on  the  adoption  of  the  resolution  pending, 
offered  by  Mr.  Commissioner  EDMUNDS  ; 

And  on  request,  the  said  resolution  was  modified  by  Mr.  Commis 
sioner  EDMUNDS  by  striking  out  the  words  "and  two  others,"  and 
inserting  "  J.  N.  T.  Miller,  and  John  Parker,"  and  read  as  follows: 

Ifcsolvfd,  That  tho  certificate  signed  by  E.  A.  Cronin,  J.  N.  T.  Miller,  and  John 
Parker,  purporting  to  east  the  electoral  votes  of  the  State  of  Oregon,  does  not 
contain  or  certify  the  constitutional  votes  to  which  tho  said  State  is  entitled. 

Mr.  Commissioner  FIELD  offered  the  following  as  a  substitute: 
Whereas  J.  W.  Watts,  designated  in  Certificate  No.  1  as  elector  of  the  State  of 
Oregon  for  President,  and  Vice-President,  on  the  day  of  election,  namely,  the  7th 
of  November,  1876,  held  an  office  of  trust  and  profit  under  the  United  States:  There 
fore, 

Resolved,  That  tho  said  J.  W.  Watts  was  then  ineligible  to  the  office  of  elector 
within  tho  express  terms  of  the  Constitution. 

The  question  being  on  the  adoption  of  the  substitute, 
It  was  decided  in  the  negative, 

YEAS 7 

NAYS : 8 

Those  who  voted  in  the  affirmative  are :  Messrs.  Abbott,  Bayard, 
Clifford,  Field,  Hunton,  Payue,  and  Thurman. 

Those  who  voted  in  the  negative  are  :  Messrs.  Bradley,  Edmunds, 
Frelinghuysen,  Garfield,  Hoar,  Miller,  Morton,  and  Strong. 

Also,  the  following  as  a  substitute  : 

Whereas  at  the  election  held  on  the  7th  of  November,  1876,  in  the  State  of  Ore 
gon,  for  electors  of  President  and  Vico-President,  W.  H.  Odell,  J.  W.  Watts,  and 
John  C.  Cartwright  received  the  highest  number  of  votes  cast  for  electors,  but  the 
said  Watts,  then  holding  an  office  of  trust  and  profit  under  the  United  States,  was 
ineligible  to  the  office  of  elector:  Therefore, 

Kesolved.  That  tho  said  Odell  and  Cartwright  were  the  only  persons  duly  elected 
at  said  election,  and  there  was  a  failure  on  tho  part  of  the  State  to  appoint  a  third 
elector. 

The  question  being  on  the  adoption  of  the  substitute, 

It  was  decided  in  the  negative, 

YEAS 7 

NAYS 8 

Those  who  voted  in  the  affirmative  are :  Messrs.  Abbott,  Bayard, 
Clifford,  Field,  Hnnton,  Payne,  and  Thurman. 

Those  who  voted  in  the  negative  are:  Messrs.  Bradley,  Edmunds, 
Frelinghuysen,  Garfield,  Hoar,  Miller,  Morton,  and  Strong. 

Also,  the  following  as  a  substitute : 

Whereas  the  Legislature  of  Oregon  has  made  no  provision  for  tho  appointment 
of  an  elector,  under  the  act  of  Congress,  where  there  was  a  failure  to  make  a  choice 
on  the  day  prescribed  by  law :  Therefore, 

Resolved,  That  the  attempted  election  of  a  third  elector  by  the  two  persons  chosen 
was  inoperative  and  void. 

The  question  being  on  the  adoption  of  the  substitute, 

It  was  decided  in  tho  negative, 

YEAS 7 

NAYS '. H 

Those  who  voted  in  the  affirmative  are :  Messrs.  Abbott,  Bayard,  Clif 
ford,  Field,  Hunton,  Payne,  and  Thurman. 

Those  who  voted  in  the  negative  are  :  Messrs.  Bradley,  Edmunds, 
Frelinghnysen,  Garfield,  Hoar,  Miller,  Morton,  and  Strong.  * 

Mr.  Commissioner  BAYARD  offered  the  following  as  a  substitute : 

P'snb'ed.  That  tho  vote  of  W.  H.  Odell  and  tho  vote  of  J.  C.  Cartwright,  cast 
for  Rutherford  B.  Hayes,  of  Ohio,  for  President  of  the  United  States,  and  for  Will 
iam  A.  Wheeler,  of  New  York,  for  Vice-President  of  tho  United  States,  are  tho 
vo!  es  provided  for  by  tho  Constitution  of  tho  United  States ;  and  that  the  aforesaid 
Odell  and  Cartwright,  and  they  only,  were  the  persons  duly  appointed  electors  in 
the  StatL  of  Oregon  at  the  election  held  November  7,  A.  D.  1876,  there  having  been 
:\  failnro  at  tho  said  election  to  appoint  a  third  elector  in  accordance  with  the,  Con- 
si  ;i  11!  ion  and  laws  of  the.  United  States  and  the  laws  of  tho  State  of  Oregon,  and  that 
the  two  votes  aforesaid  should  be  counted,  and  none  other,  from  tho  State  of  Oregon. 


The  question  being  on  the  adoption  of  the  substitute, 

It  was  decided  in  the  negative, 

YEAS 7 

NAYS 8 

Those  who  voted  in  the  affirmative  are:  Messrs.  Abbott,  Bayard, 
Clifford,  Field,  Hunton,  Payne,  and  Thurman. 

Those  who  voted  in  the  negative  arj  :  Messrs.  Bradley,  Edmunds, 
Frelinghuysen,  Garfield,  Hoar,  Miller,  Morton,  and  Strong. 

And  the  question  recurring  on  the  adoption  of  the  original  resolu 
tion,  as  offered  by  Mr.  Commissioner  EDMUNDS, 

It  was  determined  in  the  affirmative, 

YEAS 15 

NAYS 0 

Those  who  voted  in  the  affirmative  are :  Messrs.  Abbott,  Bayard, 
Bradley,  Clifford,  Edmunds,  Frelinghuysen,  Field,  Garfied,  Hoar,  Hun 
ton,  Miller,  Morton,  Payne,  Strong,  and  Thurman. 

There  being  no  votes  in  the  negative. 

So  the  resolution  was  agreed  to. 

Mr.  Commissioner  MORTON  offered  the  following  resolution  : 

Resolved,  That  W.  H.  Odell,  John  C.  Cartwright,  and  John  W.  Watts,  the  per 
sons  named  as  electors  in  certificate  No.  1,  were  the  lawful  electors  of  the  State  of 
Oregon,  and  that  their  votes  are  tho  votes  provided  for  by  the  Constitution  of  tho 
United  States,  and  should  be  counted  for  President  and  Vice-President  of  the  United 
States. 

Mr.  Commissioner  HUNTON  moved  to  strike  out  the  name  of  John 
W.  Watts,  in  the  above  resolution. 

And  the  question  being  on  the  adoption  of  the  motion, 

It  was  decided  in  the  negative, 

YEAS 7 

NAYS • 8 

Those  who  voted  in  the  affirmative  are  :  Messrs.  Abbott,  Bayard, 
Clifford,  Field,  Hunton,  Payne,  and  Thurman, 

Those  who  voted  in  tho  negative  are  :  Messrs.  Bradley,  Edmunds, 
Frelinghuysen,  Garfield,  Hoar,  Miller,  Morton,  and  Strong. 

The  question  recurring  on  the  adoption  of  the  resolution,  as  offered 
by  Commissioner  MORTON, 

It  was  determined  in  the  affirmative, 

YEAS 8 

NAYS 7 

Those  who  voted  in  the  affirmative  are:  Messrs.  Bradley,  Edmunds, 
Frelinghuysen,  Garfield,  Hoar,  Miller,  Morton,  and  Strong. 

Those  who  voted  in  the  negative  are  :  Messrs.  Abbott,  Bayard,  Clif 
ford,  Field,  Huuton,  Payne,  and  Thurman. 

So  the  resolution  was  agreed  to. 

Mr.  Commissioner  EDMUNDS  offered  the  following: 

Ordered,  That  the  following  be  adopted  as  the  final  decision  and  report  in  the 
matters  submitted  to  the  Commission  as  to  the  electoral  vote  of  the  State  of 
Oregon : 

ELECTORAL  COMMISSION, 
Washington,  D.  C.,  February  23,  A.  D.  1877. 

To  the  President  of  the  Senate  of  the  United  States,  presiding  in  the  meeting  of 
the  two  Houses  of  Congress  under  the  act  of  Congress  entitled  "An  act  to  pro 
vide  for  and  regulate  the  counting  of  votes  for  President  and  Vice-President,  and 
tho  decision  of  questions  arising  thereon,  for  tho  term  commencing  March  4,  A. 
D.  1»77,"  approved  January  29,  A.  D.  1877 : 

The  Electoral  Commission  mentioned  in  said  act  having  received  certain  certifi 
cates,  and  papers  purporting  to  be  certificates,  and  papers  accompanying  tho  same, 
of  the  electoral  votes  from  tho  State  of  Oregon,  and  the  objections  thereto,  submit 
ted  to  it  under  said  act,  now  report  that  it  has  duly  considered  the  same,  pursuant 
to  said  act,  and  has  by  a  majority  of  votes  decided,  and  does  hereby  decide,  that 
the  votes  of  W.  II.  Odell.  J.  C.  Cartwright,  and  J.  W.  Watts,  named' in  the  certifi 
cate  of  said  persons,  and  in  tho  papers  accompanying  tho  same,  which  votes  are 
certified  by  said  persons,  as  appears  by  tho  certificates  submitted  to  the  commis 
sion  as  aforesaid,  and  marked  No.  1  N.  C.  by  said  commission,  and  herewith  re 
turned,  are  the  votes  provided  for  by  tho  Constitution  of  the  United  States,  and 
that  tho  same  are  lawfully  to  be  counted  as  therein  certified,  namely :  Three  votes 
for  Rutherford  B.  Hayes,  of  tho  State  of  Ohio,  for  President,  and  three  votes  for 
William  A.  Wheeler,  of  the  State  of  New  York,  for  Vice-President. 

The  Commission  has  by  a  majority  of  votes  also  decided,  and  does  hereby  decide 
and  report,  that  the  throe  persons  first  above  mentioned ^wero  duly  appointed  elect 
ors  in  and  by  the  State  of  Oregon.  The  brief  ground  of  this  decision  is  that  it  ap 
pears  upon  such  evidence  as  by  the  Constitution  and  the  law  named  in  said  act  of 
Congress  is  competent  and  pertinent  to  tho  consideration  of  the  subject,  that  the 
before-mentioned  electors  appear  to  have  been  lawfully  appointed  such  electors  of 
President  and  Vice-President  of  the  United  States  for  the  term  beginning  March 
fourth,  anno  Domini  eighteen  hundred  and  seventy-seven,  of  the  State  of  Oregon, 
and  that  they  voted  as  such  at  the  timo  and  in  the  manner  provided  for  by  the 
Constitution  of  the  United  States  and  tho  law. 
And  we  are  further  of  opinion — 

That  by  the  laws  of  (he  State  of  Oregon  the  duty  of  canvassing  the  returns  of  all 
the  votes  given  at  an  election  for  electors  of  President  and  Vice-President  was  im 
posed  upon  the  secretary  of  state,  and  upon  no  one  else. 

That  tho  secretary  of' state  did  canvass  the  returns  in  the  case  before  us,  and 
thereby  ascertained'  that  J.  C.  Cartwright,  W.  H.  Odell,  and  J.  W.  Watts  had  a  ma 
jority  of  all  the  votes  given  for  electors  and  had  tho  highest  number  of  votes  for 
that  office,  and  by  the  express  language  of  the  statute  those  persons  are  deemed 
elected. 

That  in  obedience  to  his  duty  the  secretary  made  a  canvass  and  tabulated  state 
ment  of  the  votes,  showing  this  result,  which  according  to  law  he  placed  011  file  in 
his  oflice  on  the  4th  day  of  December,  A.  D.  187G.  All  this  appears  by  an  official 
certificate  under  tho  seal  of  the  State,  and  signed  by  him  and  delivered  by  him  to 
tho  electors,  and  forwarded  by  them  to  the  President  of  the  Senate  with  their  votes. 
That  tho  refusal  or  failure  of  the  governor  of  Oregon  to  sign  the  certificate  of 
the  election  of  tho  persons  so  elected  does  not  have  the  effect  of  defeating  their  ap 
pointment  as  such  electors. 

"  That  the  act  of  tho  governor  of  Oregon  in  giving  E.  A.  Cronin  a  certificate  of  his 
election,  though  ho  received  a  thousand  votes  less  than  Watts,  on  the  ground  that 
tho  latter  wt> s  ineligible,  was  without  authority  of  law,  and  is  therefore  void. 


ELECTORAL   COMMISSION. 


283 


That  although  the  evidence  shows  that  "Watts  was  a  postmaster  at  the  time  of 
his  election,  that  fact  is  rendered  immaterial  by  his  resignation,  both  as  postmaster 
and  elector,  and  his  subsequent  appointment  to  fill  the  vacancy  so  made  by  the 
electoral  college. 

The  Commission  has  also  decided,  and  does  hereby  decide,  by  a  majority  of  votes, 
and  report  that  as  a  consequence  of  the  foregoing,  and  upon  the  grounds  before 
stated,  the  paper  purporting  to  be  a  certificate  of  the  electoral  vote  of  said  State  of 
Oregon,  signed  by  E.  A.  Cronin,  J.  N.  T.  Miller,  and  John  Parker,  marked  No.  2, 
N.  C.  by  the  Commission,  and  herewith  returned,  is  not  the  certificates  of  the  votes 
provided  for  by  the  Constitution  of  the  United  States,  and  that  they  ought  not  to 
bo  counted  as  such. 

Done  at  Washington,  D.  C.,  tho  day  and  year  first  above  written. 

The  question  being  on  tho  adoption  of  the  order,  and  report  of  tho 
Commission  in  tho  matter  pending, 

It  was  decided  in  the  affirmative, 

YEAS 8 

NAYS 7 

Those  who  voted  in  the  affirmative  are  :  Messrs.  Bradley,  Edmunds, 
Frelinghuyseii,  Garfield,  Hoar,  Miller,  Morton,  and  Strong. 

Those  who  voted  in  the  negative  are  :  Messrs.  Abbott,  Bayard,  Clif 
ford,  Field,  Hunton,  Payne,  and  Thurman. 

So  the  report  of  the  Commission  was  adopted  ; 

And  said  decision  and  report  was  thereupon  signed  by  the  members 
agreeing  therein,  as  follows : 

SAM.  F.  MILLER. 

W.  STRONG. 

JOSEPH  P.  BRADLEY. 

GEO.  F.  EDMUNDS. 

O.  P.  MORTON. 

FRED'S.  T.  FRELINGHUYSEN. 

JAMES  A.  GARFIELD. 

GEORGE  F.  HOAR. 

Mr.  Commissioner  EDMUNDS  offered  the  following : 

Ordered,  That  the  President  of  the  Commission  transmit  a  letter  to  the  President 
of  the  Senate,  in  tbe  following  words  : 

WASHINGTON,  D.  C.,  February  23,  A.  D.  1877. 

SIR  :  I  am  directed  by  the  Electoral  Commission  to  inform  tho  Senate  that  it  has 
considered  and  decided  upon  tho  matters  submitted  to  it,  under  the  act  of  Congress 
concerning  the  same,  touching  the  electoral  votes  from  the  State  of  Oregon,  and 
herewith  by  direction  of  said  Commission  I  transmit  to  you  the  said  decision,  in 
writing,  signed  by  the  members  agreeing  therein,  to  be  read  at  the  meeting  of  the 
two  Houses,  according  to  said  act.  All  the  certificates  and  papers  sent  to  the  Com 
mission  by  the  President  of  the  Senate  are  herewith  returned. 

Hon.  THOMAS  W.  FEKUT, 

President  of  the  Senate. 

The  question  being  on  tho  adoption  of  the  order, 

It  was  decided  in  the  affirmative  ; 

Aud  the  letter  was  thereupon  signed  accordingly  by 

NATHAN  CLIFFORD, 

President  of  the  Commission. 

Mr.  Commissioner  EDMUNDS  offered  the  following: 

Ordered,  That  the  President  of  the  Commission  transmit  to  the  Speaker  of  the 
House  of  Representatives  a  letter  in  the  following  words : 

"WASHINGTON,  D.  C.,  February  23,  A.  D.  1877. 

SIR  :  I  am  directed  by  the  Electoral  Commission  to  inform  the  House  of  Repre 
sentatives  that  it  has  considered  and  decided  upon  the  matters  submitted  to  it,  under 
the  act  of  Congress  concerning  the  same,  touching  the  electoral  votes  from'the 
State  of  Oregon,  and  have  transmitted  said  decision  to  tho  President  of  the  Senate, 
to  be  read  at  tho  meeting  of  the  two  Houses,  according  to  said  act. 

Hon.  SAMUEL  J.  RANDALL, 

Speaker  of  the  House,  of  Representatives. 

The  question  being  on  the  adoption  of  the  order, 

It  was  determined  in  the  affirmative ; 

Aud  the  letter  was  thereupon  signed  accordingly  by 

NATHAN  CLIFFORD, 

President  of  the  Commission. 

On  motion  of  Mr.  Commissioner  MORTON, 

Ordered,  That  the  injunction  of  secrecy  imposed  on  the  acts  and  proceedings  of 
the  Commission  be  removed. 

And  on  motion  of  Mr.  Commissioner  GARFIELD,  (at  live  o'clock  p. 
m.,)  the  Commission  adjourned  to  meet  in  the  United  States  Supreme 
Court  Room  to-morrow  at  twelve  o'clock  noon. 


WASHINGTON,  D.  C.,  February  24,  1877. 

The  Commission  met  at  twelve  o'clock  noon,  pursuant  to  adjourn 
ment.  Present :  Commissioners  Bayard,  Bradley,  Clifford,  Edniuuds> 
Field,  Frelinghuysen,  Hoar,  Hunton,  and  Payne. 

Journal  of  yesterday  was  read,  corrected,  and  approved, 

And  there  being  no  business, 

On  motion  of  Mr.  Commissioner  EDMUNDS,  tho  Commission  took 
a  recess  until  three  o'clock  p.  m. 

At  that  hour  the  Commission  re-assembled, 

Aud  on  motion  of  Mr.  Commissioner  MILLER,  the  recess  was  ex 
tended  until  four  o'clock. 

Aud  on  again  re-assembling,  the  recess  was  further  extended,  on 
motion  of  Mr.  Commissioner  EDMUNDS,  until  five  o'clock  p.  m.,  un 
less  sooner  assembled. 

And  before  the  expiration  of  the  recess, 

At  four  o'clock  and  fifty-three  minutes  p.  m.,  on  motion  of  Mr.  Com 
missioner  EDMUNDS,  tho  Commission  adjourued  until  ten  o'clock  a. 
m.  Monday,  the  2(ith  instant. 

WASHINGTON,  D.  C.,  February  26,  1877. 
The  Commission  met  at  ten  o'clock  a.  m.,  pursuant  to  adjournment. 


Present:  The  President  and  Commissioners  Bradley,  Morton,  and 
Strong. 

There  being  no  business  before  the  Commission, 

On  motion  of  Mr.  Commissioner  STRONG,  a  recess  was  taken  until 
one  o'clock  p.  in. 

On  re-assembling, 

The  PRESIDENT  laid  before  the  commission  the  following  com 
munication  : 

1017  FOURTEENTH  STREET,  "WASHINGTON,  D.  C., 

February  16,  1877. 
Hon.  NATHAN  CLIFFORD, 

President  of  the  Electoral  Commission. 

SIR  :  Continued  ill  health  has  confined  mo  to  my  room,  and  for  days  past  to  my 
bed,  from  which  by  order  of  my  physician  I  cannot  be  removed  to-day,  nor  have  I 
any  assurance  that  I  will  bo  able  to  get  out  for  some  days  to  come. 

Under  these  circumstances  of  physical  disability  I  am  compelled  to  notify  tho 
Commission  that  I  am  not  able  to  attend  its  sessions,  and  ask  that  the  vacancy 
caused  by  my  absence  may  be  filled  as  provided  by  law. 
Yours,  respectfully, 

A.  G.  THURMAN. 

On  motion  of  Mr.  Commissioner  EDMUNDS,  the  communication 
was  placed  on  file. 

Mr.  Commisioner  EDMUNDS  offered  the  following: 
Whereas  the  Hon.  ALLEN  G.  THUUMAN,  member  of  this  Commission  on  the  part  of 
the  Senate  of  the  United  States,  has  now  communicated  to  tho  Commission  by  a 
letter  in  writing  the  fact  that  he  has  become  physically  unable  to  perform  the  du 
ties  required  by  tho  act  of  Congress  establishing  said  Commission; 

And  whereas  the  saidTiiURMAN  has  in  fact  become  ph3'sically  unable  to  perform 
the  said  duties :  Therefore, 

Resolved,  That  the  President  of  tho  Commission  forthwith  communicate  said  fact 
to  tho  Senate  of  the  United  States,  as  required  by  said  act,  in  order  that  the  va 
cancy  so  created  in  said  Commission  may  DO  lawfully  filled. 

The  question  being  on  its  adoption, 

It  was  decided  in  the  affirmative. 

Mr.  Commissioner  EDMUNDS  offered  the  following: 

Ordered,  That  the  President  of  the  Commission  transmit  a  letter  to  the  President 
of  the  Senate  in  the  following  words : 

ELECTORAL  COMMISSION, 
Washington,  D.  O.,  February  20,  1877. 
To  the  President  of  the  Senate  of  the  United  States. 

SIR:  I  am  directed  by  the  Electoral  Commission,  formed  under  the  act  of  Con 
gress  approved  January  29,  A.  D.  1877,  entitled  "An  act  to  provide  for  and  regu 
late  the  counting  of  votes  for  President  and  Vice-President,  and  the  decision"  of 
questions  arising  thereon,  for  the  term  commencing  March  4,  A.  1).  1877,"  to  com 
municate  to  tho  Senate  a  copy  of  a  resolution  of  the  Commission  this  day  adopted 
touching  a  vacancy  therein  occasioned  by  the  physical  inability  of  the  Hon.  ALLEN  G. 
THURMAN,  a  Senator  and  member  of  said  Commission,  to  proceed  with  its  duties. 

Respectfully,  yours, 

The  question  being  on  the  adoption  of  the  order, 
It  was  decided  in  the  affirmative; 
And  the  letter  was  thereupon  signed  accordingly  by 

NATHAN  CLIFFORD, 
President  of  the  Commission. 

And  on  motion  of  Mr.  Commissioner  HOAR,  the  Commission  took 
a  recess  until  four  o'clock  p.  m.,  unless  sooner  assembled  by  a  call  of 
the  President. 
On  re  assembling, 

The  PRESIDENT  laid  before  the  Commission  the  following  com 
munication  and  proceedings  of  the  Senate  of  the  United  States : 

IN  THE  SENATE  OF  THE  UNITED  STATES, 

February  26,  1877. 
Hon.  NATHAN  CLIFFORD, 

President  of  the  Electoral  Commission. 

SIR  :  I  have  the  honor  to  communicate  to  you,  to  be  laid  before  the  Electoral  Com 
mission  the  proceedings  of  tho  Senate  upon  the  submission  of  your  communication 
of  this  day  announcing  the  inability  of  tho  Hon.  ALLEN  G.  THURMAN,  a  member  of 
the  Commission,  to  perform  the  duties  required  by  the  act  creating  tho  said  Commis 
sion. 
I  have  the  honor  to  be,  sir,  respectfully,  your  obedient  servant, 

T.  W.  FERRY, 
President  pro  tempore. 

IN  THE  SENATE  OF  THE  UNITED  STATES, 
February  26,  1877. 

The  President  pro  tempore,  laid  before  the  Senate  a  communication  from  tho  Pres 
ident  of  the  Electoral  Commission  announcing  that  the  Hon.  ALLEN  G.  THURMAN, 
a  member  of  the  said  Commission  on  the  part  of  tho  Senate,  had  become  physically 
unable  to  perform  the  duties  required  by  the  act  of  Congress  establishing  the  said 
Commission. 

The  Senate  thereupon  proceeded,  as  required  by  the  act  of  Congress  creating  the 
said  Commission,  to  elect  by  a  viva  voce  vote  a  member  of  tho  Senate  to  fill  the 
vacancy  in  said  Commission  created  by  tho  inability  of  the  Hon.  ALLEN  G.  I'nuu- 
MAN  :  and 

On  counting  the  votes  it  appeared  that  the  Hon.  FRANCIS  KEKNAN  was  unan 
imously  elected  to  rill  the  vacancy  in  the  said  Commission. 

GEO.  C.  GORHAM,  Secretary. 

The  papers  having  been  read, 

The  prescribed  oath  was  administered  by  the  President  and  sub 
scribed  to  by  Hon.  FRANCIS  KERNAN,  as  a  member  of  the  Commis 
sion,  to  fill  the  vacancy  created  by  the  inability  of  Hon.  Allen  G.  Thur 
man  :  and, 

On  motion  of  Mr.  Commissioner  EDMUNDS,  the  Commission  took 
a  recess  until  six  o'clock  p.  m.,  unless  sooner  assembled  by  a  call  of 
the  President. 

The  recess  having  expired, 

Journal  of  Saturday  was  read  and  approved. 

A  communication  from  the  two  Houses  of  Congress,  in  joint  session, 
was  presented  by  Mr.  Gorham,  Secretary  of  the  Senate,  and  read  as 
follows : 


284 


ELECTORAL  COMMISSION. 


HALL  OF  THE  HOUSE 

February  2(5,  1877. 

To  the  President  of  the  Commission: 

I  More  than  one  return,  or  paper  purporting  to  bo  a  return,  or  certificate  of  doctoral 
votes  of  tho  State  of  South  Carolina  having  been  received  and  this  day  opened  in 
the  presence  of  tho  two  Houses  of  Congress,  and  objections  thereto  having  been 
made,  the  said  returns,  with  all  accompanying  papers,  and  also  tho  objections 
thereto,  are  herewith  submitted  to  tho  judgment  and  decision  of  the  Commission 
as  provided  by  law. 

T.  W.  FERRY, 
President  of  the  Senate. 

On  motion  of  Mr.  Commissioner  EDMUNDS,  the  Secretary  was  di 
rected  to  read  the  certificates  received  from  tho  President  of  the 
Senate, 

And  before  the  same  was  concluded, 

On  motion  of  Mr.  Commissioner  MILLER,  a  further  reading  was 
dispensed  with. 

In  reply  to  an  interrogatory  of  the  President  as  to  who  would  ap 
pear  on  behalf  of  the  objectors  in  the  matter  pending,  response  was 
made  that  Representatives  Cochrane  and  Hurd  would  appear  on  be 
half  of  the  objectors  to  Certificate  No.  1 ;  and  that  Senator  Chris- 
tiancy  and  Representative  Lawrence  would  appear  on  behalf  of  the 
objectors  to  Certifiacte  No.  2. 

Mr.  Commissioner  HUNTON  moved  that  the  papers  transmitted  to 
the  Commision  to-day  by  the  President  of  the  Senate  be  printed. 

Pending  which, 

In  reply  to  an  interrogatorry  of  the  President  as  to  who  wonld 
appear  as  counsel  in  the  matter  pending,  response  was  made  that 
Messrs.  Mathews  and  Shellabarger  would  appear  as  counsel  in  oppo 
sition  to  Certificate  No.  2,  and  that  counsel  in  opposition  to  Certifi 
cate  No.  1  wonld  be  named  to-morrow. 

The  question  being  on  the  motion  pending  of  Mr.  Commissioner 
HUNTON  to  print  certain  papers, 

It  was  determined  in  the  affirmative. 

And  on  motion  of  Mr.  Commissioner  HUNTON,  (at  six  o'clock  and 
forty-five  minutes  p.  in.,)  the  Commission  adjourned  until  ten  o'clock 
a.  m.  to-morrow. 


WASHINGTON,  D.  C., 'February  27,  1877. 

The  Commission  met  at  ten  o'clock  a.  m.,  pursuant  to  adjournment 

Journal  of  yesterday  was  read  and  approved. 

And  the  Commission  proceeded  in  the  matter  of  the  electoral  votes 
of  the  Staf.e  of  South  Carolina. 

And  on  behalf  of  the  objectors  to  Certificate  No.  1,  argument  was 
proceeded  with  by  Representative  Hurd. 

On  concluding, 

In  reply  to  an  interrogatory  of  the  President  respecting  counsel, 
response  was  made  that  Messrs.  Black  and  Blair  would  appear  as 
counsel  in  opposition  to  Certificate  No.  1. 

Brief  of  testimony  proposed  to  be  offered  in  the  matter  pending 
was  read  by  Mr.  Representative  Cochrane,  of  objectors  : 

And  no  further  argument  being  presented  on  behalf  the  objectors 
to  Certificate  No.  1, 

Mr.  Representative  Lawrence  proceeded  with  argument  on  behalf 
of  the  objectors  to  Certificate  No.  2. 

On  concluding,  and  no  further  argument  being  presented  on  behalf 
of  the  objectors  to  Certificate  No.  2,  the  President  stating  that  coun 
sel  would  bo  heard  on  the  question  of  the  admissibility'of  evidence 
and  its  effect  in  the  matter  pending, 

Argument  in  opposition  to  Certificate  No.  1  was  proceeded  with  by 
Mr.  Blair,  of  counsel. 

On  concluding,  % 

Counsel  in  opposition  to  Certificate  No.  2  submitted  tho  matter 
pending  without  argument. 

On  motion  of  Mr.  Commissioner  BAYARD, 

Ordered,  That  the  offers  of  proof  proposed  in  opposition  to  Certificate  No.  1,  as 
read  by  counsel,  be  printed. 

Mr.  Black,  of_  counsel  in  opposition  to  Certificate  No.  1,  continued 
the  argument,  and  concluded  same  at  one  o'clock  and  five  minutes; 

And,  on  motion  of  Mr.  Commissioner  EDMUNDS,  (at  one  o'clock  and 
nine  minutes,)  the  public  session  of  the  Commission  adjourned. 

And,  on  motion  of  Mr.  Commissioner  EDMUNDS,  a  recess  was  taken 
until  one  o'clock  and  forty-five  minutes. 

After  recess, 

The  Commission  re-assembled,  with  closed  doors,  for  deliberation  in 
the  matter  of  the  electoral  vote  of  tho  State  of  South  Carolina. 

After  debate, 

Mr.  Commissioner  STRONG  moved,  (at  four  o'clock  and  twenty  min 
utes,)  that  the  vote  on  the  question  pending  bo  taken  in  one  hour  from 
that  time. 

And    fter  remarks, 

Tho  motion  was  withdrawn. 

And  after  further  debate, 

Mr.  Commissioner  EDMUNDS  moved  that  tho  vote  on  the  question 
pending  be  taken  by  six  o'clock  p.  m. 

The  question  being  taken  on  its  adoption, 

It  was  decided  in  the  affirmative, 

YKAS g 

NAYS "_[  ".'7 


Those  who  voted  in  the  affirmative  are :  Messrs.  Bradley,  Edmunds, 
Frelinghnyscn,  Garfield,  Hoar,  Miller,  Morton,  and  Strong. 

Those  who  voted  in  the  negative;  are  :  Messrs.  Abbott,  Bayard,  Clif 
ford,  Field,  Hunton,  Kernan,  and  Payne. 

So  the  motion  was  agreed  to. 

The  time  allowed  for  debate  having  expired, 

Mr.  Commissioner  MORTON  offered  the  following  : 

Resolted,  That  it  is  not  competent  for  the  two  Houses,  assembled  for  the  purpose 
of  counting  tho  votes  for  President  and  Vice-President,  to  inquire  by  evidence 
whether  a  State,  regularly  represented  in  tho  two  Houses  of  Congress  and  recog 
nized  as  a  State  of  the  United  States  by  the  other  Departments  of  tho  Government, 
has  a  government  republican  in  form. 

Resolved,  That  while  the  existence  of  public  disturbance  and  anarchy  in  any 
State,  to  such  an  extent  as  to  make  it  impossible  for  the  State  to  exercise  its  right 
to  appoint  electors  of  President  and  Vice-President,  and  to  express  its  will  in  that 
behalf,  is  sufficient  cause  for  rejecting  any  electoral  votes  purporting  to  be  tho 
votes  of  electors  appointed  thereby ;  yet  that  when  a  State  is  regularly  repre 
sented  as  a  State  in  the  Congress  'of  the  United  States,  and  is  recognized  a.s  a 
State  by  tho  other  Departments  of  the  Government,  and  has  a  government  repub 
lican  in  form,  and  does  appoint  electors  in  tho  manner  prescribed  by  the  Legisla 
ture  thereof,  evidence  cannot  be  received  by  the  two  Houses  of  Congress  assembled 
to  count  the  votes  for  President  and  Vice-President  as  aforesaid,  to  show  that  dis 
turbances  existed  at  the  time  of  election  which  may  have  interfered  to  a  greater  or 
less  extent  with  the  freedom  of  election  at  the  polls  in  said  State. 

Resolved,  That  it  is  not  competent  for  the  two  Houses  of  Congress,  when  assem 
bled  to  count  the  votes  for  President  and  Vice-President,  by  taking  evidence  to  in 
quire  into  the  regularity  of  the  action  of  the  President  of  the  United  States  in 
sending  a  military  force  into  any  State  for  the  preservation  of  order  or  the  sup 
pression  of  insurrection  and  domestic  violence,  in  order  by  such  proof  to  lay  a 
ground  for  rejecting  the  electoral  vote  of  said  State. 

Resolved,  That  in  view  of  the  propositions  contained  in  the  three  foregoing  reso 
lutions  tho  evidence  offered  to  show  that  the  State  of  South  Carolina  at  the  late 
election  did  not  have  a  republican  form  of  government ;  and  the  evidence  offered 
on  tho  subject  of  disorder  and  violence,  and  the  presence  of  troops  in  said  State 
during  said  election,  is  not  competent :  but  that  notwithstanding  the  offer  of  such 
evidence  Ihe  electoral  votes  of  tho  State  of  South  Carolina  ought  to  be  received  and 
counted,  if  not  objectionable  on  other  grounds. 

Resolved,  That  the  other  objections  to  Certificate  No.  1  show  no  valid  cause  for 
rejecting  the  same. 

Mr.  Commissioner  FIELD  offered  tho  following  as  substitutes: 
Resolved,  That  evidence  is  admissible  to  show  that  prior  to  and  during  tho  elec 
tion  on  the  7th  day  of  November,  187C,  in  tho  State  of  South  Carolina,  there  wore 
unlawfully  stationed  in  various  parts  of  the  State,  at  or  near  tho  polling-places,  de 
tachments  of  troops  of  tho  Army  of  the  United  States,  by  whose  presence  and  in 
terference  qualified  voters  of  the  State  were  deprived  of  the  right  of  suffrage,  and 
a  free  choice  by  the  people  of  presidential  electors  was  prevented. 

And  the  following : 

Resolved,  Thatevidenco  is  admissible  to  show  that  at  the  election  on  the  7th  day 
of  November,  1670,  in  South  Carolina,  there  were  stationed  at  the  several  polling- 
places  in  tho  State  deputy  marshals  of  the  United  States  exceeding  one  thousand 
in  number,  by  whoso  unlawful  action  and  interference,  under  orders  from  the  De 
partment  of  Justice,  qualified  voters  of  the  State  were  deprived  of  tho  right  of 
sufi'rigo,  and  a  free  choice  by  the  people  of  presidential  electors  was  prevented. 

The  question  being  on  the  adoption  of  the  substitutes, 

It  was  decided  in  the  negative, 

YEAS , 7 

NAYS 8 

Those. who  voted  in  the  affirmative  are:  Messrs.  Abbott,  Bayard, 
Clifford,  Field,  Hunton,  Kernan,  and  Payne. 

Those  who  voted  in  the  negative  are :  Messrs.  Bradley,  Edmunds, 
Frelinghuysen,  Garfield,  Hoar,  Miller,  Morton,  and  Strong. 

So  the  substitutes  were  not  agreed  to. 

And  the,  question  recurring  on  the  adoption  of  tho  resolutions 
offered  by  Mr.  Commissioner  MORTON, 

It  was  determined  in  the  affirmative, 

YEAS 8 

NAYS 7 

Those  who  voted  in  the  affirmative  are :  Messrs.  Bradley,  Edmunds, 
Frclinghuyseu,  Garfield,  Hoar,  Miller,  Morton,  and  Strong. 

Those  who  voted  in  the  negative  are:  Messrs.  Abbott,  Bayard, 
Clifford,  Field,  Hunton,  Kernan,  and  Payne. 

So  the  resolutions  were  adopted. 

Mr.  Commissioner  FRELINGHUYSEN  offered  the  following  : 

Resolved,  That  Theodore  R.  Barker,  S.  McGowan,  John  W.  Harrington,  John 
Isaac  Ingram,  William  Wallace,  John  B.  Erwin,  Robert  Aldrich,  the  persons  named 
as  electors  in  Certificate  No.  2,  were  not  the  lawful  electors  for  the  State  of  South 
Carolina,  and  that  their  votes  are  not  the  votes  provided  for  by  tho  Constitution  of 
the  United  States,  and  should  not  be  counted. 

The  question  being  on  its  adoption, 

It  was  decided  in  the  affirmative, 

YEAS 15 

NAYS None 

As  follows:  Messrs.  Abbott,  Bayard,  Bradley,  Clifford,  Edmunds, 
Field,  Frelinghuysen,  Garfield,  Hoar,  Hunton.  Keruan,  Miller,  Mor 
ton,  Payne,  and  Strong. 

Mr.  Commissioner  MORTON  offered  the  following : 

Resolved,  ThatC.  C.  Boweu,  J.  Winsmith,  Thomas  B.  Johnston,  Timothy  Hnrley, 
W.  B.  Nash,  Wilsou  Cook,  and  "W.  P.  Myers,  tho  persons  named  as  electors  in  Cer 
tificate  No.  1,  were  the  lawful  electors  'for  the  State  of  South  Carolina,  and  that 
their  votes  are  the  votes  provided  for  by  the  Constitution  of  the  United  States,  and 
should  be  counted  for  President  and  Vice-Presideut  of  tho  United  States. 

The  question  being  on  its  adoption, 

It  was  decided  in  tho  affirmative, 

YEAS 8 

NAYS  ..  7 


ELECTORAL  COMMISSION. 


285 


Those  who  voted,  in  the  affirmative  are:  Messrs.  Bradley,  Edmunds, 
Freliughuysen,  Garfield,  Hoar,  Miller,  Morton,  and  Strong. 

Those  who  voted  in  the  negative  are :  Messrs.  Abbott,  Bayard,  Clif 
ford,  Field,  Hunton,  Kernan,  and  Payne. 

So  the  resolution  was  agreed  to. 

Mr.  Commissioner  MILLER  offered  the  following : 

Ordered,  That  the  following  be  adopted  as  the  final  decision  and  report  in  the 
matters  submitted  to  the  Commission  as  to  the  electoral  vote  of  tho  State  of  South 
Carolina: 

ELECTORAL  COMMISSION, 
Washington,  D.  O.,  February  27,  1877. 

To  tho  President  of  the  Senate  of  the  United  States,  presiding  in  the  meeting  of 
the  two  Houses  of  Congress  under  the  act  of  Congress  entitled  "  An  act  to  pro 
vide  for  and  regulate  the  counting  of  votes  for  President  and  Vice-President,  and 
the  decision  of  questions  arising  thereon,  for  the  term  commencing  March  4  A. 
D.  1877,"  approved  January  21),  A.  D.  1877: 

The  Electoral  Commission' mentioned  in  said  act  having  received  certain  certifi 
cates,  or  papers  purporting  to  be  certificates,  and  papers  accompanying  the  same, 
of  the  electoral  votes  from  tho  State  of  South  Carolina,  and  the  objections  thereto, 
submitted  to  it  under  said  act,  now  report  that  jt  has  duly  considered  the  same, 
pursuant  to  said  act,  and  has  by  a  majority  of  votes  decided,  and  does  hereby  de 
cide,  that  the  votes  of  C.  C.  Bowen,  J.  "Winsmith,  Thomas  B.  Johnston,  Timothy 
Hurley.  W.  B.  Nash,  "Wilson  Cook,  and  W.  V.  Myers,  named  in  the  certificate  of 
D.  H.  Chamberlain,  governor  of  said  State,  which  votes  are  certified  by  said  per 
sons,  as  appears  by  the  certificates  submitted  to  the  Commission  as  aforesaid,  and 
marked  "  No.  1  N.  C."  by  said  Commission,  and  herewith  returned,  are  the  votes 
provided  for  by  the  Constitution  of  the  United  States,  and  that  the  same  are  law 
fully  to  be  counted  as  therein  certified,  namely :  Seven  votes  for  Rutherford  B. 
Hayes,  of  tho  State  of  Ohio,  for  President,  and  seven  votes  for  William  A.  Wheeler, 
of  the  State  of  New  York,  for  Vice-Preaideut. 

The  Commission  has  by  a  majority  of  votes  also  decided,  and  does  hereby  decide 
and  report,  that  the  seven  persons  first  above  named  were  duly  appointed  electors 
in  and  by  the  State  of  South  Carolina. 

Tho  brief  ground  of  this  decision  is  that  it  appears,  upon  such  evidence  as  by  the 
Constitution  and  tho  law  named  in  said  act  of  Congress  is  competent  and  pertinent 
to  tho  consideration  of  the  subject,  that  the  before-mentioned  electors  appear  to 
have  been  lawfully  appointed  such  electors  of  President  and  Vice-President  of  tho 
United  States  for  the  term  beginning  March  4,  A.  D.  1877,  of  the  State  of  South 
Carolina,  and  that  they  voted  as  such  at  tho  time  and  in  the  manner  provided  for 
by  the  Constitution  ot  the  United  States  and  the  law. 

And  the  Commission,  as  further  grounds  for  their  decision,  are  of  opinion  that 
tho  failure  of  the  Legislature  to  provide  a  system  for  the  registration 'of  persons 
entitled  to  vote,  does  not  render  nugatory  all  elections  held  under  laws  otherwise 
sufficient,  though  it  may  be  the  duty  of  the  Legislature  to  enact  such  a  law.  If  it 
were  otherwise  all  government  in  that  State  is  a  usurpation,  its  officers  without 
authority,  and  tho  social  compact  i-i  that  State  is  at  an  end.  That  this  Commis 
sion  must  take  notice  that  there  is  a  government  in  South  Carolina,  republican 
in  form,  since  its  constitution  provides  for  such  a  government,  and  it  is,  and  was, 
on  the  day  of  appointing  electors,  so  recognized  by  the  Executive  and  bv  both 
branches  of  the  legislative  departments  of  the  Government  of  tho  United  States. 


tioii  at  the  "request  of  the  proper  authorities  of  tho  State. 

But  we  are  also  of  opinion  that  from  the  papers  before  us,  it  appears  that  tho 
governor  and  secretary  of  state  having  certified  under  the  seal  of  the  State  that  the 
electors  whose  votes  wo  have  decided  to  bo  the  lawful  electoral  votes  of  the  State 
were  duly  appointed  electors,  which  certificate,  both  by  presumption  of  law  and  by 
the  certificate  of  tho  rival  claimants  of  the  electoral  office,  was  based  upon  tho 
action  of  the  State  canvassers,  there  exists  no  power  in  this  Commission,  as  there 
exists  none  in  tho  two  Houses  of  Congress  in  counting  the  electoral  vote,  to  inquire 
into  the  circumstances  under  which  the  primary  vote  for  electors  was  given.  The 
power  of  the  Congress  of  the  United  States  in  its  legislative  capacity  to  inquire 
into  the  matters  alleged,  and  to  act  upon  the  information  so  obtained,  is  a  very  dif 
ferent  one  from  its  power  in  the  matterof  counting  the  electoral  votes.  The  votes 
to  be  counted  are  those  presented  by  the  States,  and  when  ascertained  and  pre 
sented  by  the  proper  authorities  of  tho  States  they  must  bo  counted. 

The  Commission  has  also  decided,  and  does  hereby  decide,  by  a  majority  of  votes, 
and  report,  that  as  a  consequence  of  the  foregoing,  and  upon  iho  grounds  before 
stated,  that  the  paper  purporting  to  bo  a  certificate  of  the  electoral  vote  of  said 
State  of  South  Carolina,  signed  bv  Theodore  R.  Barker,  S.  McGowan,  John  W. 
Harrington,  John  Isaac  Ingram,  "William  Wallace,  John  I?.  Erwin,  and-  Robert 
Aldrich,  marked  "No.  2  N.  C."  by  the  Commission,  and  herewith  returned,  is  not 
tho  certificate  of  tho  votes  provided  for  by  the  Constitution  of  the  United  States, 
and  that  they  ought  not  to  bo  counted  a*  such. 

Done  at  Washington,  D.  C.,  the  day  and  year  first  above  written. 

The  question  being  on  the  adoption  of  the  order  and  report  of  the 
Commission, 
It  was  decided  in  the  affirmative, 

YEAS 8 

NAYS 7 

Those  who  voted  in  the  affirmative  are  :  Messrs.  Bradley,  Edmunds, 
Frelinghuysen,  Garfield,  Hoar,  Miller,  Morton,  and  Strong. 

Those  who  voted  in  the  negative  are :  Messrs.  Abbott,  Bayard, 
Clifford,  Field,  Hunton,  Kernan,  and  Payne. 

So  the  order  and  report  was  agreed  to  ; 

And  said  decision  and  report  was  thereupon  signed  by  the  mem 
bers  agreeing  therein,  as  follows  : 

SAM.  P.  MILLER. 

W.  STRONG. 

JOSEPH  P.  BRADLEY. 

GEO.  F.  EDMUNDS. 

O.  P.  MORTON. 

FRED'K  T.  FKELINGHUYSEN. 

JAMES  A.  GARFIELD. 

GEORGE  F.  HOAR. 

Mr.  Commissioner  MILLER  offered  the  following : 

Ordered,  That  the  President  of  tho  Commission  transmit  a  letter  to  the  Presi 
dent  of  tho  Senate,  in  the  following  words : 

"WASHINGTON,  D.  C.,  February  27,  A.  D.,  1877. 

SIR  :  I  am  directed  by  the  Electoral  Commission  to  inform  the  Senate  that  it  has 
considered  and  decided  upon  the  matters  submitted  to  it,  under  the  act  of  Congress 
concerning  tho  same,  touching  the  electoral  votes  from  the  State  of  South  Carolina, 


and  herewith,  by  direction  of  said  Commission,  I  transmit  to  you  the  said  decision 
in  writing,  signed  by  the  members  agreeing  therein,  to  bo  read  at  tho  meotin"  of 
the  two  Houses,  according  to  said  act.    All"  the  certificates  and  papers  sent  to'the 
Commission  by  the  President  of  the  Senate  are  herewith  returned. 
Hon.  THOMAS  W.  FERKY, 

President  of  the  Senate. 

The  question  being  on  the  adoption  of  the  order, 

It  was  determined  in  the  affirmative  ; 

And  tho  letter  was  accordingly  signed,  as  follows: 

NATHAN  CLIFFORD, 
President  of  the  Commission. 
Mr.  Commissioner  MILLEE  offered  the  following : 

Ordered,  That  the  President  of  the  Commission  transmit  a  letter  to  the  Sneaker 
of  the  House  of  Representatives,  in  the  following  words : 

WASHINGTON,  D.  C.,  February  27,  A.  D.  1877. 

Sin:  I  am  directed  by  the  Electoral  Commission  to  inform  tho  House  of  Repre 
sentatives  that  it  has  considered  and  decided  upon  the  matters  submitted  to  it, 
under  the  act  of  Congress  concerning  the  same,  touching  tho  electoral  votes  from 
tho  State  of  South  Carolina,  and  has  transmitted  said  decision  to  the  President  of 
tho  Senate,  to  be  read  at  tho  meeting  of  the  two  Houses,  according  to  said  act. 
Hon.  SAMUEL  J.  RANDALL, 

Speaker  of  the  House  of  Representatives. 

Tiie  question  being  on  the  adoption  of  the  order, 

It  was  decided  in  the  affimative ; 

And  tho  letter  was  accordingly  signed,  as  follows : 

NATHAN  CLIFFORD, 
President  of  the  Commission. 

Mr.  Commissioner  MORTON  offered  the  following  resolution : 

Resolved,  That  tho  thanks  of  this  Commission  are  duo  to  Commissioner  CLIFFORD 
for  the  ability,  impartiality,  and  urbanity  with  which  he  has  presided  over  its  do- 
liberations. 

And  the  resolution  was  unanimously  adopted. 
Mr.  Commissioner  STRONG  offered  the  following : 


After  considering  the  amendments  proposed  to  the  above  and  their 
rejection,  the  order,  as  offered,  was  adopted,  as  follows: 

YEAS 10 

NAYS -«_ 4 

Those  who  voted  in  the  affirmative  a.re :  Messrs.  Bayard,  Bradley, 
Clifford,  Edmunds,  Frelinghuyseu,  Garfield,  Hoar,  Miller,  Morton,  and. 
Strong. 

Those  who  voted  in  the  negative  are :  Messrs.  Abbott,  Field,  Hun 
ton,  and  Payne. 

Mr.  Commissioner  EDMUNDS  offered  the  following,  which  was 
adopted : 

Ordered,  That  the  President,  Commissioners  FRELINGHUYSEN  and  PAYNE,  ho  a 
committee  to  consider  a  proper  allowance  as  compensation  to  the  employ6s,  and 
report  the  same  at  the  next  meeting  of  the  Commission. 

On  motion  of  Mr.  Commissioner  MILLER, 

Ordered,  That  the  injunction  of  secrecy  imposed  on  the  acts  and  proceedings  ot 
tho  Commission  bo  removed. 

And,  on  motion  of  Mr.  Commissioner  GARFIELD,  (at  six  o'clock  and 
fifty-four  minutes  p.  m.,)  the  Commission  adjourned  until  Friday  next 
at  eleven  o'clock  a.  m.,  unless  sooner  assembled  by  a  call  of  the  Presi 
dent. 


WASHINGTON,  D.  C.,  March-  2,  1877. 

Tho  Commission  met  at  eleven  o'clock  a.  m.,  pursuant  to  adjourn 
ment. 

Present :  the  President,  and  Commissioners  Miller,  Strong,  Field, 
Bradley,  Morton,  Freliughuysen,  Kernan,  Payne,  and  Abbott. 

The  Journal  of  Tuesday  last  was  read  and  approved. 

Mr.  Commissioner  FRELINGHUYSEN,  from  the  committee  ap 
pointed  to  consider  the  allowances  to  be  made  to  the  officers  and  per 
sons  who  had  been  employed  in  the  service  of  the  Commission,  sub 
mitted  a  report ;  which  was  read,  considered,  and  agreed  to. 

On  motion  of  Mr.  Commissioner  MORTON,  it  was 

Ordered,  That  tho  time  heretofore  allowed  for  the  filing  of  opinions  by  members 
of  the  Commission  bo  extended  until  the  close  of  tho  month  of  March. 

On  motion  of  Mr.  Commissioner  MILLER,  it  was 

Ordered,  That  450  copies  of  tho  Record,  after  all  the  proceedings,  including  the 
arguments  of  the  Commissioners,  shall  have  been  published,  shall  bo  bound,  with 
an  index,  under  the  care  of  the  Secretary  and  his  assistants,  and  distributed  equally 
among  the  members  of  the  Commission. 

At  the  suggestion  of  the  PRESIDENT,  it  was 

Ordered,  That  the  minutes  of  to-day's  proceedings,  after  they  shall  have  boon 
prepared  by  tho  Secretary,  be  read  by  the  President,  and  if  approved  by  him,  be 
considered'as  approved  by  tho  Commission. 

On  motion  of  Mr.  Commissioner  PAYNE,  (at  eleven  o'clock  and. 
thirty  minutes  a.  in.,)  the  Commission  adjourned  sinedie. 


CERTIFICATES   AND   OBJECTIONS 


REFERRED   TO 


THE    ELECTORAL    COMMISSION 


BY  THE 


JOINT  CONVENTION  OF  THE  TWO  HOUSES  IN  THE  CASES  OF  FLORIDA, 
LOUISIANA,   OREGON,   AND   SOUTH  CAROLINA. 


FLORIDA. 

CERTIFICATE  No.  l. 

EXECUTIVE  OFFICE, 
Tallahassee,  Florida,  December  C,  1876. 
STATE  OF  FLORIDA: 

Pursuant  to  laws  of  the  United  States,  I,  Marcellus  L.  Stearns,  governor  of  Flor 
ida,  do  hereby  certify  that  Frederick  C.  Humphreys,  Charles  H.  Pearce,  William 
H.  Holden,  and  Thomas  W.  Long  have  been  chosen  electors  of  President  and  Vice- 
President  of  the  United  States,  on  the  part  of  this  State,  agreeably  to  the  provisions 
of  the  laws  of  the  said  State  and  in  conformity  to  the  Constitution  of  the  United 
States  of  America,  for  the  purpose  of  giving  in  "their  votes  for  President  and  Vice- 
President  of  the  United  States,  for  the  term  prescribed  by  the  Constitution  of  said 
United  States,  to  begin  on  the  fourth  day  of  March,  in  the  year  of  our  Lord  one 
thousand  eight  hundred  and  seventy-seven. 

Given  under  my  hand  and  the  seal  of  the  State,  at  Tallahassee,  this  sixth  day  of 
December,  A.  D.  one  thousand  eight  hundred  and  seventy-six,  and  in  the  one  hun 
dredth  year  of  the  Independence  of  the  United  States  of  America. 

[SEAL  ]  M.  L.  STEARNS,  Governor. 

By  the  governor. 

Attest :  SAUL.  B.  McLIN, 

Secretary  of  State. 

STATE  OF  FLORIDA: 

We,  whose  names  are  mentioned  in  the  annexed  certificate  of  appointment,  hav 
ing,  pursuant  to  the  Constitution  arid  laws  of  the  United  States  of  America,  and  in 
the  manner  directed  by  the  laws  of  the  State  of  Florida,  been  appointed  electors  of 
President  and  Vice-President  of  the  United  States  of  America,  and  having  assem 
bled  at  the  State  capitol  in  Tallahassee,  being  the  seat  of  government  of  said  State 
and  the  place  designated  by  law  for  that  purpose,  on  the  first  Wednesday  in  De 
cember,  A.  D.  one  thousand  eight  hundred  and  seventy-six,  being  the  sixth  day  of 
said  month,  and  in  the  one  hundredth  year  of  the  Independence  of  the  United 
States  of  America,  have  voted,  by  ballot,  for  President  and  Vice-President,  having 
named  in  our  ballots  the  person  voted  for  as  President  and  in  distinct  ballots  the 
person  voted  for  as  Vice-President,  and  in  the  same  ballots  there  were  four  (4) 
votes  for  President  of  the  United  States  of  America,  all  of  which  four  (4)  votes 
were  cast  for  Rutherford  B.  Hayes,  of  Ohio. 

In  testimony  whereof  we  have  hereunto  set  our  hands  on  the  first  Wednesday, 
being  the  sixth  day,  of  December,  in  the  year  of  our  Lord  one  thousand  eight 
hundred  and  seventy -six. 

F.  C.  HUMPHREYS. 

C.  H.  PEARCE. 

W.  H.  HOLDEN. 

THOS.  W.  LONG. 

STATE  OF  FLORIDA: 

We,  whose  names  are  mentioned  in  the  annexed  certificate  of  appointment,  hav 
ing,  pursuant  to  the  Constitution  and  laws  of  the  United  States  of  America,  and 
in  the  manner  directed  by  the  laws  of  the  State  of  Florida,  been  appointed  electors 
of  President  and  Vice-President  of  the  United  States  of  America,  and  having  as 
sembled  at  the  State  eapitol  in  Tallahassee,  in  the  State  aforesaid,  being  thereat 
of  government  of  said  State,  and  the  place  designated  by  law  for  that  purpose,  on 
the  first  Wednesday  in  December,  A.  D.  one  thousand  eight  hundred  and  seventy- 
six,  being  the  sixth  day  of  said  month,  and  in  the  one  hundredth  year  of  the  Inde 
pendence  of  the  United  States  of  America,  have  voted,  by  ballot,  for  President 
and  Vice-President,  having  named  in  our  ballots  the  person  voted  for  as  President, 
and  in  distinct  ballots  the  person  voted  for  as  Vice-President,  and  in  the  same  bal 
lots  there  were  four<4)  votes  cast  for  Vice-President  of  the  United  States  of  Amer 
ica,  all  of  which  four  (4)  votes  were  cast  for  William  A.  Wheeler,  of  New  York. 

In  testimony  whereof  we  have  hereunto  set  our  hands  on  the  first  Wednesday, 
being  the  six'th  day,  of  December,  in  the  year  of  our  Lord  one  thousand  eight 
hundred  and  seventy-six. 

F.  C.  HUMPHREYS. 

C.  H.  PEARCE. 

W.  H.  HOLDENT. 

THOS.  W.  LOXG. 

CERTIFICATE  No.  2. 

STATE  OF  FLORIDA,  ATTORNEY-GENERAL'S  OFFICE, 

Tallahassee, ,  18—. 

List  of  electors  of  President  cmA  Vice-President  of  the.  United  States  for  the  State  of 

Florida. 

1,  AVilliam  Archer  Cocko,  attorney-general  of  the  State  of  Florida,  and  as  such 
one  of  the  members  of  the  board  of  State  canvassers  of  the  State  of  Florida,  do 
certify  that,  by  the  authentic  returns  of  the  votes  cast  in  the  several  counties  of 
the  State  of  Florida,  at  the  general  election  held  on  Tuesday,  November  7,  1876, 


said  returns  being  on  file  in  the  office  of  the  secretary  of  state,  and  seen  and  con 
sidered  by  me,  as  such  member  of  the  board  of  State  canvassers  of  the  said  State 
of  Florida,  it  appears  and  is  shown  that  Wilkinson  Call,  James  E.  Yonge,  Robert 
B.  Hilton,  and  Robert  Bullock  were  chosen  the  four  electors  of  President  and  Vice- 
President  of  the  United  States  ;  and  I  do  further  certify  that,  under  the  act  of  the 
Legislature  of  the  State  of  Florida  establishing  said  board  of  State  canvassers,  no 
provision  has  been  enacted,  nor  is  any  such  provision  contained  in  the  statute  law 
of  this  State,  whereby  the  result  shown  and  appearing  by  said  returns  to  said  board 
of  State  canvassers  can  be  certified  to  the  executive  of  the  said  State. 

Witness  my  hand  and  seal  this  6th  day  of  December,  1876,  at  the  capitol  in  Tal 
lahassee. 

ISEAL  j  WM.  ARCHER  COCKE, 

Attorney- General,  State  of  Florida. 

STATE  OF  FLORIDA,  County  of  Leon : 

I,  Robert  Bullock,  and  I,  Wilkinson  Call,  and  I,  James  E.  Yonge,  and  I,  Robei-t 
B.  Hilton,  do  solemnly  swear  that  I  will  support,  protect,  and  defend  the  Constitu 
tion  and  Government  of  the  United  States  and  of  the  State  of  Florida  against  all 
enemies,  domestic  or  foreign,  and  that  I  will  bear  true  faith,  loyalty,  and  allegiance 
to  the  same;  and  that  I  am  entitled  to  hold  oltico  under  the' constitution  of  this 
State ;  that  I  will  well  and  faithfully  perform  all  the  duties  of  the  office  of  elector 
of  President  and  Vice-Presideut  of  the  United  States,  on  which  I  am  Shout  to  enter. 

WILKINSON  CALL. 
J.  E.  YONGE. 
ROBERT  BULLOCK. 
ROBERT  B.  HILTON. 

Sworn  to  and  subscribed  before  me  this  sixth  day  of  December,  A.  D.  1876. 
[SEAL.]  FRED.  T.  MYERS, 

Clerk  Supreme  Court  of  the  State  of  Florida. 

STATE  OF  FLORIDA: 

We,  the  undersigned,  electors  of  President  and  Vice-PreSident  of  the  United 
States  of  America  for  the  next  ensuing  regular  term  of  the  respective  office  thereof, 
being  electors  duly  and  legally  appointed  by  and  for  the  State  of  Florida,  as  ap 
pears  by  the  annexed  list  of  electors,  made,  certified,  and  delivered  to  us  by  William 
Archer  Cocke,  attorney-general  of  the  State  of  Florida,  and,  as  such,  one  of  the 
members  of  the  State  board  of  canvassers  of  said  State,  having  met  and  convened 
in  the  city  of  Tallahassee,  at  the  capitol,  in  pursuance  of  the  direction  of  the  Legis 
lature  of  the  State  of  Florida,  at  twelve  o'clock  m.,  on  the  first  Wednesday,  the  sixth 
day,  of  December,  in  the  year  of  our  Lord  one  thousand  eight  hundred  and  seventy- 
six,  the  same  being  the  seat  of  government  of  the  State  of  Florida,  do  hereby  cer 
tify  that,  being  so  assembled  and  duly  organized,  we  proceeded  to  vote  by  ballot, 
and  balloted  first  for  such  President,  and  then  for  such  Vice-President,  by  distinct 
ballots. 

And  we  further  certify  that  we,  and  each  of  us,  are  duly  qualified,  under  the  Con 
stitution  and  laws  of  the  United  States,  to  hold  the  said  office  of  elector  of  Presi 
dent  and  Vice-President,  and  that  we  have  each  of  us  taken  the  oath  of  office  pre 
scribed  by  the  laws  of  the  State  of  Florida  for  electors  of  President  and  Vice-Presi 
dent,  and  that  we  have  complied  with  all  and  singular  Ihe  other  requirements  of 
the  laws  of  this  State,  prescribing,  declaring,  and  establishing  the  duties  of  such 
electors. 

And  we  further  certify  that  the  following  are  two  distinct  lists;  one  of  the  votes 
for  President  and  the  other  of  the  votes  for  Vice-President : 

List  of  all  persons  voted  for  as  President,  with  the  number  of  votes  for  each  : 

For  President  of  the  United  States,  Samuel  J.  Tilden,  of  the  State  of  New  York. 
Whole  number  of  votes  four,  (4.) 

Lis';  of  all  persons  voted  for  as  Vice-President,  with  the  number  of  votes  for  each  : 

For  Vice-President  of  the  United  States,  Thomas  A.  Hcndricks,  of  the  State  of 
Indiana.  Whole  number  of  votes,  four,  (4.) 

In  witness  whereof  we  have  hereunto  set  our  hands.  Done  at  the  capitol  in  the 
city  of  Tallahassee  and  State  of  Florida,  the  s'ltL  day  of  December,  in  the  year  of 
our  Lord  one  thousand  eight  hundred  and  seventy -six,  and  of  the  Independence  of 
the  United  States  of  America  the  one  hundred  arid  iirst,  at  the  seat  of  government 
of  the  said  State  of  Florida. 

WILKINSON  CA.LL,  Elector. 
ROBERT  BULLOCK,  Elector. 
ROBERT  B.  HILTON,  Elector. 
J.  E.  YONGE,  Elector. 

And  wo  further  certify  that,  having  met  and  convened  as  such  electors,  at  the 
time  and  place  designated  by  law,  we  did  notify  the  governor  of  the  State  of  Florida, 
the  executive  of  said  State,  of  our  appointment  as  such  electors,  and  did  apply  to 
and  demand  of  him  to  cause  to  be  delivered  to  us  three  lists  of  the  names  of  the 
electors  of  the  said  State,  according  to  law,  and  the  said  governor  did  refuse  to  de 
liver  the  same  to  us. 

WILKINSON  CALL,  Elector. 

ROBERT  BULLOCK,  Elector. 

ROBERT  B.  HILTON,  Elector. 

J.  E.  YONGE,  Elector. 


288 


ELECTORAL  COMMISSION. 


CERTIFICATE  No.  3. 

EXECUTIVE  OFFICE,  Tallahassee,  Fla. 

Whereas,  in  pursuance  of  an  act  of  the  Legislature  of  this  State  entitled  "An  act 
to  procure  a  legal  canvass  of  the  electoral  vote  of  the  State  of  Florida  as  cast  at 
the  election  held  on  the  7th  day  of  November,  A.  D.  1876, "approved  January  nth, 
1877,  a  canvass  of  the  returns  of  said  votes  on  tile  in  the  office  of  UHJ  secretary  of 
state  was,  on  the  19th  day  of  January,  A.  D.  1877,  niado,  according  to  the  laws  of 
the  State  and  the  interpretation  thereof  by  the  supreme  court,  and  llobort  Bullock, 
Hubert  B.  Hilton,  Wilkinson  Call,  and  James  E.  Yonge  were  duly  determined, 
declared,  and  certified  to  have  been  elected  electors  of  President  and  Vico-Prosi- 
dent  of  the  United  States  for  the  State  of  Florida  at  said  election  held  on  the  1th 
day  of  November,  A.  D.  167(i,  as  shown  by  said  returns  ;  and  whereas,  in  a  proceed 
ing  on  Uie  part  of  the  State  of  Florida,  by  information  in  the  nature  of  a  quo  war- 
ranto,  wherein  the  said  Robert  Bullock,  Robert  B.  Hilton,  Wilkinson  Call,  and 
James  E.  Yougo  were  rolators,  and  Charles  H.  Pearce,  Frederick  C.  Humphries, 
William  11.  llolden,  and  Thomas  W.  Long  were  respondents,  tho  circuit  court  of 
this  State  for  tho  second  judicial  circuit,  after  full  consideration  of  the  law  and 
tho  proofs  produced  on  behalf  of  the  parties  respectively,  by  its  judg.neut  deter 
mined  that  said  relatora  were,  at  said  election,  in  fact  and  law,  elected  such  electors 
as  against  the  said  respondents  stud  all  other  persons  : 

Now,  therefore,  and  also  in  pursuance  of  an  act  of  tho  Legislature  entitled  "An 
act  to  declare  and  establish  the  appointment  by  tho  State  of  Florida  of  electors  of 
President  and  Vice-President  of  the  United  States,"  approved  January  2u,  A.  D. 
1877,  I,  George  F.  Drew,  governor  of  the  State  of  Florida,  do  hereby  make  and 
certify  the  following  list  of  the  names  of  the  said  electors  chosen,  appointed,  and 
declared  as  aforesaid,  to  wit:  Kobert  Bullock,  Robert  B.  Hilton,  Wilkinson  Call, 
James  E.  Yonge. 

lu  testimony  whereof  I  have  hereunto  set  my  hand  nnd  caused  tho  great  seal  of 
the  State  to  bo  affixed,  at  the  capitol,  at  Tallahassee,  this  the  2Gth  day  of  January, 
A.  D.  1877. 

[SEAL.]  GEO.  F.  DREW,  Governor. 

Attest :  W.  D.  BLOXHAM,  Sea-clary  of  State.. 

STATE  OF  FLORIDA, 

Leon  County,  ss : 

The  executive  of  the  State  of  Florida  having  caused  three  lists  of  tho  electors  of 
tins  State  for  President  and  Vice-President  of  tho  United  States  to  be  made  and 
certified  and  delivered  to  us — onoof  which  said  lists  is  hereto  annexed — from  which 
lists  it  appears  that  we,  the  undersigned,  were  duly  appointed  on  the  seventh  day 
of  November,  A_.  D.  eighteen  hundred  and  seventy-six,  electors  of  President  anil 
Vice-President  for  and'in  behalf  of  tho  said  State  of  Florida  : 

Now,  therefore,  bo  it  remembered,  and  we  do  hereby  certify  and  mako  known, 
that  we,  the  undersigned,  Robert  Bullock,  Robert  B.  Hilton, 'Wilkinson  Call,  and 
James  E.  Yongo,  electors  as  aforesaid,  did,  on  the  first  Wednesday  of  December, 
A.D.  eighteen  hundred  and  seventy-six,  being  tho  sixth  day  of  said  December,  at 
12  o'clock  m.,  meet  as  such  electors,  in  tho  capitol,  at  Tallahassee,  to  give  our  votes 
as  such  electors  for  President  and  Vice- President  of  tho  United  States;  and  did 
then  and  there  give  and  cast  our  votes,  as  such  electors,  by  ballot,  for  President  of 
tho  United  States  ;  and  did  then  and  there  give  and  cast  our  votes,  as  such  elect 
ors,  by  distinct  ballots,  for  Vice-Presidentof  tho  United  States  ;  and  tho  said  bal 
lots  having  been  opened,  inspected,  and  counted,  it  did  there  and  then  appear  that 
on  four  of  said  ballots  was  tho  name  of  Samuel  J.  Til  den,  of  tho  State,  of  New 
York,  for  President  of  the  United  States,  and  that  upon  four  other  of  said  ballots 
was  the  name  of  Thomas  A.  Heudricks,  of  the.  State  of  Indiana,  for  Vice-President 
of  the  United  States.  We,  the  undersigned,  do  therefore  and  lioroby  certify  and 
make  known  as  follows  : 

1.  That,  at  the  said  election  and  voting  by  us  as  aforesaid,  tho  number  of  elect 
oral  votes  cast  for  Samuel  J.  Tildon,  of  tho  State  of  New  York,  for  President  of  tho 
United  States,  was  four  votes. 

2  That,  at  the  said  election  and  voting  by  us  as  aforesaid,  the  number  of  electoral 
votes  cast  for  Thomas  A.  Houdricks,  of  the  State  of  Indiana,  for  Vice-Presidont  of 
tho  United  States,  was  four  votes. 

Done  at  Tallahassee,  on  this  the  26th  day  of  January,  A.  D.  1877. 

In  testimony  whereof  we  have  hereto  sot  our  hands  and  affixed  our  seals. 

WILKINSON  CALL,  [SEAL,] 
JAMES  E.  YONGE,  [SEAL. 
ROBT.  BULLOCK,  |SEAL.] 

ROBERT  B.  HILTON,     [SEAL.] 
Electors  of  President  tnd  Vice-president  of  the  United  States. 

An  act  to  procure  a  legal  canvass  of  tho  electoral  voto  of  the  State  of  Florida  as 
cast  at  tho  election  held  on  the  seventh  day  of  November,  A.  D.  1'876. 

The  people  of  the  State  of  Florida,  represented  in  senate  and  assembly,  do  enact 
as  follows : 

SECTION  1.  Thosecretary  of  state,  attorney-general,  and  the  comptroller  of  pub 
lic  accounts,  or  any  two  of  them,  together  with  any  other  member  of  the  cabinet 
who  may  bo  designated  by  them,  shall  meet  forthwith  at  theotiice  of  tho  secretary 
of  state,  pursuant  to  notice  to  be  given  by  tho  secretary  of  state,  and  form  a  board 
of  State  canvassers,  and  proceed  to  canvass  the  returns  of  the  election  of  electors 
of  President  and  Vice-President,  held  on  the  7th  day  of  November,  A.  D.  1876,  and 
determine  and  declare  who  wore  elected  and  appointed  electors  at  said  election,  as 
shown  by  such  returns  on  file  in  the  office  of  the  secretary  of  state. 

SECTION  2.  The  said  board  of  State  canvassers  shall  canvass  the  said  returns  ac- 


said  law.  prescribed  in  and  by  the  supreme  court  of  this  State  in  tho  case  of  The 
State  of  Florida  on  tho  relation  of  Bloxham  vn.  Jonathan  C.  Gibbs,  secretary  of  state, 
c t  a!,,  decided  in  January,  A.  D.  1871,  and  in  tho  case  of  The  State  of  Florida  on  tho 
relation  of  George  F.  Drewrs.  Samuel  B.  McLin,  secretary  of  state.  William  Archer 
Cocko,  attorney-general,  and  Clayton  A.  Cowgill,  comptroller  of  public  accounts  of 
the  State  of  Florida,  decided  December  23,  A^D.  1676. 

SECTION  3.  Tho  said  board  shall  make  and  sign  a  certificate,  containing  in  words 
written  at  full  length,  the  whole  number  of  votes  given  at  said  election  for  each 
office  of  elector,  the  number  of  votes  given  for  each  person  for  such  oflice,  and 
therein  declare  the  result,  which  certificate  shall  be  recorded  in  the  office  of  tho 
secretory  of  state,  in  a  book  to  be  kept  for  that  purpose,  and  the  secretary  of  state 
shall  cause  a  certified  copy  of  such  certificate  to  bo  published  once  in  one  or  more 
newspapers  printed  at  the  seat  of  government,  and  shall  transmit  two  certified 
copies  of  such  certificate,  one  to  the  presiding  officer  of  the  senate  and  one  to  the 
presiding  officer  of  the  assembly  of  the  State  of  Florida. 

SECTION  4.  This  act  shall  take  effect  from  aud  after  its  passage. 

Approved  January  17,  1877. 


, „„„  jiy  hand  and  affixed  the  gr 

the  State. 

Done  at  Tallahassee,  the  capital,  this  20th  day  of  January,  A.  D.  1877. 
[SEAL.]  .    W.  D.  BLOXHAM, 

Secretary  of  State. 


[Official.] 

STATE  OF  FLORIDA. 
Certificate  of  State-  canvassers  of  the  election  lield  November  7,  1876. 

Wo,  W.  D.  Bloxham,  secretary  of  state  of  the  State  of  Florida,  Columbus  Drew 
comptroller  of  public  accounts  of  said  State,  and  Walter  Gwynn,  treasurer  of  said 
State,  cous'.ituting  ;ho  board  of  canvassers  of  the  State,  of  Florida,  do  hereby  cer- 
tii'y  that  wo  met  at  the  office  of  tho  secretary  of  state,  at  the  capital,  in  tho  city  of 
Tallahassee,  on  tho  19th  day  of  January,  1877,  and  proceeded  to  canvass  the  returns 
of  a  general  election  held  in  said  State  on  tho  7th  day  of  November,  A.  D.  1876,  for 
presidential  electors,  in  accordance  with  the  provisions  of  an  act  entitled  "An  act 
to  procure  a  legal  canvass  of  tho  electoral  voto  of  the  State  of  Florida,  as  east  at 
the  election  held  on  the 7th  day  of  November,  A.  D.  1870."  From  said  canvass  wo 
arrived  at  the  following  result,  which  wo  do  hereby  certify  : 

The  whole  number  of  votes  cast  for  presidential  electors  in  the  county  of  Alachua 
was  as  follows,  viz : 

TILDEN  ELECTORS. 

Wilkinson  Call  received  twelve  hundred  and  sixty-seven,  (1,267.) 
James  E  Yonge  received  twelve  hundred  and  sixty-seven,  (1,267.) 
Robert  B.  Hilton  received  twelve  hundred  and  sixty-seven,  (1,267.) 
Robert  Bullock  received  twelve  hundred  and  sixty-seven,  (1,267.) 

HAYES  ELECTORS. 

F.  C.  Humphries  received  nineteen  hundred  and  eighty-four,  (1,984.) 

C.  H.  Pearce  received  nineteen  hundred  and  eighty-four,  (1.984.) 

W.  II.  Iloldeu  received  nineteen  hundred  and  eighty-four,  (l,i)84.) 

T.  W.  Long  received  nineteen  hundred  and  eighty-four,  (1,984.) 

Tho  whole  number  of  votes  cast  for  presidential  electors  in  tho  county  of  Baker 
was  as  follows,  viz : 

Wilkinson  Call  received  two  hundred  and  thirty-eight,  (238.) 

James  E.  Yongo  received  two  hundred  and  thirty-eight,  (238.) 

Robert  B.  Hilton  received  two  hundred  and  thirty-eight,  (238.) 

Robert  Btfllock  received  t\vo  hundred  and  thirty-eight,  (2:58.) 

F.  C.  Humphries  received  one  hundred  and  forty-three,  (143.) 

C.  H.  Pearce  received  0110  hundred  and  forty-three,  (143.) 

W.  II.  Holden  received  one  hundred  and  forty-three,  (143.) 

T.  W.  Long  received  one  hundred  and  forty-throe,  (143.) 

The  whole  number  of  votes  cast  for  presidential  electors  in  the  county  of  Bre- 
vard  was  as  follows,  viz : 

Wilkinson  Call  received  one  hundred  and  eleven,  (111.) 

James  E.  Yongo  received  one  hundred  and  eleven,  (111.) 

Robert  B.  Hilton  received  one  hundred  and  eleven,  (111.) 

Robert  Bullock  received  one  hundred  and  eleven,  (111.) 

F.  C.  Humphries  received  fifty-eight,  (58.) 

C  H.  Poarce  received  fifty-eight,  (58.) 

W.  H.  Holdon  received  fifty-eight,  (58.) 

T.  W.  Long  received  fifty-eight,  (58.) 

Tho  whole  number  of  votes  cast  for  presidential  electors  in  the  county  of  Brad 
ford  was  as  follows,  viz : 

Wilkinson  Call  received  seven  hundred  and  throe,  (703.) 

James  E.  Yongo  received  seven  hundred  and  three,  (703.) 

Robert  B.  Hilton  received  seven  hundred  and  three,  (703.) 

Robert  Bullock  received  seven  hundred  and  three,  (703.) 

F.  C.  Humphries  received  two  hundred  and  two,  (202.) 

C  H.  Pearce  received  two  hundred  aud  two,  (\!02  ) 

W.  H.  Holden  received  two  hundred  and  two,  (202.) 

T.  W.  Long  received  two  hundred  and  two,  (202.) 

The  whole  number  of  votes  cast  for  presidential  electors  in  tho  county  of  Calhoun 
was  as  follows,  viz  : 

Wilkinson  Call  received  two  hundred  and  fifteen,  (215.) 

James  E.  Yongo  received  two  hundred  and  fifteen,  (215.) 

Robert  B.  Hilton  received  two  hundred  and  fifteen,  (215.) 

Robert  Bullock  received  two  hundred  and  fifteen,  (215.) 

F.  C.  Humphries  received  sixty-three,  (03.) 

C.  H.  Pearce  received  sixty-two,  (62.) 

W.  H.  Holdon  received  sixty-three,  (63.) 

T.  W.  Long  received  sixty-three,  (63.) 

C.  H.  Humphries  received  one,  (1.) 

Tho  whole  number  of  votes  cast  for  presidential  electors  in  the  county  of  Colum 
bia  was  as  follows,  viz  : 

Wilkinson  Call  received  nine  hundred  and  three,  (303.) 

James  E.  Yongo  received  nino  hundred  and  three,  (903.) 

Robert  B.  Hilton  received  nine  hundred  and  three,  (903.) 

Robert  Bullock  received  nine  hundred  and  three,  (903.) 

F.  C.  Humphries  received  seven  hundred  and  eighteen,  (718.) 

C.  H.  Prjrce  received  seven  hundred  and  eighteen,  (718.) 

"W.  II.  Holden  received  seven  hundred  and  eighteen,  (718.) 

T.  W.  Long  received  seven  hundred  and  eighteen,  (718.) 

The  whole  iiumber  of  votes  cast  for  presidential  electors  in  the  county  of  Clay 
was  as  follows,  viz : 

W'ilkinson  Call  received  two  hundred  and  eighty-six,  (286.) 

James  E.  Yongo  received  two  hundred  and  eighty-seven,  (287.) 

Robert  B.  Hilton  received  two  hundred  and  eighty-seven,  (287.) 

Robert  Bullock  received  two  hundred  and  eighty-seven,  (287.) 

F.  C.  Humphries  received  one  hundred  and  twenty-two,  (122.) 

C.  H.  Pearco  received  one  hundred  and  twenty -one,  (121.) 

W.  H.  Holden  received  ono  hundred  and  twenty-two,  (122.) 

T.  W.  Long  received  one  hundred  and  twenty-two,  (122.) 

Tho  whole  number  of  votes  cast  for  presidential  electors  in  the  county  of  Duval 
was  as  follows,  viz  : 

Wilkinson  Call  received  fourteen  hundred  and  thirty-six,  (1,436.) 

James  E.  Yongo  received  fourteen  hundred  and  thirty-seven,  (1,437.) 

Robert  B.  Hilton  received  fourteen  hundred  and  thirty-seven,  (1,437.) 

Robert  Bullock  received  foueteen  hundred  and  thirty-seven,  (1,437.) 

F.  C.  Humphries  received  twenty-three  hundred  and  sixty-seven,  (2,367.) 

C.  H.  Pearco  received  twenty-three  hundred  and  sixty-six,  (2,366.) 

W.  H.  Holden  received  twenty-three  hundred  and  sixty -seven,  (2,367.) 

T.  W.  Long  received  twenty-three  hundred  and  sixty-six,  (2,366.) 

Marccllus  L.  Stearns  received  one,  (1.) 

The  whole  number  of  votes  cast  for  presidential  electors  in  the  county  of  Dade 
was  as  follows,  viz : 

Wilkinson  Call  received  five,  (5.) 

James  E.  Yonge  received  five,  (5.) 

Robert  B.  Hilton  received  five,  (5.) 

Robert  Bullock  received  five,  (5.) 

F.  C.  Humphries  received  nine,  (9.) 

C.  H  Pearco  received  nine,  (9.) 

W.  H.  Holden  received  nine,  (9.) 

T.  W.  Long  received  nine,  (9.) 

The  whole  number  of  votes  cast  for  presidential  electors  In  the  county  of  Evsoam  • 
bia  was  as  follows,  viz  : 


ELECTORAL  COMMISSION. 


289 


Wilkinson  Call  received  fourteen  hundred  and  twenty-six,  0,426.) 

James  E-  Yonge  received  fourteen  hundred  .and  twenty-six,  (1,426.) 

Robert  B.  Hilton  icceived  fourteen  hundred  and  twenty-six,  (1.420.) 

Robert  Bullock  received  fourteen  linudred  and  twenty-six,  (1,426.) 

P.  C.  Humphries  received  sixteen  hundred  and  two,  (1,602.) 

C.  K.  I'earee  received  sixteen  hundred  and  two,  (1,602.) 

W.  II.  Holden  received  sixteen  hundred  and  two,  (1,602.) 

T.  W.  Long  received  sixteen  hundred  and  two,  (1,GOJ.) 

The  whole  number  of  votes  cast  for  presidential  electors  in  the  county  of  Frank 
lin  was  as  follows,  viz : 

Wilkson  Call  received  one  hundred  and  sixty-seven,  (167.) 

James  E.  Yongc  received  one  hundred  and  sixty-seven,  (107.) 

Robert  B.  Hilton  received  one  hundred  and  sixty-seven,  (1(17.) 

Robert  Bullock  received  one  hundred  and  sixty-seven,  (1G7.) 

F.  C.  Humphries  received  ninety -one,  (91.) 

C.  H.  Pearce  received  ninety -one,  (91.) 

W.  II.  Holden  received  niuety-one,  (91.) 

T.  W.  Long  received  ninety-one,  (01.) 

The  whole  number  of  votes  cast  for  presidential  electors  in  the  county  of  Gads- 
den  was  as  follows,  viz  : 

Wilkinson  Call  received  eight  hundred  and  thirty -five,  (835.) 

James  E.  Yonge  received  eight  hundred  and  thii-ty-fivo,  (835.) 

Robert  B.  Hilton  received  eight  hundred  and  thirty-five,  (635.) 

Robert  Bullock  received  eight  hundred  and  thirty-five,  (835.) 

F.  C.  Humphries  received  thirteen  hundred,  (l,:iOO.) 

C.  II.  I'earee  received  thirteen  hundred,  (1.300.) 

W.  II.  Uolden  received  thirteen  hundred,  (1,300.) 

T   W.  Long  received  thirteen  hundred.  (1,300.) 

The  whole  number  of  votes  cast  for  presidential  electors  in  the  county  of  Ham 
ilton  was  as  follows,  viz : 

Wilkinson  Call  received  six  hundred  and  seventeen,  (617.) 

James  E.  Tonge  received  six  hundred  and  seventeen,  (617.) 

Robert  B  Hilton  received  six  hundred  and  seventeen,  (ii!7.) 

Robert  Bullock  received  six  hundred  and  seventeen,  (617.) 

F.  C.  Humphries  received  three  hundred  and  thirty,  (330.) 

C.  H.  Pearce  received  three  hundred  and  thirty,  (3-iO.) 

W.  II.  Holden  received  three  hundred  and  thirty,  (3:iO.) 

T.  W.  Long  received  three  hundred  and  thirty.  (330.) 

The  whole  number  of  votes  cast  for  presidential  electors  in  the  county  of  Her- 
naiidn  was  as  follows,  viz : 

Wilkinson  Call  received  five  hundred  and  seventy-nine,  (579 ) 

James  F.  Tonge  received  five  hundred  and  seventy  nine.  (579.) 

Robert  B.  Hilton  received  five  hundred  and  seventy-eight.  (578.) 

Robert  Bullock  received  five  hundred  and  seventy-nine,  (579  ) 

F.  C.  Humphries  received  one  hundred  and  forty-four,  (144.) 

C.  H.  Pearce  received  one  hundred  and  forty-four,  (144  ) 

W.  II.  Holden  received  one  hundred  and  forty-four,  (144.) 

T.  W.  Long  received  one  hundred  and  forty-four,  (144.) 

The  whole  number  of  votes  cast  for  presidential  electors  in  the  county  of  Hills- 
borongh  was  as  follows,  viz : 

Wilkinson  Call  received  seven  hundred  and  ninety,  (790.) 

James  E.  Yonge  received  seven  hundred  and  ninety,  (790.) 

Robert  B.  Hilton  received  seven  hundred  and  ninety,  (790.) 


\v.  11.  iioHten  received  one  nunureu  and  eignry-six,  (it 
T.  W.  Long  received  one  hundred  and  eighty-six,  (186.) 

The  whole  number  of  votes  cast  for  presidential  electors  in  the  county  of  Holmes 
•was  as  follows,  viz : 

Wilkinson  Call  received  three  hundred,  (300.) 
James  E.  Yonge  received  three  hundred,  (300.) 
Robert  B.  Hilton  received  three  hundred,  (300.) 
Robert  Bullock  received  three  hundred,  (300.) 
F.  C.  Humphries  received  sixteen,  (16.) 
('.  II.  Pearee  received  sixteen,  (16.) 
W.  U.  Holden  received  sixteen,  (16.) 
T.  W.  Long  received  sixteen,  (16  ) 

The  whole  number  of  votes  cast  for  presidential  electors  in  the  county  of  Jack- 
eon  was  as  follows,  viz  : 

Wilkinson  Call  received  thirteen  hundred  and  ninety-seven,  (1,397) 
James  E.  Yonge  received  thirteen  hundred  and  ninety-seven.  (1.397.) 
Robert  B.  Hilton  received  thirteen  hundred  and  ninety-seven,  (1,397.) 
Robert  Bullock  received  thirteen  hundred  and  ninety-seven,  (1,397.) 
F.  C.  Humphries  received  twelve  hundred  and  ninety -nine,  (1,299.) 
C.  H.  Pearce  received  twelve  hundred  and  ninety -nine,  (1.299.) 
W.  H.  Holden  received  twelve  hundred  and  ninety -nine,  (1,299.) 
T.  W.  Long  received  twelve  hundred  and  ninety -nine,  (1,299.) 
The  whol-  number  of  votes  cast  for  presidential  electors  m  the  county  of  Jeffer 
son  was  as  follows,  viz: 

Wilkinson  Call  received  seven  hundred  and  thirty-seven,  (737.) 
James  E.  Yonge  receyed  seven  hundred  and  thiity-seveii,  (737.) 
Robert  B.  Hilton  received  seven  hundred  and  thirty-seven.  (737.) 


w  .  11.  o.uftueii  rowtwu  iiweiii'.y-siA.  umuirou  <um  t>i.\tty,  ^,uuu./ 

T.  W.  Long  received  twenty-six  hundred  and  sixty,  (2,6tiO.) 

The  whole  number  of  votes  cast  for  presidential'  electors  in  the  county  of  La 
Fayette  was  as  follows,  viz: 

Wilkinson  Call  received  three  hundred  and  nine,  (309.) 

James  E.  Yonge  received  three  hundred  and  nine,  (309.) 

Robert  B.  Hilton  received  three  hundred  and  nine,  (309.) 

Robert  Bullock  received  three  hundred  and  uiiie,  (309.) 

F.  C.  Humphries  received  sixty-two.  (62.) 

C.  H.  Pearce  received  sixty-two,  (62.) 

W.  II.  Holden  received  sixty-two,  (62.) 

T.  W.  Long  received  sixty -two,  (62.) 

The  whole  number  of  votes  cast  for  presidential  electors  in  the  county  of  Leon 
was  as  follows,  viz  : 

Wilkinson  ('all  received  one  thousand  and  three,  (1.003.) 

James  E.  Yonge  received  one  thousand  and  three,  (1,003.) 

Robert  B.  Hilton  received  one  thousand  and  three,  (1,003.) 

Robert  Bullock  received  one  thousand  and  three,  (1,003.) 

F.  C.  Humphries  received  three  thousand  and  thirty-five.  (3.035.) 

C.  H.  Pearce  received  three  thousand  and  thirty-five,  (3,035.) 

W.  H.  Holden  received  three  thousand  and  thirty-five,  (3.035.) 

T.  W.  Long  received  three  thousand  and  thirty-five,  (3.035.) 

The  whole  number  of  votes  cast  for  presidential  electors  in  the  county  of  Levy 
was  as  follows,  viz : 

Wilkinson  Call  received  four  hundred  and  eighty-seven,  (487.) 

James  E.  Youge  received  four  hundred  and  eighty-eight,  (488.) 

19 


Robert  B.  Hilton  received  four  hundred  and  eighty-seven,  (487.) 

Robert  Bullock  received  four  hundred  and  eighty-seven,  (4d7.) 

F  ('.  Humphries  received  two  hundred  and  neven.  (207.) 

C.  II.  Pearce  received  two  hundred  and  seven,  (207.) 

W.  II.  Hold'-n  received  two  hundred  and  seven,  (207.) 

T.  W.  Long  received  two  hundred  and  six,  (20ii.) 

The  whole  number  of  votes  cast  for  presidential  electors  in  thecounty  of  Liberty 
was  as  follows,  viz : 

Wilkinson  Call  received  one  hundred  and  forty -seven,  (147  ) 

James  E.  Yonge  received  one  hundred  and  forty-seven,  (147  ) 

Robert  B.  Hilton  received  one  hundred  and  forty-seven,  (147.) 

Robert  Bullock  received  one  hundred  and  forty-seven,  (147.) 

F.  C.  Humphries  received  eighty-three,  (83.) 

C.  II.  Pearce  received  eighty-three,  (83.) 

W.  II.  Bolden  received  eighty-three,  (83.) 

T.  W.  Long  received  eighty-three.  (f3.) 

The  whole  number  of  votes  cast  for  presidential  electors  in  the  county  of  Madi 
son  was  as  follows,  viz: 

Wilkinson  Call  received  one  thousand  and  seventy-eight,  (1.078.) 

James  E.  Yonge  received  one  thousand  and  seventy-eight.  (1.078.) 

Robert-  B  Hilton  received  one  thousand  and  seventy-eight,  (1.078.) 

Robert  Bullock  received  one  thousand  and  seventy-eight,  (1,078.) 

F.  C.  Ilumphiics  received  one  thousand  >'ve  hundred  and  twenty-four.  (1.524.) 

C.  H.  Pearco  received  one  thousand  five  hundred  and  twenty-four,  (1,524.) 

W.  H.  Holden  received  one  thousand  live  hundred  au-1  twenty-four,  (I. "2-1  ) 

T.  W.  Long  received  one  thousand  five  hundred  and  twenty-four,  (1.524.) 

The  whole  number  of  votes  cast  for  presidential  electors  in  the  county  of  Mana 
tee  was  as  follows,  viz: 

Wilkinson  Call  received  two  hundred  and  sixty-two,  (262  ) 

James  E.  Yonge  received  two  hundred  and  sixty-two,  (2(12.) 

Robert  B.  Hilton  received  two  hundred  and  sixty-two,  (262.) 

Robert  Bullock  received  two  hundred  and  sixty -two,  (262.) 

F.  C.  Humphries  received  twcnty-six,  (26.) 

C   H.  Pearce  received  twenty  six.  (23.) 

W.  IT.  Holden  received  twenty-six.  (06.) 

T.  W.  Long  received  twenty-six,  (26.) 

The  whole  number  of  votes  cast  for  presidential  electors  in  the  county  of  Marion 
was  as.follows,  viz  ; 

Wilkinson  ('all  received  nine  hundred  and  fiftv-eight,  (958  ) 

James  E.  Yonge  received  nine  hundred  and  fifty-eight,  (958.) 

Robert  B.  Hilton  received  nine  hundred  and  fifty-eiyht.  (95H.) 

Robert  Bullock'received  nine  hundred  and  fifty -ei'zht.  (9.V.) 

F.  C.  Humphries  received  fifteen  hundred  and  fifty-two,  (1,552.) 

C   H   Pearco  received  fifteen  hundred  and  fifty-two.  (1.5J2  ) 

W.  H.  Holden  received  fifteen  hundred  and  fifty-two.  (1.552.) 

T.  W.  Long  received  fifteen  hundred  and  fifty-two,  (1,552.) 

The  whole  number  of  votes  cast  for  presidential  electors  in  the  county  of  Mon 
roe  w.is  as  follows,  viz: 

Wilkinson  Call  received  ten  hundred  and  forty-seven,  (1,017.) 

James  E.  Yonge  received  ten  hundred  and  forty-seven,  (1,047.) 

Robert  B.  Hilton  received  ten  hundred  and  forty-seven.  (1,047.) 

Robert  Bullock  received  ten  hundred  and  forty-seven,  (1  047.) 

F  C.  Humphries  received  nine  hundred  and  eighty,  (980.) 

C.  H.  Pearce  received  nine  hundred  and  eighty,  (9*0  ) 

W.  H.  Holden  received  nine  hundred  and  eighty,  (980.) 

T.  W.  Long  received  nine  hundred  and  eighty,  (9^0  ) 

The  whole  number  of  votes  cast  for  presidential  electors  in  the  county  of  Nassau 
was  as  follows,  viz  : 

Wilkinson  Call  received  six  hundred  and  sixty-seven,  (667  ) 

James  E.  Yonge  received  six  hundred  and  sixty-seven,  (667.) 

Robert  B.  Hilton  received  six  hundred  and  sixty-six,  (666.) 

Robert  Bullock  received  six  hundred  and  sixtv-seven,  (667.) 

F.  C.  Humphries  received  eisrht  hundred  and  tw.»,  (802.) 

C.  H.  Pearee  received  eisht  hundred  and  two,  (802.) 

W.  II.  Holden  received  eight  hundred  and  two,  (*02.) 

T.  W.  Long  received  eight  hundred  and  two,  (802.) 

The  whole  number  of  votes  cast  for  presidential  electors  in  the  county  of  Orange 
was  as  follows,  viz  : 

Wilkinson  Call  received  nine  hundred  and  eight,  (909.) 

James  E!  Yonge  received  nine  hundred  and  eight.  (908.) 

Robert  B.  Hilton  received  nine  hundred  and  eight,  (908.) 

Robert  Bullock  received  nine  hundred  and  seven,  (907.) 

F.  C   Hmnphiies  received  two  hundred  and  eight.  (208.) 

C.  H.  Pea1  ce  received  two  hundred  and  seven.  (207.) 

W.  H.  Holden  received  two  hundred  and  eight,  (208.) 

T.  W.  Long  received  two  hundred  and  six.  (206.) 

The  whole  number  of  votes  cast  for  presidential  electors  in  the  county  of  Putnam 
was  as  follows,  viz: 

Wilkinson  Call  received  six  hundred  and  five,  (605.) 

James  E.  Youge  received  six  hundred  and  five,  (605.) 

Robert  B.  Hilton  received  six  hundred  and  five,  (605.) 

Robert  Bullock  received  six  hundred  and  five,  (605  ) 

F.  C.  Humphries  received  five  hundred  and  eighty-six,  (586  ) 

C.  H.  Pearce  received  five  hundred  and  eighty-six,  (586  ) 

W.  H.  Holden  received  five  hundred  and  eighty-six.  (5-6.) 

T   W.  Long  received  five  hundred  and  eighty-five.  (585.) 

The  whole  number  of  votes  cast  for  presidential  electors  in  the  county  of  Polk 
•was  as  follows,  viz : 

Wilkinson  Call  received  four  hundred  and  fifty-six,  (456.) 

James  E.  Yonge  received  four  hundred  and  fifty -six,  (456.) 

Robert  B.  Hilton  received  four  hundred  and  fifty -six,  (456.) 

Robert  Bullock  received  four  hundred  and  fifty-six,  (456.) 

F.  C.  Humphries  received  six,  (6.) 

C.  H.  Pearce  received  six,  (6  ) 

W.  II.  Holden  received  six,  (6.) 

T.  W.  Long  received  six,  (6.) 

The  whole  number  of  votes  cast  for  presidential  electors  in  the  county  of  Santa 
Rosa  was  as  follows,  viz  : 

Wilkinson  Call  received  seven  hundred  and  sixty-eight.  (768.) 

James  E.  Yonge  received  seven  hundred  and  sixty -eight,  (768.) 

Robert  B.  Hilton  received  seven  hundred  and  sixty-eight,  (768.) 

Robert  Bullock  received  seven  hundred  and  sixty-eiirht,  (768.) 

F.  C.  Humphries  received  four  hundred  and  nine,  (409.) 

C.  H.  Pearce  received  four  hundred  and  nine,  (409.) 

W.  H.  Holden  received  four  hundred  and  nine.  (409.) 

T.  W.  Long  received  four  hundred  and  nine,  (409.) 

The  whole  number  of  votes  cast  for  presidential  electors  in  the  county  of  Sum- 
ter  was  as  follows,  viz : 

Wilkinson  Call  received  five  hundred  and  six,  (50fi  ) 

James  E.  Yonge  received  five  hundred  and  six.  (506.) 

Robert  B.  Hilton  received  five  hundred  and  six,  (506.) 

Robert  Bullock  received  live  hundred  and  five,  (505.) 


290 


ELECTORAL  COMMISSION. 


F.  C.  Humphries  received  one  hundred  and  seventy-three,  (173.) 

C.  H.  Pearco  received  one  hundred  and  seventy-three,  (173.) 

W.  H.  Holdeu  received  one  hundred  and  seventy-three,  (173.) 

T.  W.  Long  received  one  hundred  and  seventy-throe,  (173.) 

The  whole  "number  of  votes  cast  for  presidential  electors  in  the  county  of  Saint 
John's  was  as  follows,  viz: 

"Wilkinson  Call  received  five  hundred  and  one,  (501.) 

James  E.  Tongo  received  five  hundred  and  one,  (501.) 

Robert  B.  Hilton  received  five  hundred  and  one,  (501.) 

Robert  Bullock  received  five  hundred  and  one,  (501.) 

F.  C.  Humphries  received  three  hundred  and  thirty-eight,  (338.) 

C.  H.  Pearce  received  three  hundred  aud  thirty-eight,  (338.) 

W.  H.  Holden  received  three  hundred  and  thirty-eight,  (338.) 

T.  W.  Long  received  three  hundred  and  thirty-eight,  (338.) 

The  whole  number  of  votes  cast  for  presidential  electors  in  the  county  of  Suwan- 
Bee  was  as  follows,  viz : 

Wilkinson  Call  received  six  hundred  and  twenty-six,  (626.) 

James  E.  Touge  received  six  hundred  aud  twenty-six,  (626  ) 

Robert  B.  Hilton  received  six  hundred  and  twenty-six,  (626.) 

Robert  Bullock  received  six  hundred  and  twenty-six,  (626.) 

F.  C.  Humphries  received  four  hundred  and  fifty -eight,  (458.) 

C.  H.  Pearce  received  four  hundred  and  fifty-eight,  (458.) 

W.  H.  Holden  received  four  hundred  and  fifty-eight,  (458.) 

T.  W.  Long  received  four  hundred  and  fifty-eight,  (458.) 

The  whole  vote  cast  for  presidential  electors  in  the  county  of  Taylor  was  as  fol 
lows,  viz: 

Wilkinson  Call  received  two  hundred  and  forty-two,  (242  ) 

James  E.  Tonge  received  two  hundred  and  forty-two,  (242.) 

Robert  B.  Hilton  received  two  hundred  and  forty-two,  (242.) 

Robert  Bullock  received  two  hundred  and  forty-two,  (242.) 

F.  C.  Humphries  received  seventy-throe,  (73.) 

C.  H.  Pearce  received  seventy-three,  (73.) 

AV.  H.  Holden  received  seventy-three,  (73.) 

T.  W.  Long  received  seventy-three,  (73.) 

The  whole 'number  of  votes  cast  for  presidential  electors  in  the  county  of  Volusia 
was  as  follows,  viz : 

AVilkinson  Call  received  four  hundred  and  sixty,  (460.) 

James  E.  Touge  received  four  hundred  and  fifty-nine,  (459.) 

Robert  B.  Hilton  received  four  hundred  and  fifty-nine,  (459.) 

Robert  Bullock  received  four  hundred  and  sixty,  (460.) 

F.  C.  Humphries  received  one  hundred  and  eighty-six,  (186.) 

C.  H.  Pearce  received  one  hundred  and  eighty-six,  (186.) 

AV.  H.  Holdeu  received  one  hundred  and  eighty-six,  (186.) 

T.  W.  Long  received  one  hundred  and  eighty-six,  (186.) 

The  whole  number  of  votes  cast  for  presidential  electors  in  the  county  of  AVak- 
ulla  was  as  follows,  viz  : 

AVilkinson  Call  received  three  hundred  and  sixty-one,  (361.) 

James  E.  Touge  received  three  hundred  and  sixty-one,  (361  ) 

Robert  B.  Hilton  received  three  hundred  and  sixty-one,  (361.) 

Robert  Bullock  received  three  hundred  and  sixty-one,  (361.) 

F.  C.  Humphries  received  one  hundred  and  eighty-two.  '182,) 

C.  H.  Poarco  received  one  hundred  and  eighty-two,  (182.) 

AV.  H.  Holdeu  received  one  hund'ed  and  eighty-two,  (182.) 

T.  AV.  Long  received  one  hundred  and  eighty-two,  (182  ) 

The  whole  number  of  votes  cast  for  presidential  electors  in  the  county  of  Walton 
was  as  follows : 

Wilkinson  Call  received  six  hundred  and  twenty -six,  (626.) 

James  E.  Touge  received  six  hundred  and  twenty-eight,  (628.) 

Robert  B.  Hilton  received  six  hundred  and  twenty-eight,  (628.) 

Robert  Bullock  received  six  hundred  and  twenty-eight,  (628.) 

F.  C.  Humphries  received  forty-six,  (46.) 

C.  H.  Pearco  received  forty-six,  (46.) 

W.  H.  Holden  received  forty-seven,  (47.) 

T.  W.  Long  received  forty-six,  (46  ) 

The  whole  number  of  votes  cast  for  presidential  electors  in  the  county  of  AVash- 
ington  was  as  follows,  viz: 

Wilkinson  Call  received  four  hundred  and  seven,  (407.) 

James  E.  Tonge  received  four  hundred  aud  seven,  (407.) 

Robert  B.  Hilton  received  four  hundred  and  seven,  (407.) 

Robert  Bullock  received  four  hundred  aud  seven,  (407.) 

F.  C.  Humphries  received  one  hundred  and  nineteen,  (119.) 

C.  H.  Pearce  received  one  hundred  and  nineteen,  (119.) 

AV.  U.  Holdeu  received  one  hundred  aud  nineteen,  (119.) 

T.  AV.  Long  received  one  hundred  and  nineteen,  (119.) 

Now,  therefore,  we,  the  said  W.  D.  Bloxliam,  secretary  of  state,  Columbus  Drew, 
comptroller,  and  Walter  Gvyynu,  treasurer,  constituting  the  board  of  canvassers 
as  aforesaid,  do  hereby  certify  that,  having  completed  said  canvass  in  conformity 
to  law,  have  ascertained  and  determined,  and  do  declare  and  proclaim,  as  follows, 
•viz: 

The  whole  number  of  votes  cast  for  presidential  electors  was  as  follows,  viz : 
AVilkiuson  Call  received  twenty-four  thousand  four  hundred  and  thirty-seven, 
(24,437.) 

James  E.  Tongo  received  twenty-four  thousand  four  hundred  and  forty,  (24,440.) 
Robert  B.  Hilton  received  twcuty-four  thousand  four  hundred  and  thirty-seven, 
(24,437.) 

Robert  Bullock  received  twenty-four  thousand  four  hundred  and  thirty-seven, 
(24,437.) 

F.  C.  Humphries  reeeived  twenty-four  thousand  three  hundred  and  forty  nine 
(24,349.) 

C.  H.  Pearce  received  twenty-four  thousand  three  hundred  and  forty-five,  (24,345.) 
W.  H.  Holden  received  twenty-four  thousand  three  hundred  and  fifty,  (24,350.) 
T.  W.  Long  received  twenty -four  thousand  three  hundred  and  forty -four,  (24.344.) 

Now,  therefore,  we,  the  said  William  D.  Bloxham,  secretary  of  state,  Columbus 
Drew,  comptroller  of  public  accounts,  and  Walter  Gwynu,  treasurer,  constituting 
the  State  board  of  canvassers  as  aforesaid,  do  hereby  certify  that,  having  com 
pleted  said  canvass  in  conformity  with  the  provisions  of  said  act  entitled  "  An  act 
to  procure  a  legal  canvass  of  the  electoral  vote  of  the  State  of  Florida  as  cast  at  the 
election  held  on  the  7th  day  of  November,  A.  D.  1876,"  wo  have  ascertained  and 
determined,  and  do  hereby  declare  and  proclaim,  that,  from  said  canvass,  Wilkin 
sou  Call,  James  E.  Tonge,  Robert  B.  Hilton,  and  Robert  Bullock  are  duly  elected, 
chosen,  and  appointed  electors  of  President  and  Vice-President  of  the  United  States 
for  the  State  of  Flordia. 

In  testimony  whereof  we  do  hereunto  affix  our  official  signatures,  at  Tallahassee, 
this  the  19th  day  of  January,  1877. 

AV.  D.  BLOXHAM, 
Secretary  of  State  and  Chairman  Canvassing-Board. 

C.  DREW, 

Comptroller  Public  Accounts,  State  of  Florida. 
AV  ALTER  GWTNN, 
Treasurer,  State  of  Florida. 


TABULATION. 


Counties. 

Democratic  electors. 

Republican  electors. 

C.  H.  Humphries. 

Marcellus  L.  Stearns. 

"Wilkinson  Call. 

James  E.  Tonge. 

Robert  B.  Hilton. 

Robert  Bullock. 

~F.  C.  Humphries. 

o 
o 

1 

p-l 

ri 

u 

i 

-3 
1 

w 
$ 

ti 
a 

I 

£ 

H 

1,267 

238 

lit 

703 

215 
903 
2t?6 
1,436 
5 
1,426 
167 
835 
017 
57!> 
790 
300 
1,  3'J7 

30£ 
1,003 
487 
147 
1,  ()78 
26-2 
958 
1,047 
667 
908 
605 
456 
768 
56 
501 
62h 
2-12 
400 
361 
621 
407 

1,267 
238 
111 
703 
215 
903 
287 
1,  437 
5 
1,426 
167 
835 
617 
579 
790 
300 
1,397 
737 
309 
1,003 
488 
147 
1,078 
262 
958 
1,047 
667 
908 
605 
4'  6 
768 
506 
501 
626 
242 
459 
361 
6-28 
407 

1,267 
238 
111 
703 
215 
903 
287 
1,437 
5 
1,426 
167 
K15 
617 
578 
790 
300 
1,  397 
737 
309 
1,003 
487 
147 
1,  078 
262 
958 
1,047 
6<if 
908 
605 
45f 
768 
506 
501 

1,267 
238 
111 
703 
215 
903 
287 
1,437 
5 
1,426 
167 
835 
617 
579 
789 
300 
1,397 
737 
300 
1,003 
487 
147 
1,078 
262 
958 
1,047 
667 
907 

eor 

456 
768 
503 
501 

1,984 
143 

5H 
202 
6:i 
718 
12-2 
2,  367 
y 

1,  60i 
91 
1,300 
330 
114 
186 
It 
1,  229 
2,660 
62 
3,035 
207 
£3 
1,524 
2fl 
1,  555 
9HC 

80'; 

20e 
58C 
(. 
40£ 
17^ 
3:se 
<!.">• 
7C 
18( 
181 
4( 
11! 

1,984 
143 
56 
20-2 
62 
7M 
121 
2,  366 
9 

1,  602 
91 
1,300 
330 
144 
186 
16 
1.2P9 
2,  660 
62 
3,  035 
207 

1,52' 
28 
1,  552 
980 
802 
207 
586 
6 
409 
173 
338 
456 
I         73 
i       18 
1       l£r 
>         4 
)       11 

1,984 
143 
58 
202 
63 
718 
12-2 
2,367 
9 
1,602 
91 
1,300 
330 
144 
186 
16 
1,  299 
2,660 
62 
3,  035 
207 
83 
1,  524 

a 

1,  55-, 
960 
802 
208 
5H6 
6 
409 
173 
338 
458 
73 
18E 
18' 
4 
11 

1,  9?4 
143 
58 
202 
63 
718 
122 
2,306 
9 
1,602 
91 
1,300 
330 
144 
186 
16 
1,299 
2,660 
62 
3,  035 
206 
83 
1,524 
26 
1,  552 
9fO 
802 
20( 
585 
( 
400 
17: 
336 
45t 

7; 
181 
18s 
•)( 
11E 

.... 

... 

Baker    

Calhoun  

1 

... 

1 

Dade         

Escambia  

.... 

... 

Hillsborough  —  
11  oliues  

— 

... 

Jackson  ,  

... 

Monroe  

... 

Polk 

6-26 
242 

6-iC 
242 
460 
36 
626 
40* 

Taylor 

45S 
36 
62e 
407 

... 

Wakulla 

Walton 

... 

TOTAL   RESULT. 


Wilkinson  Call 24,437 

J.  E.  Touge 24,440 

R.  B.  Hilton 24,437 

Robert  Bullock 24,437 


F.  C.  Humphries 24,349 

C.  H.  Pearce 24,345 

W.  H.  Holden 24,350 

T.  W.  Long 24,344 


OFFICE  OF  THE  SECRETAUY  OF  STATE, 

Tallahassee,  Florida : 

I,  W.  D.  Bloxham,  secretary  of  state  of  the  State  of  Florida,  do  hereby  certify 
that  the  foregoing  is  a  true  and  correct  copy  of  the  certificate  of  the  board  of  State 
canvassers,  at  a  canvass  of  the  votes  cast  at  the  election  held  on  the  7th  day  of 
November,  A.  D.  1876,  for  electors  of  President  and  Vice- President  of  the  United 
States,  for  and  on  behalf  of  the  State  of  Florida,  and  of  the  result  thereof,  as  the 
same  appears  of  record  in  my  office. 

In  attestation  whereof  I  hereunto  set  my  hand  and  affix  the  seal  of  my  office,  at 
Tallahassee,  the  capital,  this  twenty-sixth  day  of  January,  A.  D.  1877. 

W.  D.  BLOXHAM, 

Secretary  of  State. 
EXECUTIVE  OFFICE, 

lallahassee,  Florida  : 

I,  George  F.  Drew,  governor  of  the  State  of  Florida,  do  hereby  certify  that  the 
above  attestation  of  v*  .  D.  Bloxham,  secretary  of  state  of  the  State  of  Florida,  is 
in  due  form,  and  that  it  is  made  by  the  proper  officer,  to  whose  act  as  such  full 
faith  and  credit  are  due. 

In  testimony  whereof  I  have  hereunto  set  my  hand  and  caused  the  great  seal  of 
the  State  to  be  affixed,  at  the  capital,  at  Tallahassee,  this  26th  day  of  January, A. 
D.  1877. 

[SEAL.]  GEO.  F.  DREW,  Governor. 

An  act  to  declare  and  establish  the  appointment  by  the  State  of  Florida  of  electors 
of  President  and  Vice-President. 

Whereas  at  the  general  election  held  in  this  State  on  the  7th  of  November, 
1876,  according  to  the  returns  from  the  several  counties  on  file  in  the  office  of  the 
secretary  of  state,  and  according  to  a  canvass  and  a  statement  and  a  certification 
thereof,  made  by  the  secretary  of  stare,  treasurer,  and  comptroller  of  public  ac 
counts,  under  an  act  of  this  Legislature,  entitled  "An  act  to  procure  a  legal  can 
vass  of  the  electoral  vote  of  the  State  of  Florida,  as  cast  at  the  election  held  on  the 
7th  day  of  November,  A.  D.  1876," 

Robert  Bullock  received  twenty-four  thousand  four  hundred  and  thirty-seven 
votes  for  the  office  of  elector  of  President  and  Vice-President  of  the  United  States, 

Robert  B.  Hilton  received  twenty-four  thousand  four  hundred  and  thirty-seven 
votes  for  the  said  said  office, 

Wilkinson  Call  received  twenty-four  thousand  four  hundred  and  thirty-seven 
votes  for  the  said  office, 

James  E.  Tonge  received  twenty -four  thousand  four  hundred  and  forty  votes 
for  the  said  office, 

Charles  H.  Pearce  received  twenty-four  thousand  three  hundred  and  forty-five 
votes  for  the  said  office, 

Frederick  C.  Humphries  received  twenty-four  thousand  three  hundred  and  forty- 
nine  votes  for  the  said  office, 

William  H.  Holden  received  twenty-four  thousand  three  hundred  and  fifty  votes 
for  the  said  office, 

Thomas  W.  Long  received  twenty-four  thousand  three  hundred  and  forty-four 
votes  for  the  said  office ; 


ELECTORAL  COMMISSION. 


291 


And  whereas,  as  shown  by  tho  said  returns,  the  said  Robert  Bullock,  Robert  B. 
Hilton,  Wilkinson  Call,  and  James  E.  Yonge  were  duly  chosen  and  appointed 
electors  of  President  and  Vice-President  of  the  United  States  by  the  State  of 
Florida,  in  such  manner  as  tho  Legislature  of  the  said  State  had  directed  ; 

And  whereas  the  board  of  State  canvassers  constitute;!  under  the  act  approved 
February  27,  1?<72,  did  interpret  tho  laws  of  this  State  defining  the  powers  and  du 
ties  of  tho  said  board  in  such  manner  as  to  give  th«m  power  to  exc'.udo  certain 
regular  returns,  and  did,  in  fact,  under  such  Interpretation,  exclude  certain  of  such 
regular  returns,  which  said  interpretation  has  been  adjudged  by  the  supreme  court 
to  ho  erroneous  and  illegal  j 

And  whereas  the  late  governor,  Marcellus  L.  Stearns,  by  reason  of  said  illegal 
action  and  erroneous  and  illegal  canvass  of  the  said  board  of  State  canvassers,  did 
erroneously  cause  to  bo  made  and  certified  lists  of  the  names  of  the  electors  of  this 
State  containing  the  names  of  tho  said  Charles  II.  Pearce,  Frederick  C.  Humphries, 
William  H.  Holden,  and  Thomas  W.  Long,  and  did  deliver  such  lists  to  said  per 
sons,  when  in  fact  tho  said  persons  had  not  received  the  highest  mini1  er  of  votes, 
and  on  a  canvass  conducted  according  to  the  rules  prescribed  and  adjudged  as  legal 
by  the  supreme  court,  were  not  appointed  as  electors  or  entitled  to  receive  such 
lists  ironi  the  governor,  but  Robert  Bullock,  Robert  B.  Ililtou,  Wilkinson  Call,  and 
James  E.  Yongo  were  duly  appointed  electors,  and  were  entitled  to  have  their 
mimes  compose  the  lists  niade  and  certilied  by  the  governor,  and  to  have  such  lists 
delivered  to  them  : 

Now,  therefore,  the  people  of  the  State  of  Florida,  represented  in  senate  and 
assembly,  doena^-t  as  follows  : 

SUCTION  1.  That  Robert  Bullock,  Robert  B.  Hilton.  Wilkinson  Call,  and  James 
E.  Yonge  wer ••,  on  the  7th  day  of  November,  876,  duly  chosen  and  appointed  by 
and  on  behalf  of  the  State  of  Florida,  in  such  manner  as  tho  Legislature  thereof 
has  directed,  electors  of  President  and  Vice-President  of  tho  United  States,  and 
•were  from  tho  said  7th  day  of  November,  1»76,  and  a-e,  authorized  and  entitled  to 
exercise  all  the  powers  and  duties  of  the  office  of  electors  as  aforesaid,  and  had  full 
power  and  authority  on  the  6th  day  of  December,  Ib76,  to  vote  as  such  electors  for 
President  and  Vice  President  of  the  United  States,  and  to  certify  and  transmit 
their  votes  as  provided  by  law,  and  their  acts  as  such  electors  are  hereby  ratified, 
continued,  and  declared  to  be  valid  toall  intents  and  purposes;  and  the  said  Rob 
ert  Bullock,  Robert  B.  Hilton,  Wilkinson  Call,  and  James  E.  Yongeare  hereby  ap 
pointed  such  electors  as  on  and  from  and  after  the  said  7th  day  of  November,  Iw7(i. 

SEC.  2.  The  governor  of  this  State  is  hereby  authorized  and  directed  to  make  and 
certify  in  due  form,  under  the  great  seal  of  this  State,  three  lists  of  the  names  of 
the  said  electors,  to  wit,  Robert  Bullock,  Robert  B.  Hilton,  Wilkinson  Call,  and 
James  E.  Yonge,  and  to  transmit  the  same,  with  an  authenticated  copy  of  this  act, 
to  the  President  of  the  Senate  of  the  United  States  ;  and  said  lists  anil  certificates 
ahull  be  as  valid  and  effectual  to  authiiiticato  in  behalf  of  this  Siate  the  appoint 
ment  of  such  electors  by  this  State  as  if  they  had  been  made  and  delivered  O'i  or 
before  the  Cth  day  of  December,  1876,  and  had  been  transmitted  immediately  there 
after,  and  the  lists  and  certificates  containing  the  names  of  Charles  H.  Pearce, 
Frederick  C.  Humphries,  William  H.  Holden,  and  Thomas  W.  Long  are  hereby  de 
clared  to  be  illegal  and  void. 

SEC.  3.  The  governor  of  this  State  is  further  authorized  and  required  to  cause 
three  other  lists  of  the  names  of  said  electors,  to  wit,  Bobe-rt  Bullock,  Robert  B. 
Hi:ton,  Wilkinson  Call,  and  James  E.  Yonge,  to  be  made  and  certilied,  and  forth 
with  delivered  to  tho  said  electors;  and  the  said  electors  shall  thereupon  meet  at 
tho  capital  in  Tallahassee,  and  make  and  sign  three  additional  certificates  of  all  tho 
votes  given  by  them  on  the  said  sixth  day  of  December,  each  of  which  certificates 
shall  contain  two  distinct  lists,  one  of  the  votes  for  President  and  the  other  of  the 
votes  for  Vice-President,  and  annex  to  each  of  the  certilicates  one  of  the  lists 
of  the  electors  which  shall  have  been  furnished  to  them  by  the  governor  pursuant 
to  this  section,  and  the  certificates  so  made  shall  be  sealed  up,  certified,  and  ono  of 
them  transmitted  by  messenger  and  the  other  by  mail  to  the  President  of  the  Sen 
ate,  and  the  third  delivered  to  tho  judge  of  the  district,  as  required  by  law. 

SEC.  4.  An  authenticated  copy  of  tliis  act  shall  be  transmitted  by  the  secretary 
of  state  to  the  President  of  the  Senate  of  the  United  States,  and  another  copy  to 
the  Speaker  of  the  House  of  Representatives  of  the  United  States. 

SEC.  5   This  act  shall  take  effect  from  and  after  its  passage. 

Approved'  January  20,  Is77. 

OFFICE  OF  THE  SECUETARY  OF  STATE, 

Tallahansee,  Florida. 

I,  W.  D  Bloxhara,  secretary  of  state  of  the  State  of  Florida,  do  hereby  certify 
that  the  foregoing  is  a  true  and  correct  copy  of  the  original  on  tile  in  my  office. 

In  testimony  whereof  I  have  hereunto  set  my  hand  and  affixed  the  great  seal  of 
the  State.    Done  at  Tallahassee,  the  capital,  this  2tith  day  of  January,  A.  D.  1677. 
[SEAL.]  W.  D.  BLOXHAM, 

Secretary  of  State. 


OBJF,CTION  TO  No.  1. 

The  undersigned,  Charles  W.  Jones,  Senator  of  the  United  States  from  the  State 
of  Florida ;  Henry  Cooper,  Senator  of  the  LTnited  States  from  the  Stat"  of  Tennes 
see  ;  J.  E.  McDonald,  Senator  of  the  United  States  from  the  State  of  Indiana ;  Da 
vid  Dudley  Field,  Representative  from  the  State  of  New  York ;  J.  Randolph  Tucker, 
Representative  from  the  State  of  Virginia;  Q.  A.  Jenks,  Representative  from  the 
State  of  Pennsylvania,  and  William  M.  Springer,  Representative  from  the  State  of 
Illinois,  object'  to  the  counting  of  the  votes  of  Charles  H.  Pearce,  Frederick  C. 
Humphries,  William  H.  Holdeu,  and  Thomas  W.  Long  as  electors  of  President  and 
Vice-President  of  the  United  States  in,  for,  or  on  behalf  of  the  State  of  Florida; 
and  to  tho  paper  purporting  to  be  a  certificate  of  M.  L.  Steams,  as  governor  of  the 
said  State,  that  the  said  Charles  II.  Pearce,  Frederick  C.  Humphries,  William  H. 
llslden,  a»d  Thomas  W.  Long  were  appointed  electors  in,  for,  or  on  behalf  of  the 
said  State:  and  to  the  papers  purporting  to  be  the  lists  of  votes  cast  by  tho  said 
Charles  H.  Pearce,  Frederick  C.  Ilumphri'  s,  William  II.  Holdeu,  and  Tiiomas  W. 
Longfor  President  and  Vice-President  of  the  United  States ;  and  to  the  votes  them 
selves,  in  tho  reasons  and  upon  tho  grounds  following,  among  others,  that  is  To  way  : 

1.  For  that  tho  said  Charles  H.  Pearce,  Frede'i  icfc  C.  Humphries.  William  H. 
Holdeu,  and  Thomas  W  Long  were  not  appointed  by  the  said  State  of  Florida  in 
such  manner  as  its  Legislature  had  directed,  or  in  any  manner  whatever,  electors  of 
President  and  Vice-President  of  the  United  States. 

2.  For  that  Wilkinson  Call,  James  E.  Yonge,  Robert  B.  Hilton,  and  Robert  Bul 
lock  were  appointed  by  tho  said  State  in  such  manner  as  its  Legislature  had  di 
rected  electors  of  President  and  Vice-President  of  the  United  Spates. 

3.  The  manner  of  appointing  electors  of  President  and  Vice-President  of  the 
"United  States  in,  for,  or  on  behalf  of  the  State  of  Florida  was  by  the  votes  of  the 


Robert  B.  Hilton,  and  Robert  Bullock  to  be  such  electors,  which  appointment  gave 
to  t  be.  appoint  es  an  Irrevocable  title  that  could  not  be  changed,  or  setaside,  oroon- 
ferred  onauy  other  person. 

4.  For  that  the  pretended  certificate,  or  paper  purporting  to  be  a  certificate,  signed 
by  M.  L.  Steams,  as  governor  of  said  Statr,  of  tho  appointment  of  Charles  H.  Pearce. 
Frederick  C.  Humphries,  William  H.  Holdeu,  and  Thomas  W.  Long  to  be  electors, 
•was  and  is  in  all  respects  untrue,  and  was  corruptly  procured  and  made  in  pursu 
ance  of  a  conspiracy  between  the  said  M.  L.  Stearns,  the  said  Charles  H.  Pearee, 
Frederick  C.  Humphries,  William  H.  Holden,  and  Thomas  W.  Long,  and  other  per- 
BOUS  to  these  objectors  unknown,  with  intent  to  deprive  tho  people  of  the  said  State 


of  their  right  to  appoint  electors,  and  to  deprive  Wilkinson  Call,  James  E.  Yongo, 
Robert  B.  Hilton,  and  Robert  Bullock  of  their  title  t  >  said  otlice,  and  to  assert,  and 
set  up  fictitious  and  unreal  votes  for  P  esident  and  Vice- President,  and  thereby  to 
deceive  the  proper  authorities  of  this  Union. 

5.  For  that  the  said  p  ipers,  falsely  purporting  to  be  the  votes  for  President  and 
Vice- President  of  the  State  of  Florida,  which  are  now  here  objected  to,  are  ficti 
tious  and  unreal,  and  do  not  truly  represent  any  votes  or  lawful  acts,  and  were 
made  out  and  executed  in  pursuance  of  the  same  fraudulent  conspiracy  by  the  said 
persons  purporting  to  have  cast  said  votes. 

6.  For  that  the  said  pretended  certificate,  and  the  pretended  lists  of  electors  con 
nected  therewith,  so  made  by  tho  said  M.  L.  Stearns,  if  tho  said  certificates  and  lists 
ever  had  any  validity,  which  these  objectors  deny,  have  been  annulled  and  declared 
void  by  a  subsequent  lawful  certificate  of  the,  executive  of  tho  Stato  of  Florida, 
duly  and  lawfully  made,  in  which  tho  said  Wilkinson  Call,  Robert  Bullock,  James  E. 
Yougo,  and  Robert  15.  Hilton  aro  truly  and  in  due  form  declared  to  have  been  duly 
appointed  by  tho  said  State  in  the  manner  directed  by  its  constitution,  and  nlso  by 
an  act  of  the  Legislatureof  the  said  State,  in  which  the  title  of  the  said  Wilkinson 
Call,  James  E.  Yonge,  Robert  B.  Hilton,  anil  Robert  Bullock  as  such  electors  is  de 
clared  to  be  good  arid  valid,  and,  further,  by  the  jud-rineut  of  the  circuit  court  of 
the  said  State  of  Florida  for  the  second  judicial  circuit,  that  being  a  court  of  com 
petent  juri  diction,  upon  an  information  in  the  nature,  of  quo  w  •rrantu  brought  on 
tho  Cth  day  of  December,  1876,  before sai  1  pretended  electors  iu  any  form  voted  for 
President  or  Vice-President,  as  aforesaid,  by  tho  State  of  Florida  on  the  relation  of 
the  said  Wilkinson  Call,  Robert  Bullock,  James  E.  Youge,  an  1  Robert  L>.  IliHou 
against  the  said  Charles  II.  Pearce,  Frederick  C.  Humphries,  William  II.  Holden, 
and  Thomas  W.  Long,  whereby  the  defendants,  aftirhu\  ing  appeared,  pleaded,  and 
put  in  issue  the  question  of  their  own  right  and  title,  and  that  if  the  relators.  to 
act  as  such  electors,  and  after  full  hearing  it  was  duly  and  lawfully  adju  Iged  by 
said  court  that  the  said  Charles  H.  Pearce,  Frederick  C.  Humphries,  William  H. 
Holdeu,  and  Thomas  W.  Long  were  not,  nor  was  any  one  of  them,  elected,  chosen, 
or  appointed,  or  entitled  to  be  declared  elected,  chosen,  or  appoiuted,  as  such  elect 
ors  or  elector,  or  to  receive  certificates  or  certificate  of  election,  or  appointment,  as 
such  electors  or  elector,  and  that  the  said  respondents  were  not,  upon  tho  said  Oth 
day  of  December,  or  at  any  other  time,  entitled  to  assume  or  exercise  any  of  the 
powers  and  functions  of  such  electors  or  elector,  but  that  they  were,  upon  the  said 
day  and  date,  mere  usurpers,  and  that  all  and  singular  their  acts  and  doings  as  such 
were  and  aro  illegal,  null,  and  void. 

And  it  was  further  considered  and  adjudged  thnt  the  said  relators,  Robert  Bul 
lock,  Robert  B.  Hilton,  Wilkinson  Call,  and  James  E.  Youge,  all  an;l  singuhir, 
were,  at  said  election,  duly  elected,  chosen,  and  appoiuted  electors  of  PresHeht  and 
Vice-President  of  the  United  States  ;  and  were  on  tlie  s  id  Cih  day  of  December, 
1876,  entitled  to  be  declared  elected,  chosen,  and  appointed  as  said  electors,  au  1  to 
have  and  receive  certificates  thereof,  and  upon  I  ho  said  day  and  dale,  and  at  all 
times  since,  to  exercise  and  perform  all  an-1  singular  tho  powers  aud  duties  of  such 
electors,  and  to  have  and  enjoy  tho  pay  and  emoluments  thereof. 

For  that  tho  four  persons  last  name;{  did,  as  such  electors,  on  December  G.  lM7f>, 
cast  tho  four  votes  of  Florida  for  Mr.  Tilden  as  President  an  1  Mr.  Ilendricks  as 
Vice-Presi 'ent ;  and,  as  well  in  that  respect  as  in  all  others,  acting  in  entire  an  I 
perfect  conformity  with  the  Constitution  of  the  United  States,  they  certified  ihe 
same  votes  to  the'President  of  tho  Senate. 

They  did  everything  toward  the  authentication  of  such  votes  required  by  tho 
Constitution  of  the  United  States  or  by  any  act  of  Congress  exctjpt  tuo  section  136 
of  tho  Revised  Statutes.  And,  in  conformity  with  tho  aforcsai:!  judgment  of  tho 
Florida  court,  a  governor  of  Florida  who  had  been  duly  inducted  into  ollico  subse 
quently  to  December  6,  1876,  did  on  the  26th  day  of  January,  H77  give  to  the  last- 
named  four  electors  tho  triplicate  lists  prescribed  by  said  act  of  Congress,  (R.  S.  of 
U.  S.,  §  136,)  which  they  forwarded,  as  proscribed  by  the  acts  of  Congress,  as  a  sup 
plement  to  their  former  certification  in  that  behalf. 

And  in  support  of  the  said  objections  and  claims,  the  undersigned  beg  leave  to 
refer  to  tho  reasons  and  documents  submitted  herewith,  au:l  to  such  petitions, 
depositions,  papers,  and  evidence  as  may  be  hereafter  produced,  and  as  may  bo 
competent  and  pertinent  in  considering  th«  said  objections  and  claims. 

Among  the  papers  herewith  submitted  are  the  following : 

1st.  So  much  of  the  official  Congressional  Record  of  February  1. 1877,  as  contains 
the  report  of  tho  House  committee-  on  tho  recent  election  in  Florida. 

2d.  The  original  report  of  said  committee. 

3d.  The  certified  copy  of  the  act  of  the  Legislature  of  Florida,  approved  January 
17,  1877,  entitled  "An  act  to  procure  a  legal  canvass  of  tho  electoral  vote  of  the 
State  of  Florida  as  cast  at  the  election  held  on  the  seventh  (7th)  day  of  Novem 
ber,  1876." 

4th.  The  certificate  of  the  State  canvassers  of  the  election  held  November  7, 1876, 
dated  January  19, 1877. 

5th.  Tho  certified  copy  of  the  act  of  the  Legislature  of  Florida,  approved  Jan- 
nary  26,  1877.  entitled  "An  act  to  declare  and  establish  tho  appointment  by  tho 
State  of  Florida  of  electors  of  President  and  Vice-President." 

Gth.  The  certificate  of  George  F  Drew,  governor  of  th  *  State  of  Floridi,  of  the 
names  of  the  electors  chosen  on  the  7th  day  of  November,  1876,  bearing  date  Jan 
uary  26,  1877. 

7th.  The  certificate  of  Wilkinson  Call,  James  E.  Yonge,  Robert  Bullock,  and 
Robert  B.  Hilton,  electors  appointed  by  the  State  of  Florida,  of  the  votes  cast  for 
President  and  Vice-Prosident  by  them,'  bearing  date  January  26,  1877. 

8th.  The  record  of  the  proceedings  and  judgment  of  tho  circuit  court  of  Leon 


phreys,  W.  H.  Holden,  and  T.  W.  Lenz. 

Also,  the  certified  copy  of  the  act  of  the  Legislature  of  Florida,  approved  Jan 
uary  26,  1877,  aforesaid,  and  tho  certificate  of  State  canvassers,  aforesaid,  and  the 
proceedings  and  judgment  on  tho  information  aforesaid,  transmitted  to  and  received 
by  the  House  of  Representatives  on  the  31st  day  of  January,  1877. 


WASHINGTON,  February  1, 1877. 


CIIAS  W.  JONES. 
IJEXRY  COOPKR. 

j.  E.  MCDONALD. 

DAVID  DUDLEY  FIELD. 
J.  R.  TUCKER. 
G   A.  JENKS. 
WILLIAM  M.  SPRINGER. 


OBJECTION  TO  No.  2. 

An  objection  is  interposed  to  the  certificates,  or  papers  purporting  to  be  certifi 
cates,  of  the  electoral  votes  of  tho  State  of  Florida,  as  having  been  cast  by  James 
E.  Yonge,  Wilkinson  Call.  Robert  B.  Hilton,  and  Robert  Bullock,  upon  the  ground 
that  the'said  certificates  or  papers  are  not  authenticated  according  to  the  requi'-e- 
meiits  of  the  Constitution  and  laws  of  the  United  States,  so  as  to  entitle  them  to  bo 
received  or  read,  or  votes  stated  therein,  or  any  <  f  them,  to  be  counted,  in  the  elec 
tion  of  President  of  the  United  States  or  of  Vice-President  of  the  Unite  I  States. 
S  B  COXOVER,  WILLIAM  WOOD3UUN, 

A.  A.  SARGENT,  ilARKU.  DUN.NELL. 

JOHN  SHKRMAN,  JOHN  A.  KASSOX, 

H.  M.  TELLER,  GEO.  W.  McCRARY, 

Senators.    Members  Roiisi  of  Representatives. 


292 


ELECTORAL  COMMISSION. 


OBJECTION  TO  No.  2. 

An  objection  is  interposed  to  the  certificates,  or  papers  purporting  to  be  certifi 
cates,  of  the  electoral  vote  of  the  State  of  Florida,  as  havinjr  been  cast  by  James  E. 
Yongo,  Wilkinson  Call,  Robert  B.  Hilton,  and  Robert  Bullock,  upon  the  ground 
that  said  certificates  or  papers  do  not  include,  and  are  not  accompanied  by,  in  the 
package  or  inclosure  in  which  they  arc  produced  and  opened  by  the  President  of 
the  Senate  in  the  presence  of  the  two  Houses  of  Congress,  any  certiflcnte  of  the 
executive  authority  of  the  State  of  Florida  of  the- list  of  the  names  of  said  electors, 
James  E.  Yongo,  Wilkinson  Call.  Robert  B.  Hilton,  and  Robert  Bullock,  or  of  any 
of  them,  as  being  said  electors.  Nor  are  said  certificates  or  papers  objected  to  ac 
companied  by  any  valid  or  lawful  certification  or  authentication  of  said  electors, 
James  E.  To'ngo,' "Wilkinson  Call,  Robert  B.  Hilton,  and  Robert  Bullock,  or  any  of 
them,  as  having  been  appointed,  or  as  being  electors  to  cast  the  electoral  vote  pf 
the  State  of  Florida,  or  entitling  the  votes  of  said  James  E.  Touge,  Wilkinson 
Call,  Robert  B.  Hilton,  and  Robert  Bullock,  or  of  either  of  them,  to  be  counted  in 
the  election  of  President  of  the  United  States  or  of  Vice-President  of  the  United 
States. 

S.  B.  CONOVER. 
A.  A.  SARGENT, 
JOHN  SHERMAN, 
H.  M.  TELLER, 

Senators. 

WILLIAM  WOODBURN, 
MARK  H.  DUNNELL, 
GEO.  W.  McCRART, 
JOHN  A.  KASSON, 
Members  House  of  Representatives, 


OWECTION  TO  NOS.  2  AND  3. 

An  objection  is  interposed  to  the  certificates,  or  papers  purporting  to  be  certifi 
cates,  of  the  electoral  votes  of  the  State  of  Florida,  as  having  been  cast  by  James 
E.  Tongo,  Wilkinson  Call,  Robert  B.  Hilton,  and  Robert  Bullock,  upon  the  ground 
that,  by  a  certificate  of  the  electoral- vote  of  the  State  of  Florida,  in  all  respects 
regular  and  valid  and  sufficient  under  the  Constitution  and  laws  of  the  United 
States,  and  duly  authenticated  as  such  and  duly  transmitted  to  and  received  by  and 
opened  by  the  President  of  the  Senate  in  the  presence  of  the  two  Houses  of  Con 
gress,  it  appears  that  Frederic  C.  Humphreys,  Charles  H.  Pcarce,  Thomas  W.  Lona:, 
and  William  H.  Holden,  and  each  of  them,  and  no  other  person  or  persons,  were  duly 
appointed  electors  to  cast  the  electoral  vote  of  the  State  of  Florida,  and  that  said 
above-named  electors  did  duly  cast  the  electoral  vote  of  the  Stato  of  Florida,  and  did 
duly  certify  and  did  transmit  the  said  electoral  vote  of  theState  of  Floi  ida  to  the  Pres 
ident  of  the  Senate,  by  reason  whereof  the  said  certificates  or  papers  purporting  to 
be  certificates  objected  to  are  not  entitled  to  bo  received  or  read,  nor  are  the  votes 
therein  stated,  or  any  of  them,  entitled  to  be  counted,  in  the  election  of  President 
of  the  United  States'or  of  Vice-President  of  the  United  States. 

S.  B.  CONOVER, 
A.  A.  SARGENT, 
JOHN  SHERMAN, 
H.  M   TELLER, 

Senators. 

WILLIAM  W'OODBURN, 
MARK  H.  DUNNELL, 
GEO.  W.  McCRART, 
JOHN  A.  KASSON, 
Members  Rouse  of  Representatives. 

OBJECTION  TO  No.  3. 

The  undersigned  object  to  the  last  papor  read,  purporting  to  be  a  certificate  of 
electors  and  of  electoral  votes  of  the  State  of  Florida,  and  to  the  counting  of  tho 
votes  named  therein : 

1st.  Because  the  eame  is  not  certified  as  required  by  the  Constitution  and  laws 
of  tho  United  States — the  certificate  being  by  an  officer  not  holding  the  office  of 
governor  or  any  other  oflico  in  said  State  with  authority  in  the  premises  at  tho 
time  when  the  electors  were  appointed,  nor  at  the  time  when  the  functions  of  the 
electors  were  exercised,  nor  until  the  duties  of  electors' had  been  fully  discharged 
by  the  lawful  college  of  electors  having  tho  certificates  of  the  governor  of  Florida 
at  the  time,  and  the  action  of  said  lawful  college  duly  transmitted  to  the  Presi 
dent  of  the  Senate  as  required  by  law. 

2d.  Because  the  proceedings  as  recited  therein  as  certifying  the  qualifications  of 
the  persons  therein  claiming  to  be  electors  are  ex  pout  facto,  and  are  not  competent 
under  tho  law  as  ccrtifying'any  right  in  the  said  Call,  Yonge,  Hilton,  and  Bullock, 
to  cast  the  electoral  vote  of  tho  said  State  of  Florida. 

3d.  Because  the  said  proceedings  and  certificates  are  null  and  void  of  effect  as 
retroactive  proceedings. 

A.  A.  SARGENT, 
JOHN  SHERMAN. 

Senators. 

JOHN  A.  KASSON",  M.  O. 
S.  A.  HURLBUT,  H.  JR. 

OBJECTION  TO  ELECTOR  HUMPHREYS. 

Tho  undersigned  object  to  the  counting  of  tho  vote  of  F.  C.  Humphreys  as  an 
elector  from  the  State  of  Florida,  upon  tho  ground  that  the  said  Humphreys  was 
appointed  a  shipping  commissioner  under  the"  Government  of  the  United  States  at 
Pensacola,  Florida,  heretofore,  set.,  on  tho  3d  day  of  December,  1872,  and  qualified 
as  such  thereafter,  set.,  on  the  9th  day  of  December,  1S72,  and  continued  to  hold  the 
said  office  continuously  from  the  said  last-named  day  until  and  upon  the  7th  day  of 
November,  1876,  and  thereafter  until  and  upon  the  6th  day  of  December  1(370 
Wherefore,  and  by  reason  of  the  premises,  the  said  F.  C.  Humphreys  held,  at  the  time 
pf  his  alleged  appointment  as  an  elector  for  the  said  State,  and  at  the  time  of  cast 
ing  his  vote  as  elector  therefor,  an  office  of  trust  and  profit  under  the  United  States 
and  could  not  be  constitutionally  appointed  an  elector  as  aforesaid. 

CHAS.  W.  JONES. 

Of  the  Senate. 
CHARLES  P.  THOMPSON, 

Of  the  House. 

LOUISIANA. 

CERTIFICATE  No.  1. 

THE  UNITED  STATES  OF  AMERICA, 
STATE  OF  LOUISIANA,  EXECUTIVE  DEPARTMENT, 

Hew  Orleans,  December  0,  1876. 

I,  William  Pitt  Kellogc.  governor  of  the  State  of -Louisiana,  hereby  certify,  pur 
suant  to  tho  laws  gf  the  United  States,  that  at  a  general  election  duly  lield  iu  accord 
ance  with  law  in  the  State  of  Louisiana,  on  Tuesday,  the  seventh  day  of  November 


1876,  for  electors  for  President  and  Vice-President  of  tho  United  States,  tho  follow 
ing-named  persons  were  duly  chosen  and  appointed  electors  of  President  and  Vice- 
President  of  the  United  States,  for  the  Stato  of  Louisiana: 

William  P  Kellogg,  for  tho  State  at  largo. 

J.  Henri  Burch,  for  the  State  at  large. 

Peter  Joseph,  for  tho  first  congressional  district. 

Lionel  A.  Sheldon,  for  the  second  congressional  district. 

Morris  Marks,  for  tho  third  congressional  district. 

Aaron  B.  Levisseo,  for  tho  fourth  congressional  district 

Orlando  II.  Brewster,  for  the  fifth  congressional  district. 

Oscar  Joffrion.  for  the  sixth  congressional  district. 

In  testimony  whereof,  I  have  hereunto  affixed  my  signature  and  caused  the  seal 
of  the  State  to  be  attached,  at  tho  city  of  New  Orleans,  this  sixth  day  of  Decem 
ber,  in  tho  year  of  our  Lord  one  thousand  eight  hundred  and  seventy-six,  and  in 
the  year  of  tho  Independence  of  tho  United  States  of  America  the  one  hundred  and 
first. 

WM.  P.  KELLOG( 

By  the  governor : 
'[SEAL.]     P.  G.  DESLONDE, 

Secrctari/  of  State. 


THE  UNITED  STATES  OF  AMERICA, 

STATE  OF  LOUISIANA,  STATE-HOUSE, 

New  Orleans,  December  6,  1876. 

We,  the  electors  of  President  and  Vi co-President  of  the  United  States,  for  tho 
State  of  Louisiana,  do  hereby  certify,  that  on  this,  the  sixth  day  of  December,  in 
the  year  of  our  Lord,  eighteen  hundred  and  seventy-six,  wo  proceeded  to  vote  by 
ballot  for  President  of  the  United  States,  on  tho  date  above,  that  Rutherford  B. 
Hiiyes,  of  the  State  of  Ohio,  received  eight  votes  for  President  of  the  United  States, 
being  all  tho  votes  cast :  and  that  we  then  immediately  proceeded  to  vote  by  ballot 
for  Vice-Presideut  of  the  United  States,  whereupon  William  A.  Wheeleri  of  the 
State  of  New  York,  received  eight  votes  for  Vice-President  of  the  United  States, 
being  all  the  votes  cast. 

In  testimony  whereof,  we,  said  electors,  have  hereunto  signed  our  names,  on  tl  -i 
tho  tirst  Wednesday,  being  the  sixth  day  of  December,  in  the  year  of  our  Lusd 
eighteen  hundred  and  seventy-six,  and  or  the  Independence  of  the  United  States 
the  one  hundred  and  first. 

WILLIAM  P.  KELLOGG. 

J.  HENRI  BURCH. 

PETER  JOSEPH. 

LIONEL  A.  SHELDON. 

MORRIS  MARKS. 

AARON  B.  LEVISEE. 

ORLANDO  H.  BREWSTER. 

OSCAR  JOFFRION. 

UNITED  STATES  OF  AMERICA, 

State  of  Louisiana.  City  of  New  Orleans : 

Be  it  remembered,  that  on  this  Wednesday,  the  sixth  day  of  December,  A.  D. 
eighteen  hundred  and  seventy-six,  that  the  following-named  persons,  bavins:  been 
duly  chosen  and  appointed  by  the  people  of  the  State  of  Louisiana  electors  of  Pres 
ident  and  Vice-President  of  the  United  States,  according  to  the  certificate  of  Will 
iam  P.  Kellogg,  governor  of  the  Stato  of  Louisiana,  hereto  attached,  namely:  Will 
iam  P.  Kellogg,  elector  for  the  State  at  large  ;  J.  Henri  Burch,  elector  for  the  State 
at  large  ;  Peter  Joseph,  elector  for  the  first  congressional  district ;  Lionel  A  Shel 
don,  elector  for  tho  second  congressional  district;  Morris  Marks,  elector  for  the 
third  congressional  district;  Oscar  Joffrion,  elector  for  the  sixth  congressional 
district,  met  at  the  State-house,  at  tho  city  of  New  Orleans,  the  seat  of  government 
of  the  State  of  Louisiana,  as  required  bylaw,  on  tho  first  Wednesday  of  December, 
A.  IX  eighteen  hundred  and  seventy-six,  being  the  sixth  day  of  said  mouth. 

Tho  certificate  of  the  governor  was  read,  and  the.  following  persons  answered  to 
their  names:  William  P.  Kellogg,  J.  Henri  Burch,  Peter  Joseph,  Lionel  A.  Shel 
don,  Morris  Marks,  Oscar  Joffrion.  Not  answering:  Aaron  B.  Levisee  and  Or 
lando  H.  Brewster. 

On  motion  of  Peter  Joseph,  J.  Henri  Burch  was  elected  to  preside ;  and  on  mo 
tion  of  Oscar  Joffrion,  Morris  Marks  was  appointed  secretary. 

On  motion  of  Lionel  A.  Sheldon,  a  recess  was  taken  till  the  hour  of  three-thirty 
p.  m.,  when  tho  electors  re-assembled. 

On  tho  roll  being  called,  it  was  found  that,  Aaron  B.  Levisee  and  Orlando  H. 
Brewster  were  not  present.  At  the-  hour  of  four  p.  m.  the  said  Aaron  B.  Levisee 
and  Orlando  H.  Brewster  having  failed  to  attend,  the  electors  present  proceeded 
to  supply  such  vacancies  by  ballot,  in  accordance  with  the  statute  of  the  State  of 
Louisiana  in  such  case  made  and  provided,  which  is  in  words  and  figures  as 
follows : 

"If  any  one  or  more  of  tho  electors  chosen  by  the  people  shall  fail  from  any 
cause  whatever  to  attend  at  the  appointed  place  at  the  hour  of  four  p.  m.  of  tho 
day  prescribed  for  their  meeting,  it  shall  be  tho  duty  of  the  other  electors  imme 
diately  to  proceed  by  ballot  to  supply  such  vacancy  or  vacancies." 

Lionel  A.  Sheldon  and  Peter  Joseph  were  appointed  tellers,  when,  after  ballot 
ing,  it  was  found  that  Aaron  B.  Lcviseo  received  six  votes,  being  all  tho  votes  cast 
to  "supply  the  vacany  in  the  fourth  congressional  district  occasioned  by  tho  fail 
ure  of  Aaron  B.  Levisee  to  attend,  and  Orlando  H.  Brewster  received  six  votes, 
being  all  the  votes  cast  to  supply  the  vacancy  in  the  fifth  congressional  district 
occasioned  by  the  failure  of  Orlando  H.  Biewster  to  attend.  The  said  Aaron  B. 
Levisee  and  Orlando  H.  Brewster  were  thereupon  declared  elected  to  supply  tho 
vacancies  in  tho  fourth  and  fifth  congressional  districts  respectively,  and  being 
sent  for,  ^oon  after  appeared  and  wpre  in  attendance  as  electors. 

The  said  electors  then  proceeded  to  vote  by  ballot  for  President  of  the  United 
States,  when  William  P.  Kellogg  and  Lionel  A.  Sheldon  were  appointed  tellers, 
and  upon  counting  the  ballots'for  President  of  tho  United  States,  Rutherford  B. 
Hayes,  of  the  State  of  Ohio,  did  receive  eight  votes  for  President  of  the  United 
States,  being  all  tho  votes  cast. 

Tho  said  electors  then  proceeded  to  vote  by  ballot  for  Vice-Prc.sident  of  the 
United  States,  when  Peter  Joseph  and  Osc:;r  Joffriou  were  appointed  tellers  and 
upon  counting  the  votes  for  Viee-President  of  the  United  States,  William  A. 
Wherler,  of  the  State  of  New  York,  did  receive  eight  votes  for  Vice-President  of 
the  United  States,  being  all  the  votes  cast,  whereupon  the  said  electors  signed 
three  certificates,  one  of  which  is  hereto  attached,  which  certificates  are  herewith 
placed  separately  in  envelopes  and  sealed  up  carefully,  and  on  each  envelope  was 
indorsed  that  "  The  within  contains  a  list  of  all  tho  votes  cast  by  the.  electors  for 
tho  State  of  Louisiana  for  President  and  Vice-President  of  tho  United  States,'1  one 
of  which  is  given  to  tho  person  appointed  to  convey  the  vote  to  the  President  of 
the  Senate  of  the  United  States,  and  another  indorsed  in  the  same  way  is  put  in  the 
post  office,  and  tho  other  deposited  with  the  judge  of  the  district  court  of  tho 
United  States  for  the,  district  of  Louisiana. 

On  motion  of  Peter  Joseph,  the  electors  proceeded  to  appoint  a  person  to  take 
charge  of  and  deliver  to  the  President  of  the  Senate  at  the  seat  of  tho  Government, 
before  the  tirst  Wednesday  hi  January  next  ensuing,  one  of  said  certificates,  when 
Thomas  C.  Anderson  was  appointed  to  the  above  service,  and  said  electors  made 
and  signed  a  certificate  of  such  appointment  in  tho  following  form: 


ELECTOEAL  COMMISSION. 


293 


UNITED  STATES  OF  AMERICA,  STATE  OF  LOUISIANA,  STATE-HOUSE, 

New  Orleans,  Wednesday,  December  G,  1876. 

"We,  the  undersigned  electors  of  President  and  Vice-President  of  the  United 
States,  for  the  State  of  Louisiana,  do  hereby  appoint  Thomas  C.  Anderson  to  take 
charge  of  and  deliver  to  the  President  of  the  Senate  of  the  United  States  at  the  seat 
of  Government  at  Washington,  D.  C.,  before  the  first  Wednesday  in  January  nest, 
one  of  the  certificates  of  the  votes  cast  by  the  undersigned  for  President  ami  Vice- 
Presidentof  the  United  States,  on  Wednesday,  the  sixth  day  of  December,  A.  D.  1876. 
In  testimony  whereof  we  have  hereunto  signed  our  names,  on  this  sixth  day  of 
December,  in  the  year  of  our  Lord  eighteen  hundied  and  seventy-six,  and  of  'the 
Independence  of  the  United  States  of  America  the  one  hundred  and  first. 

WILLIAM  P.  KELLOGG. 
J.  HENRI  BURCH. 
PETER  JOSEPH. 
LIONEL  A.  SHELDON. 
MORRIS  MARKS. 
A.  B.  LEVISEE. 
O.  H.  BREWSTER. 
OSCAR  JOFFRION. 

UNITED  STATES  OF  AMERICA,  STATE  OF  LOUISIANA, 

OFFICE  SECRETARY  OF  STATE, 
New  Orleans,  December  6,  1876. 


file  among  the  records  of  my  office,  and  is  still  in  force  and  unrepcaled : 

'•SEC.  8.  Be  it.  further  enacted,  ttc.,  That  if  any  one  or  more  of  the  electors  chosen 
by  the  people  shall  fail  from  any  cause  whatever  to  attend  at  the  appointed  place 
at  the  hour  of  four  p.  m.  of  the  day  prescribed  for  their  meeting,  it  shall  be  the 
duty  of  the  other  electors  immediately  to  proceed  by  ballot  to  supply  such  vacancy 
or  vacancies." 

In  testimony  whereof  I  have  hereunto  set  my  hand  and  caused  the  seal  of  the 
State  to  be  affixed  this  sixth  day  of  December,  in  the  year  of  our  Lord  eighteen  hun 
dred  and  seventy-six,  and  of  the  Independence  of  the  United  States  the  one  hundred 
and  first. 

[SEAL.]  P.  G.  DESLONDE,  . 

Secretary  of  State. 

UNITED  STATES  OF  AMERICA,  STATE  OF  LOUISIANA, 

OFFICE  SECRETARY  OF  STATE, 
New  Orleans,  December  6th,  1876. 

I,  P.  G.  Deslonde,  secretary  of  state  for  the  State  of  Louisiana,  hereby  certify 
that  at  a  general  election  held  in  the  State  of  Louisiana,  on  Tuesday,  the  seventh  day 
of  November,  eighteen  hundred  and  seventy-six,  the  following-named  persons  were 
elected,  chosen,  and  appointed  electors  for  President  and  Vice-President  of  the 
United  States,  as  appears  from  the  returns  of  said  election  now  on  fiio  in  my  office, 
and  which  have  been  duly  promulgated  according  to  law  by  the  legal  returing  offi 
cers  of  the  State,  to  wit :  William  P.  Kellogg,  for  the  State  at  large  ;  J.Henri  Burch, 
for  the  State  at  large  ;  Peter  Joseph,  for  the  first  congressional  district ;  Lionel  A. 
Sheldon,  for  the  second  congressional  district ;  Morris  Marks  for  the  third  congres 
sional  district ;  Aaron  B.  Levissee,  for  the  fourth  congressional  district;  Orlando 
H.  Brewster,  for  the  fifth  congressional  district ;  Oscar  Joffrion,  for  the  sixth  con 
gressional  district.  And  I  further  certify  that  the  names  appended  to  the  certifi 
cates  of  votes  cast  for  President  of  the  United  States  and  for  Vice-President  of  the 
United  States,  on  Wednesday,  the  sixth  day  of  December,  A.  D.  eighteen  hundred 
and  seventy-six,  and  to  the  proceu-verbal  of  the  proceedings  of  said  electors  accom 
panying  said  certificates,  are  the  true  and  proper  signatures  of  the  before-mentioned 
persons  elected,  chosen,  and  appointed  electors  of  President  and  Vice-President  of 
the  United  States  for  the  State  of  Louisiana. 

In  testimony  whereof  I  have  hereunto  signed  my  name  and  caused  the  seal  of 
the  State  to  be  affixed  this  sixth  day  of  December,  in  the  year  of  our  Lord  eighteen 
hundred  and  seventy-six,  and  of  the  Independence  of  the  United  States  the  one  hun 
dred  and  first. 

[SEAL.]  p.  G.  DESLONDE, 

Secretary  of  State. 

CERTIFICATE  No.  2. 

THE  UNITED  STAGES  OF  AMERICA, 
STATE  OF  LOUISIANA,  EXECUTIVE  DEPARTMENT, 

New  Orleans,  December  6,  1876. 


ber,  1876,  for  electors  for  President  and  Vice-Presidentof  the  United  States,  the  fol 
lowing-named  persons  were  duly  chosen  and  appointed  electors  of  President  and 
Vice-President  of  the  United  States  for  the  State  of  Louisiana  : 

William  P.  Kellogg,  for  the  State  at  large. 

J.  Henri  Burch,  for  the  State  at  large. 

Peter  Joseph,  for  the  first  congressional  district. 

Lionel  A.  Sheldon,  for  the  second  congressional  district. 

Morris  Marks,  for  the  third  congressional  district. 

Aaron  B.  Levissee,  for  the  fourth  congressional  district. 

Orlando  H.  Brewster,  for  the  fifth  congressional  district. 

Oscar  Joffrion,  for  the  sixth  congressional  district. 

In  testimony  whereof  I  have  hereunto  affixed  my  signature  and  caused  the  seal 
of  the  State  to  be  attached,  at  the  city  of  New  Orleans,  this  sixth  day  of  Decem 
ber,  in  the  year  of  our  Lord  one  thousand  eight  hundred  and  seventy-six,  and  in 
the  year  of  the  Independence  of  the  United  States  of  America  the  one  hundred 
and  first. 

WM.  P.  KELLOGG. 

By  the  governor : 
[FEAL.]       P.  G.  DESLONDE, 

Secretary  of  State. 

THE  UMTED  STATES  OF  AMERICA, 

STATE  OF  LOUISIANA,  STATE-HOUSE, 

New  O i  leans,  December  6,  1876. 

We,  the  electors  of  President  and  Vice-President  of  the  United  States,  for  the 
State  of  Louisiana,  do  hereby  certify  that  on  this  the  sixth  day  of  December,  in  the 
year  of  our  Lord  one  thousand  eight  hundred  and  seventy-six,  we  proceeded  to 
vote  by  ballot  for  President  of  the  United  States,  on  the  date  above,  that  Ruther 
ford  B.  Hayes,  of  the  State  of  Ohio,  received  8  votes  for  President  of  the  United 
States,  being  all  the  votes  cast;  and  that  we  then  immediately  proceeded  to  vote 
by  ballot  for  Vice-President  of  the  United  States,  whereupon  William  A.  Wheeler, 
of  the  State  of  New  York,  received  8  votes  for  Vice-President  of  the  United  States, 
being  all  the  votes  cast. 

In  testimony  whereof  we,  said  electors,  have  hereunto  signed  our  names,  on  this 
the  first  Wednesday,  being  the  sixth  day  of  December,  in  the  year  of  our  Lord 


eighteen  hundred  and  seventy-six,  and  of  the  Independence  of  the  United  States 
the  one  hundred  and  first. 

WILLIAM  P.  KELLOGG. 

J.  HENRI  BURCH. 

PETER  JOSEPH. 

LIONEL  A.  SHELDON. 

MORRIS  MARKS. 

AARON  B.  LEVISSEE. 

ORLANDO  H   BREWSTER. 

OSCAR  JOFFRION. 

UNITED  STATES  OF  AMERICA, 

State  of  Louisiana,  City  of  New  Orleans  : 


Be  it  remembered  that  on  this  Wednesday,  the  sixth  day  of  December  A  D 
ighteen  hundred  and  seventy  six,  that  the  following-named  persons,  having  been 


district,  met  at  the  State-house,  at  the  city  of  New  Orleans,  tbe  scat  of  government 
of  the  State  of  Louisiana,  as  required  bylaw,  on  the  first  Wednesday  of  December 
A.  D.  eighteen  hundred  and  seventy-six,  being  the  sixth  day  of  said  month. 

The  certificate  of  the  governor  was  read,  and  the  following  persons  answered  to 
their  names:  William  P.  Kellogg,  J.  Henri  Burch,  Peter  Joseph,  Lionel  A.  Shel 
don,  Morris  Marks,  Oscar  Joffrion.  Not  answering :  Aaron  B.  Levisseo  and  Orlando 
H.  Brewster. 

On  motion  of  Peter  Joseph,  J.  Henri  Burch  was  elected  to  preside;  and  on  mo 
tion  of  Oscar  Joffrion,  Morris  Marks  was  appointed  secretary. 

On  motion  of  Lionel  A.  Sheldon,  a  recess  was  taken  till  th'o  hour  of  three-thirty 
p.  m.,  when  the  electors  re-assembled. 

On  the  roll  being  called,  it  was  found  that  Aaron  B.  Levissee  and  Orlando  H.  Brew 
ster  were  not  present.  At  the  hour  of  four  p.  m.  the  said  Aaron  B.  Levissee  and  Or 
lando  H.  Brewster  having  failed  to  attend,  the  electors  present  proceeded  to  supply 
such  vacancies  by  ballot,  in  accordance  with  the  statute  of  the  State  of  Louisiana 
in  such  cases  made  and  provided;  which  is  in  words  and  figures  as  follows: 

' '  If  any  one  or  more  of  the  electors  chosen  by  the  people  shall  fail  from  any  cause 
whatever  to  attend  at  the  appointed  place  at  the  hour  of  four  p.  m.  of  the  day  pre 
scribed  for  their  meeting,  it  shall  be  the  duty  of  the  other  electors  immediately  to 
proceed  by  ballot  to  supply  such  vacancy  or  vacancies." 

Lionel  A.  Sheldon  and  Peter  Joseph  were  appointed  tellers,  when,  after  balloting, 
it  was  found  that  Aaron  B.  Levissee  received  six  votes,  being  all  the  votes  cast,  to 
supply  the  vacancy  in  the  fourth  congressional  district  occasioned  by  the  failure  of 
Aaron  B.  Levissee  to  attend,  and  Orlando  H.  Brewsterrcceived  six  votes,  being  all  the 
votes  cast,  to  supply  the  vacancy  in  the  fifth  congressional  district  occasioned  by 
the  failure  of  Orlando  H.  Brewster  to  attend.  The  said  Aaron  B.  Levissee  and  Or 
lando  H.  Brewster  wore  thereupon  declared  elected  to  supply  the  vacancies  in  the 
fourth  and  fifth  congressional  districts  respectively,  and  being  sent  for,  soon  after 
appeared  and  were  in  attendance  as  electors. 

The  said  electors  then  ptoceeded  to  vote  by  ballot  for  President  of  the  United 
States,  when  William  P.  Kellogg  and  Lionel  A.  Sheldon  were  appointed  tellers,  and 
upon  counting  the  ballots  for  President  of  the  United  States.  Rutherford  B.  Hayes, 
of  the  State  of  Ohio,  did  received  8  votes  for  President  of  the  United  States,  being 
all  the  votes  cast. 

The  said  electors  then  proceeded  to  vote  by  ballot  for  Vice-President  of  the  United 
States,  when  Peter  Joseph  and  Oscar  Joffrion  were  appointed  tellers,  and  upon 
counting  the  votes  for  Vice-President  of  the  United  States,  William  A.  Wheeler 
of  the  State  of  New  York,  did  receive  8  votes  for  Vice-President  of  the  United 
States,  being  all  the  votes  cast,  whereupon  the  said  electors  signed  three  certificates, 
one  of  which  is  hereto  attached,  which  certificates  are  herewith  placed  separately 
in  envelopes  and  sealed  up  carefully,  and  on  each  envelope  was  indorsed  that  "The 
within  contains  a  list  of  all  the  votes  cast  by  the  electors  for  the  State  of  Louisiana 
for  President  and  Vice-President  of  the  United  States,"  one  of  which  is  given  to 
theperson  appointed  to  convey  the  vote  to  the  President  of  the  Senate  of  the  United 
States,  and  another  indorsed  in  the  same  way  is  put  in  the  post-office,  and  the  other 
deposited  with  the  judge  of  the  district  court  of  the  United  States  for  the  district 
of  Louisiana. 

On  motion  of  Peter  Joseph,  the  electors  proceeded  to  appoint  a  person  to  take 
charge  of  and  deliver  to  the  President  of  the  Senate,  at  the  seat  of  the  Governmeut, 
before  the  fii'st  Wednesday  in  January  next  ensuing,  one  of  said  certificates,  when 
Thomas  C.  Anderson  was  appointed  to  the  above  service,  and  said  electors  made 
and  signed  a  certificate  of  such  appointment  ha  the  following  form : 

STATE  OF  LOUISIANA,  STATE- HOUSE,  UNITED  STATES  OF  AMERICA, 

New  Orleans,  Wednesday,  December  6,  1876. 

We,  the  undersigned  electors  of  President  and  Vice-President  of  the  United 
States,  for  the  State  of  Louisiana,  do  hereby  appoint  Thomas  C.  Anderson  to  take 
charge  of  and  deliver  to  the  President  of  the  Senate  of  the  United  States,  at  the 
seat  of  Government  at  Washington,  D.  C.,  before  the  first  Wednesday  in  January 
next,  one  of  the  certificates  of  the  votes  cast  by  the  undersigned  for  President  and 
Vice-President  of  the  United  States,  on  Wednesday,  the  sixth  day  of  December, 
A.  D.  1876. 

In  testimony  whereof  we  have  hereunto  signed  our  names  on  this  sixth  day  of 
December,  in  the  year  of  our  Lo-d  one  thousand  eight  hundred  aud  seventy-six, 
and  of  the  Independence  of  the  United  States  of  America  the  one  hundred  and 
first. 

WILLIAM  P.  KELLOGG. 

J.  HENRI  BURCH. 

PETER  JOSEPH. 

LIONEL  A.  SHELDON. 

MORRIS  MARKS. 

A.  B.  LEVISSEE. 

O.  H.  BREWSTER. 

OSCAR  JOFFRION. 

UNITED  STATES  OF  AMERICA,  STATE  OF  LOUISIANA, 

OFFICE  SECRETARY  OF  STATE, 
New  Orleans,  December  6th,  1876. 

I,  P.  G.  Deslonde,  secretary  of  state  of  the  State  of  Louisiana,  hereby  certify  that 
the  following  is  a  true  and  correct  extract  from  an  act  of  the  Legislature  of  the 
State  of  Louisiana,  being  act  No  one  hundred  and  ninety-three,  approved  Octo 
ber  thirtieth,  eighteen  hundred  and  sixty-eight,  the  original  of  which  act  is  on  file 
among  the  records  of  my  office,  and  is  still  in  force  and  uu repealed : 

"SEC.  8.  Be  it  further  enacted,  <£c.,  That  if  any  one  or  more  of  the  electors  chosen 
by  the  people  shall  fail  from  any  cause  whatever  to  attend  at  the  appointed  place 
at  the  hour  of  four  p.  m.  of  the  day  prescribed  for  their  meeting,  it  shall  be  the  duty 
of  the  other  electors  immediately  to  proceed  by  ballot  to  supply  such  vacancy  or 
vacancies." 

In  testimony  whereof  I  have  hereunto  set  my  hand  and  caused  the  seal  of  the 


294 


ELECTORAL  COMMISSION. 


State  to  bo  affixed  this  sixth  day  of  December,  A.  D.  eighteen  hundred  and  seven 
ty-six,  anil  of  the  Independence  of  the  United  States  the  one  hundred  and  first. 
[SEAL.]  P.  G.  DESLONDE, 

Secretary  of  State. 

UNITED  STATES  OF  AMERICA,  STATE  OF  LOUISIANA, 

OFFICE  SECKETAKY  or  STATE, 
New  Ofleann,  Jjecember  (Jth,  1876. 

I,  P.  G.  Deslonde,  secretary  of  state  for  the  State  of  Louisiana,  hereby  certify 
that  at  a  general  election  held  in  the  State  of  Louisiana,  on  Tuesday,  the  seventh 
day  of  .November,  eighteen  hundred  and  seventy-six,  the  following-named  per 
sons  were  e  ected,  chosen,  and  appointed  electors  for  President  and  Vic  -Presi 
dent  of  the  United  States,  as  appears  from  the  returns  of  said  election  now  on  lile 
in  my  office,  and  which  have  bceii  duly  promulgated  according  to  law  by  the  legal 
returning  olficers  of  the  State,  to  wit :  William,  P.  Kellogg,  for  the  State  at  large  ; 
J.  Henri  Burch,  for  the  State  at  largo ;  Peter  Joseph,  for  the  first  congressional 
district ;  Lionel  A.  Seldon,  for  the  second  congressional  district ;  Morris  Marks, 
for  the  third  congressional  district ;  Aaron  B.  Levissee,  for  the  fourth  congres 
sional  district;  Oilando  11.  Brewster,  for  the  lif*h  congressional  district;  Oscar 
Joffr  ion,  for  the  sixth  congressional  district.  And  I  further  certify  that  the  names 
appended  to  the  certificates  of  votes  cast  for  President  of  the  United  States,  and 
for  Vice-President  of  the  United  States,  on  Wednesday,  the  six  h  day  of  December, 
A.  D.  eigh.eou  hundred  and  seventy-six,  and  to  the  proeeis  v.rbiti  of  tlu  proceed 
ing  of  said  electors  accompanying  said  certificate,  are  the  true  and  proper  sig- 
iialuies  of  the  before-mentioned  persons  elected,  chosen,  and  appointed  electors 
of  President  and  V ice-President  of  the  United  Status  for  tuo  State  of  Louisiana. 

In  testimony  whereof  1  have  hereunto  signed  my  name  and  causeil  the  seal  of  the 
State  to  bo  affixed  this  sixth  day  of  December,  A.  D.  eighteen  hundred  and  seven- 
tv-six,  and  of  the  Independence  of  the  United  States  the  one  hundred  and  lirst. 
"  [SEAL.]  P.  G.  DESLONDE, 

Secretary  of  State. 

CERTIFICATE  No.  3. 
UNITED  STATES  OF  AMERICA, 

State  of  Luumiana : 

This  is  to  certify  that  the  following  is  a  true  and  correct  list  of  the  names  of 
the  electors  of  the  President  autl  Vice-President  of  the  United  Siates  for  the  next 
ensuing  regular  term  of  the  respective  oliices  thereof,  being  electors  duly  and  le 
gally  appointed  by  and  for  the  State  of  Louisiana,  having  each  received  a  majority 
ot  the  votes  cast  for  electors  at  i ho  election  in  the  State  of  Louisiana  held  in  ac 
cordance  with  law  ;  this  certificate  being  furnished  as  directed  by  law,  by  the  ex 
ecutive  authority  of  said  State  of  Louisiana. 

List  of  names  of  electors:  Robert  p.  Wickliffe,  John  McEnery,  Louis  St.  Mar 
tin,  Felix  P.  Poche,  K.  A.  Cross,  AlcibiadoDeBlaiio,  II.  G.  Cobb,"Williani  A.  Seay. 

In  witness  whereof  I  have  hereunto  signed  my  name  and  caused  the  great  seal 
of  the  State  of  .Louisiana  to  be  atlixed,  at  the  city  of  New  Orleans,  the  seatpf  gov 
ernment  of  said  State,  on  this  6th  December,  167(5,  being  the  first  Wednesday  in 
said  mouth  of  December,  in  the  year  of  our  Lord  one  thousand  eight  hundred  and 
seventy -six,  and  of  the  Independence  of  the  United  States  the  one  hundred  and 
first. 

[6EAL.]  JOHN  McENERY, 

Governor  of  the  /State  of  Louisiana. 

STATE  OF  LOUISIANA,  ss: 

We,  the  undersigned,  electors  of  President  and  Vice-President  of  the  United 
States  of  America  for  the  next  ensuing  regular  term  of  the  respective  offices 
thereof,  being  e  ectors  duly  and  legally  appointed  by  and  for  the  State  of  Louisiana, 
as  appears  by  the  annexed  listol  electors,  made  certified,  and  delivered  to  us  by 
the  direction  of  the  executive  of  the  State,  having  met  and  convened  in  the  city  of 
Ni  w  Oi  leans  aud  the  seat  of  government,  at  the  hall  of  house  of  representatives, 
iu pursuance- of  the  laws  ot  the  United  States,  and  also  in  pursuance  of  the  laws 
of  the  State  of  Louisiana,  on  the  first  Wednesday,  the  sixth  day  of  December,  in  the 
year  of  our  Lord  one  thousa  id  eight  humL  ed  aud  seventy -six — 

Do  hereby  cenily,  that  being  so  assembled  and  clu'y  organized,  we  proceeded  to 
vote  by  bailot,  ana  balloted  first  for  such  President,  and  then  for  such  Vice-Presi- 
deiit,  by  uisiiuct  ballots. 

And  we  further  certify  that  the  following  are  two  distinct  lists;  one  of  the 
votes  for  President,  and  the  other  of  the  votes  for  Vice-President. 

List  of  persons  voted  for  as  President,  with  the  number  of  votes  for  each. 


Names  of  persons  voted  for. 

Number  of  votes. 

Samuel  J.  Tilden,  of  the  State  of  New  York  

Lint  of  all  persons  voted  for  as  Vice-President,  with  the  number  of  votes  for  each. 


Names  of  persons  voted  for. 

Number  of  votes. 

Thomas  A.  Hendricks,  of  the  State  of  Indiana  

In  witness  whej-eof  wo  have  hereunto  set  our  hands. 
Done  at  the  hall  of  the  house  of  representatives,  in  the  city  of  New  Orleans,  and 
State  of  Louisiana,  the  sixth  day  of  December,  in  the  yearof  our  Lord  one  thousand 
eight  hundred  aud  seventy  six,  and  of  the  United  States  of  America  the  one  hun 
dred  and  first. 

ROBERT  C.  WICKLIFFE. 

JOHN  McENERY. 

L.  ST.  MARTIN. 

F.  P.  POCHE. 

ALCIBIADE  DE  BLANC. 

K.  A.  CROSS. 

R.  G.  COBB. 

WM.  A.  SEAY. 

[Indorsement:] 

We  hereby  certify  that  the  lists  of  all  votes  of  the  State  of  Louisiana  given 
for  President,  aud  of  all  the  votes  given  for  Vice-President  are  contained  herein. 

ROBERT  C.  WICKLIFFE. 
JOHN  McEMERY. 
L.  ST.  MARTIN. 
ALCIBIADE  DE  BLANC. 
F.  P.  POCHE. 
R   G.  COBB. 
WM.  A.  SEAY. 
K.  A.  CROSS. 
To  the  PRESIDENT  OF  TIIF,  SENATE, 

At  the  neat  of  Government,    Washington,  District  of  Columbia. 


OBJECTION  No.  1. 

The  undersigned  Senators  and  members  of  the  House  of  Representatives  of  the 
United  States  object  to  the  lists  of  the  names  of  electors  made  and  certified  by  Will 
iam  P.  Kellogg,  claiming  to  be,  but  who  was  not,  the  lawful  governor  of  the  State  of 
Louisiana,  aud  to  the  elector  al  votes  of  said  State,  signed  by  W.  P.  Kellogg,  J.  H. 
Burch,  Peier  Joseph,  L.  A.  Sheldon,  Morris  Marks.  A.  B.  Levissee,  O.  H.  Brewster, 
and  Oscar  Joffroiu,  being  the  two  several  certificates,  the  first  and  third  presented 
by  the  President  of  the  Senate  to  the  two  Houses  of  Congress  in  joint  convention,  for 
the  reasons  following : 

Because  on  the  7th  day  of  November,  187G,  there  was  no  law,  joint  resolution,  or 
other  act  of  the  Legislature  of  the  State  of  Louisiana  in  force  directing  the  manner 
in  which  electors  for  said  State  should  be  appointed. 

II. 

Because,  if  any  law  existed  in  the  State  of  Louisiana  on  the  7th  day  of  November, 
18~.6,  directing  the  manner  of  the  appointment  of  electors,  it  was  an  act  of  the 
Legislature  which  directed  that  electors  should  be  appointed  by  the  people  of  the 
State  in  their  primary  capacity  at  an  election  to  bo  held  on  a  day  certain,  at  partic 
ular  places  and  in  a  certain  way ;  aud  the  people  of  the  State,  in  accordance  with 
the  legislative  direction,  exercised  the  power  vested  in  them  at  an  election  held  in 
said  State,  November  7th,  1876,  in  pursuance  of  said  act  and  of  the  laws  of  the 
United  States,  and  appointed  John  McEnery,  R.  C.  Wickliffe,  L.  St.  Martin,  F.  P. 
Poche,  A.  De  Blanc,  W.  A.  Seay,  R.  G.  Cobb,  and  K.  A.  Cross,  to  be  electors,  by  a 
majority  for  each  of  six  thousand  aud  upward  of  all  the  votes  cast  by  qualified 
voters  for  electors  at  said  election,  and  said  electors  received  a  certiiicate  of  their 
due  appointment  as  such  electors  from  John  McEnery,  who  was  then  the  rightful 
and  lawful  governor  of  said  State,  under  the  seal  thereof ;  ami  thereupon  the  said 
McEnery,  Wickliffe,  St.  Martin.  Poche,  De  Blanc,  Seay.  Cobb,  and  Cross  became 
and  were  vested  with  the  exclusive  authority  of  electors  for  the  State  of  Louisiana, 
aud  no  other  person  or  persons  had  or  could  have  such  authority  or  power,  nor  was 
it  within  the  legal  power  of  any  State  or  Federal  officer,  or  any  other  person,  to  re 
voke  the  power  bestowed  on  the  said  McEnery,  Wicklitl'e,  St.  Martin,  Poche,  De 
Blanc,  Seay,  Cobb;  and  Cross,  or  to  appoint  other  electors  in  their  stead,  or  to  im 
pair  their  title  to  the  olfices  to  which  the  people  had  appointed  them. 

III. 

Because  the  said  Kellogg,  Burch,  Joseph,  Sheldon,  Marks.  Levissee.  Brewster, 
and  Joffroiu  were  not,  nor  was  either  of  them,  duly  appointed  an  elector  by  the 
State  of  Louisiana  in  the  manner  directed  by  the  constitution  and  laws  of  said 
State  and  of  the  United  States,  and  the  lists  of  names  of  electors  made  and  certified 
by  the  said  William  P.  Kellogg,  claiming  to  be,  but  not  being,  Governor  of  said 
State,  were  false  in  fact,  and  fraudulently  made  and  certified  by  said  Kellogg,  with 
full  knowledge  at  the  time  ;  that  the  said  Kellogg,  Burch,  Joseph,  Sheldon,  Marks, 
Levissee,  Brewster,  and  Joffrion  were  not  duly  Appointed  electors  by  the  qualified 
voters  of  the  State,  and  without  any  examination  of  the  returns  of  the  votes  cast 
for  electors  as  required  by  the  laws  of  the  State. 

IV. 

Because  the  pretended  canvass  of  the  returns  of  said  election  for  electors  of 
President  and  Vice-President  by  J.  Madison  Wells,  T.  C.  Anderson,  G  Casanave, 
and  Louis  Kenner,  as  returning  officers  of  said  election,  was  without  jurisdiction 
and  void  for  these  reasons  : 

First.  The  statutes  •  f  Louisiana,  under  which  said  persons  claim  to  have  been 
appointed  returning  officers,  and  to  have  derived  their  authority,  gave  them  no 
jurisdiction  to  make  the  returns,  or  to  canvass  and  compile  the  statemen  of  votes 
cast  for  electors  of  Pr,  sulent  and  Vice-PresidOLt. 

Secondly.  Said  statutes,  if  construed  as  conferring  such  jurisdiction,  give  the  re 
turning  officers  power  to  appoint  the  electors,  and  are  void  as  in  conflict  with  the 
Constitution  which  requires  that  electors  shall  be  appointed  by  the  State. 

Thirdly.  Said  statutes,  in  so  far  as  they  attempt  to  confer  judicial  power,  and  to 
give  to  the  returning  officers  authority,' in  their  discretion,  to  exclude  the  state 
ments  of  votes,  and  to  punish  innocent  persons  without  trial,  by  depriving  them  of 
their  legal  ri'^ht  of  suffrage,  are  in  conflict  with  the  constitution  of  the  State  of 
Louisiana,  and  are  antiiepublican  and  in  conflict  wiih  the  Constitution  of  the 
United  States,  in  so  far  as  they  leave  it  to  the  discretion  of  the  returning oificers  to 
determine  who  are  appointed  electors. 

Fourthly.  It  said  Louisiana  statutes  shall  beheld  valid,  they  conferred  no  juris 
diction  on  said  Wells,  Anderson.  Casanave,  and  ueuner  as  a  board  of  returning 
oliici-rs  to  make  the  returns  of  said  election,  or  to  canvass  and  compile  the  state 
ments  of  voies  made  by  the  commissioners  of  said  election,  for  the  reason  that  they 
constituted  but  four  of  the  five  persons  to  whom  the  law  confided  those  duties; 
that  they  were  all  of  the  same  political  party,  and  that  there  was  a  vacancy  in  said 
board  of  returning  officers,  which  the  said  Wells,  Anderson,  Casanave,  and  Ken 
ner  failed  and  refused  to  till  as  required  b>  law 

Fifthly  Said  board  of  returning  officers  had  no  jurisdiction  to  exercise  judicial 
functions  and  reject  the  statement  of  the  votes  at  any  poll  or  voting-place,  unless 
the  foundation  for  such  jurisdiction  was  first  Inid  as  required  by  the  statute,  which 
the  papers  and  records  before  said  board  of  returning  oliieers  show  was  not  done  to 
such  an  extent  as  to  change  the  result  of  the  election  as  shown  on  the  face  of  the 
returns. 

Sixthly.  Said  returning  officers,  with  the  full  knowledge  that  a  true  and  correct 
compilation  of  the  official  statements  of  votes  legally  cast  November  7,  IS',6,  for 
presidential  electors  in  the  State  of  Louisiana,  showed  the  following  result,  to  wit : 

Vote*. 

John  McEnery 8.!,  723 

R.  C.  Wic^litlo 83.  fca<) 

L.  St.  Martin 83,  CoO 

F.  P.  Poch6 83,  4'A 

A.  De  Blanc 83,633 

W.  A.  Seay 83,812 

R.  G.  Cobb 83,530 

K.  A  Cross 83.IJ03 

W.  P.  Kellogg 77,174 

J.H.  Burch 77,162 

Peter  Joseph 74,913 

L  A.Sheldon 74,902 

Morris  Marks  75,240 

A.  B.  Levisseo 7~i,  395 

O.  H.  Brewster 75,479 

Oscar  Joffrion 75,  G 18 

And  that  said  McEnery,  Wickliffe,  St.  Martin,  Poch6,  Do  Blanc,  Seay,  Cobb,  and 
Cross  were  duly  and  lawfully  elected  electors,  illegally  and  fraudulently  changed, 
altered,  and  rejected  the  statements  of  votes  made  by  the  commissioners  of  elec 
tion  and  the  returns  of  supervisors  of  registrat  ion,  and  declared  the  following  to 
be  the  stale  of  the  vote,  to  wit : 

John  McEnery. ..  70,508 

R.  C.  Wickliffe 70,509 

L.  St.  Martin 70,553 

F.  Poche   70,335 

A.  De  Blanc 70,53(3 

W.  A.  Seay 70,525 

R.G.Cobb 70,4*1 

K.  A.  Cross 70,560 

W.  P.  Kellogg 75,135 


ELECTORAL  COMMISSION. 


295 


J.  H.  Burch 75, 127 

Peter  Joseph 74,  014 

L.  A.  Sheldon 74^  o  J7 

Morris  Marks. 74',  413 

A.  U.  Levissee , 74,  093 

O.  II.  Brewster 74,  0 17 

Oscar  Joffrion 74,736 

And  said  returning  officers  thereupon  falsely  and  fraudulently  certified  that  said 
Kellogg,  Burch,  Jbbeph,  Sheldon,  Marks,  Levissee,  Brewster,  and  Jotfrion  were 
duly  elected  electors,  when  the  fact  was  that,  omitting  the  statements  of  votes 
illegally  withheld  by  supervisors,  those  before  the  returning  officers,  which  it  was 
their  duty  to,  but  which  they  did  not  canvass  and  compile,  showed  majorities 
for  McEuery,  Wicklili'e,  St.  Martin,  Poche,  De  Blanc,  Seay,  Cobb,  and  Cross  rang 
ing  from  three  thousand  four  hundred  and  h'f ty-niue  to  six  thousand  four  hundred 
and  five. 

5.  That  said  returning  officers,  before  making  any  declaration  of  the  vote  for 
electors,  offered  for  a  money  consideration  to  certify  and  declare  the  due  election 
of  the  persons  who,  according  to  the  face  of  the  returns,  received  a  majority  of  the 
votes  and  were  duly  and  properly  elected.  Failing  to  tiud  a  purchaser,  they  falsely, 
corruptly,  and  fraudulently  certified  anil  declared  the  minority  candidates  elected, 
after  having  first  applied  for  a  reward  for  so  doing. 

Wherefore  the  undersigned  object  to  the  certificate  or  declaration  of  the  election 
of  electors  made  by  said  returning  othcers  as  utterly  void  by  reason  of  the  fraud 
and  corruption  of  said  board  of  returning  officers  in  thus  offering  said  certificate  or 
declaration  for  sale. 

V. 

The  undersigned  respectfully  object  to  counting  the  vote  cast  by  the  said  A.  B. 
Leyi.ssee,  for  the  reason  that  the  State  of  Louisiana  was  forbidden  by  the  Consti 
tution  of  the  Cnited  States  to  appoint  ihe  said  A.  B.  Levissee  an  elector,  because  he 
was.  at  the  time  of  the  appointment  of  the  electors  in  said  State,  to  wit,  on  the  7th  day 
of  November,  1876,  and  for  a  number  of  days  previous  and  subsequent  thereto, 
holding  an  otfice  of  trust  or  profit  under  the  United  States,  to  wit,  the  office  of 
commissioner  of  the  United  States  circuit  court  for  the  district  of  Louisiana,  and 
his  subsequent  appointment  by  the  electors  was  not  only  without  authority  of  law 
and  void,  but  it  was  knowingly  and  fraudulently  made  for  an  illegal  and  fraudu 
lent  purpose. 

VI. 

The  undersigned  especially  object  to  counting  the  vote  cast  by  the  said  O.  H. 
Brewster,  for  the  reason  that  the  State  of  Louisiana  was  forbidden  by  the  Consti 
tution  of  the  United  States  to  appoint  the  said  Brewster  an  elector,  because  he  was, 
at  the  time  of  the  appointment  of  electors  in  said  State,  to  wit,  on  the  7th  day  of 
November,  1876,  and  for  a  number  of  days  previous  and  subsequent  thereto,  hold 
ing  an  office  of  trust  or  profit  und>T  the  United  States,  to  wit,  the  office  of  sur 
veyor-general  of  the  land  office  of  the  land  district  of  the  State  of  Louisiana ;  and 
any  subsequent  appointment  of  tbe  said  Brewster  as  an  elector  by  the  other  elect 
ors  was  not  only  without  warrant  of  law  and  void,  but  was  made  knowingly  and 
fraudulently  for  an  illegal  and  fraudulent  purpose. 

VIT. 

The  undersigned  object  and  insist  that  under  no  circumstances  can  more  than  sis 
of  the  eight  electoral  votes  cast  in  Louisiana  for  Rutherford  B.  Hayes  and  William 
A.  Wheeler  be  counted,  for  the  reason  that  at  least  two  of  the  persons  casting  such 
votes,  to  wit,  A.  B.  Levissee  and  O.  H..  Brewster,  were  not  appointed  electors  by 
said  State;  and  they  further  object,  especially  to  the  vote  given  and  cast  by  Will 
iam  P.  Kellogg,  one'  of  the  pretended  electors  of  said  State  of  Louisiana,  because 
the  certificate  executed  by  himself  as  governor  of  that  State  to  himself  as  elector 
of  that  State  is  void  as  to  him  and  creates  no  presumption  and  is  no  evidence  in 
his  own  favor  that  he  was  duly  appointed  such  elector,  and  there  is  no  other  evi 
dence  whatever  of  his  having  been  appointed  an  elector  of  said  State.  And  they 
further  object  to  the  said  William  P.  Kellogg,  that  by  the  constitution  of  Louisiana 
he  was  not  entitled  to  hold  both  offices,  but  was  disqualified  therefrom,  and  that  on 
the  day  of  casting  the  vote  aforesaid,  and  on  the  day  of  the  election  for  electors,  and 
before  and  after  those  days,  he  continued  to  act  as  governor  of  the  State,  and  that 
his  vote  as  elector  is  null  and  void. 

VIII. 

Because  the  certified  lists  of  the  names  of  the  said  Kellogg,  Burch,  Joseph,  Shel 
don,  Marks,  Levissee,  Brewster,  and  Joffrion,  as  the  duly  appointed  electors  fojr 
the  State  of  Louisiana  by  W.  P.  Kellogg,  claiming  to  be,  but  who  was  not,  governor 
of  said  State,  were  falsely,  fraudulently,  and  corruptly  made,  and  issued  as  part  of 
a  conspiracy  between  the  said  Kellogg  and  the  said  returning  officers,  Wells,  An 
derson,  Casauave,  and  Kenuer,  and  other  persons,  to  cheat  and  defraud  the  said 
McEnery,  Wickliffe,  St.  Martin,  Poehe,  De  Blanc,  Si  ay,  Cobb,  and  Cross  of  the 
offices  to  which  they  had  been  duly  appointedas  aforesaid,  and  to  defraud  the  State 
of  Louisiana  of  her  right  to  vote  for  President  and  Vice-President  according  to  her 
own  wish,  as  legally  expressed  by  the  vote  of  their  people  at  the  election  aforesaid. 
For  which  reasons  the  said  lists  of  names  of  the  said  Kellogg,  Burch,  Joseph, 
Sheldon,  Marks,  Levisseo,  Brewster,  and  Joffrion,  as  electors,  and  the  votes  cast  by 
them,  are  utterly  void,  in  support  of  which  reasons  the  undersigned  refer  to  the 
Constitution  and  laws  of  the  United  States  and  the  State  of  Louisiana,  and,  among 
other,  to  the  evidence  taken  at  the  present  session  of  Congress  by  the  Committee 
and  subcommittees  on  Privileges  and  Elections  of  the  Senate,  the  select  committee 
and  subcommittees  of  the  House  of  Representatives  on  the  recent  election  in  the 
State  of  Louisiana,  and  the  committee  of  the  House  of  Representatives  on  the 
powers,  privileges,  and  duties  of  the  House  of  Representatives  in  counting  the 
electoral  vote,  together  with  the  papers  and  documents  accompanying  said  evidence. 

ELI  SAULSBU'RY, 
J.  E.  MCDONALD. 
JOHN  W    STEVEXSOX, 
LEWIS  V.  BOGY, 

Senators. 

DAVID  DUDLEY  FIELD, 
G.  A.  JENKS, 
R.  L.  GIBSON, 
J.  R.  TUCKER, 
WILL.  M.  LEVY, 
E.  JNO.  ELLIS, 
WM.  R.  MORRISON, 

Representatives. 


OBJECTION  No.  2. 

The  undersigned  Senators  and  members  of  the  House  of  Representatives  of  the 
United  States  object  to  the  certificates  and  electoral  votes  of  the  State  of  Loui 
siana,  signeil  by'W.  P.  Kellogg,  J.  H.  Burch,  Peter  Joseph,  L.  A.  Sheldon,  Morris 
Marks,  A.  B.  'Levissee,  O.  IL  Brewster,  and  Oscar  Jott'rion,  for  the  following 
reasons : 

First.  The  government  of  the  State  of  Louisiana  as  administered  at  and  prior  to 
the  7th  day  of  November,  1876,  and  until  this  time,  was  and  is  not  republican  in 
form. 

Second.  If  the  government  of  tto  State  of  Louisiana  was  and  is  republican  in 


form,  there  was  no  canvass  of  the  votes  of  the  State  made  on  which  the  certificates 
of  election  of  the  above-named  alleged  electors  were  issued. 

Third.  Any  alleged  canvass  of  votes  on  which  the  certificates  of  election  of  said 
alleged  electors  is  claimed  to  be  founded  was  an  a^t  of  usurpation,  was  fraudulent 
and  void. 

Fourth.  The  votes  cast  in  the  electoral  college  of  said  State  by  Ospar.Toffrion,W. 
P.  Kellogg,  J.  H.  Burch,  and  Morris  Marks  are  not  electoral  votes,  for  that  the  said 
Oscar  Joffrion,  W.  P.  Kellogg,  J.  H.  Bnrch,  and  Morris  Marks  are  and  were  ineli 
gible  by  the  laws  of  Louisiana,  are  and  were  disqualified  ;  for  by  the  constitution 
of  Louisiana  (sec.  117)  it  is  provided  "  Xo  person  shall  hold  or  exercise  at  the  sumo 
time  more  than  one  office  of  trust  or  profit,  except  that  of  justice  of  the  peace  or 
notary  public."  Whereas  on  and  prior  to  the  7th  day  of  November,  1676,  and  until 
after  the  6th  day  of  December,  I8'.6,  W.  P.  Kellosg  was  acting  de  facto  governor  of 
said  State ;  Oscar  Joffrion  was  supervisor  of  registration  for  the  parish  of  Pointe 
Coupee,  in  said  State  ;  Morris  Marks  was  a  district  attorney  for  one  of  the  districts 
of  said  State,  and  candidate  for  district  judge  and  was  elected  at  said  election  and 
J.  H.  Burch  was  a  member  of  the  senate  of  said  State,  also  a  member  of  the  board 
of  control  of  the  State  penitentiary,  administrator  of  the  deaf  and  dumb  asylum 
both  salaried  offices,  and  treasurer  of  the  school  board  of  the  parish  of  East  Baton 
Rouge. 


Fifth.  In  addition  thereto,  said  Oscar  Joffrion  was  specially  disqualified  by  the 


visor  of  registration  for  the  parish  of  Pointe  Coupee,  in  said  State.  In  support  here 
of  inter  alia  there  is  herewith  submitted  the  testimony  taken  before  the  special 
committee  of  the  House  of  Representatives  to  investigate  the  election  in  Louisiana  ; 
also,  the  testimony  taken  before  the  committee  on  powers  and  privileges  of  the 
House  of  Representatives;  also,  the  testimony  taken  before  the  Committee  on  Priv 
ileges  and  Elections  of  the  Senate. 

ELI  SAULSBURY, 

j.  E.  MCDONALD, 

FRANCIS  KERNAN, 

Senators. 
G.  A.  JENKS. 
J.  R.  TUCKER, 
R.  L.  GIBSON'. 
DAVID  DUDLEY  FIELD, 
WILL.  M.  LEVY, 
E.  JNO.  ELLIS, 

Representatives. 


OBJECTION  No.  3. 

HOUSE  OF  REPRESENTATIVES, 
Washington  D.  O.,  February  12,  1877 

The  undersigned  Senators  and  Representatives  object  to  the  counting  of  the 
votes  of  O.  H.  Brewster,  A.  B.  Levissee,  W.  P.  Kellogg,  Oscar  Joffrion,  Peter  Joseph. 
J.  H.  Burch,  L.  A.  Sheldon,  aud  Morris  Marks,  as  electors  for  the  State  of  Louisiana, 
for  the  reason  that  the  said  persons  were  not  appointed  electors  by  the  State  of 
Louisiana  in  the  manner  directed  by  its  Legislature  : 

M.  I.  SOUTHARD, 

Rcpresen'a'iKcfroin  the  State  of  Ohio. 
CHAS.  E.  HOOKEK,  of  Mississippi. 
JOHN  W.  STKVENSOX.  ot  Kentucky. 
WM.  PINKNEY  WHYTE,  of  Maryland. 
FERNANDO  WOOD, 

Representative  from  the  State  of  New  York. 
ERASTUS  WELLS, 

Representative  of  Missouri. 
A.  G.  EGBERT, 

Representative  of  Pennsylvania. 
R.  A.  DE  BOLT,  of  Missouri. 
R.  P.  BLAND,  of  Missouri. 


OBJECTION  No.  4. 

The  undersigned  respectfully  object  to  the  counting  of  any  vote  for  President 
and  Vice-President  of  the  United  States  given  or  purported  to  have  been  given  by 
John  McEuery,  R.  C.  Wickliffo.  L  St.  Martin,  F.  B.  Poche,  A.  De  Blanc,  W.  A? 
Seay,  R.  G.  Cobb,  and  K.  A.  Cross,  of  Louisiana,  or  by  either  of  them,  for  the  rea 
son  that  there  is  no  evidence  that  either  of  said  persons  has  been  appointed  an 
elector  of  said  State  in  such  manner  as  the  Legislature  thereof  has  directed  ;  and 
for  the  further  reason  that  there  is  evidence  conclusive  in  law  that  neither  of  said 
persons  has  been  appointed  to  be  an  elector  for  the  State  of  Louisiana  in  such 
manner  as  the  Legislature  thereof  has  directed. 

They  respectfully  object  to  the  reading,  the  recording,  or  acknowledging  of  any 
commission,  license,  certificate,  of  appointment,  or  of  authentication  signed  or  pur 
porting  to  be  signed  by  John  McEnery  as  governor  of  the  State  of  Louisiana,  for 
the  reason  that  there  is  no  evidence  that  John  McEnery  is  now,  or  ever  was  at  any 
time  during  the  year  1876,  governor  of  the  State  of  Louisiana,  and  for  the  further 
reason  that  there  is  conclusive  evidence  that  William  P.  Kellogg  was,  during  the 
whole  of  the  year  1876,  and  for  several  years  prior  thereto,  governor  of  that  State  ; 
was  recognized  as  such  by  the  judicial  and  legislative  departments  of  the  govern 
ment  of  that  State  and  by  every  department  of  the  Government  of  the  United 
States. 

T.  O.  HOWE. 

R.  J.  OGLESBY. 

JOHN  SHERMAN. 

J.  R.  WEST. 

S.  A.  HURLBUT. 

W.  TOWNSEND. 

CHARLES  H.  JOYCE. 

L.  DANFORD. 

WM.  W.  CRAPO. 

EUGENE  HALE. 

WILLIAM  LAWRENCE. 


OREGON. 

CERTIFICATE  No.  1 

UNITED  STATES  OF  AMERICA, 

State  of  Oregon,  County  of  Multnomah,  ss: 

We,  J.  C.  Cartwright,  W.  H.  Odell.  and  J.  W.  Watts,  being  each  duly  and  sev 
erally  sworn,  say  that,  at  the  hour  of  12  o'clock  m.,  of  the  (Oth)  sixth  day  of  December, 
A.  D'.  1876,  we  duly  assembled  at  the  State  capitol,  in  a  room  in  the  capitol  building 
at  Salem,  Oregon,  which  was  assigned  to  us  by  the  secretary  of  state  of  the  State 
of  Oregon.  That  we  duly,  on  said  day  aud  hour,  demanded  of  the  governor  of  the 


296 


ELECTORAL  COMMISSION. 


State  of  Oregon  and  of  the  secretary  of  state  of  the  State  of  Oregon  certificp 
lists  of  tb!i  electors  for  President  and  Vice  President  of  the  United  States  for 
the  State  of  Oregon,  as  provided  by  the  laws  of  the  United  States  and  of  the 
State  of  Oregon,  but  both  L  F.  Grover,  governor  of  the  State  of  Oregon,  and  S 
F.  Chadwirk,  secretary  of  state  of  said  Stat •«,  then  and  there  refused  to  deliver 
to  us,  or  either  of  us,  any  such  certified  lists  or  any  certificate  of  election 
whatever.  And  being  informed  that  such  lists  had  been  delivered  to  one  E  A. 
Cronin  by  said  secretary  of  state,  we  each  and  all  demanded  such  certified  lists  of 
said  K.  A  Cronin.  hut  ho  then  and  there  refused  to  delivei  or  to  exhibit  such  cer 
tified  lists  to  us,  or  either  of  us.  Whereupon  we  have  procured  from  the  secretary 
of  state  certified  copies  of  the  abstract  of  the  vote  of  the  State  of  Oregon  for  elect 
ors  of  President  and  Vice-Presidcut  at  the  presidential  election  held  in  said  Stito 
November  T,  A.  D.  1876,  and  have  attached  them  to  the  certified  list  of  the  persons 
voted  for  by  us  and  of  the  vo~es  cast  by  us  for  President  and  V ice-President  of  the 
United  States,  in  lieu  of  a  more  formal  certificate. 

W.  H.  ODELL. 

J.  W.  WATTS. 

JOHN  C.  CARTWRIGHT. 

Sworn  and  subscribed  to  before  me  this  6th  day  of  December,  A.  D.  1876. 
|  SEAL.]  TIIOS.  H.  CANN, 

Notary  Public  for  State  of  Oregon. 

UNITED  STATES  OF  AMERICA, 
STATE  OF  OREGON,  SECRETARY'S  OFFICE, 

Salem,  December  6,  1876. 

I,  S.  F.  Chadwick,  do  hereby  certify  that  I  am  the  secretary  of  the  State  of  Ore 
gon  and  Ihe  custodian  of  the  great  seal  thereof  ;  that  T.  II.  Cann,  esq.,  resident  of 
Marion  County,  in  said  State  of  Oregon,  was  on  the  6'h  day  of  December,  A..  D. 
Ib76,  a  notary  public  within  and  for  said  State,  and  duly  commissioned  such  by  the 
governor  of  tho  State  of  Oregon,  under  its  great  seal,  and  was  duly  qualified  t.)  act 
as  such  notary  public  by  the  laws  of  this  State,  as  it  fully  appears  by  the  records 
of  this  office  ;  that  as  said  notary  public  the  said  T.  II.  Caun  had,  on  the  day  afore 
said,  to  wit,  December  6,  A.  D.  iS7G,  full  power  and  authority,  by  the  laws  of  the 
State  of  Oregon,  to  take  acknowledgments  of  all  instruments  hi  writing,  and  ad- 
minis  er  oaths;  that  the  annexed  certificate  is  made  in  conformity  with  the  laws 
of  this  State ;  that  the  signature  thereto  of  T.  II  Cann  is  tho  genuine  signature  of 
T.  II.  Caun,  notary  public ;  that  the  seal  affixed  to  said  acknowledgment  is  the 
olliciiil  seal  of  said  T.  II.  Cann,  notary  public  ;  and  that  full  faith  and  credit  should 
be  given  to  his  official  acts  as  notary  public  aforesaid. 

In  witness  whereof  I  have  hereto  set  my  hand  aud  affixed  the  great  seal  of  the 
State  of  Oregon  the  day  and  year  first  above  written. 

[SEAL.]  S.  F.  CHADWICK, 

Secretary  of  the  State  of  Oregon. 

Abstract  of  votes  cast  at  the  presidential  election  held  in  the  State  of  Oregon,  Novem 
ber  7,  1876,  for  presidential  electors. 


3 

M 

*<D 

r—t 

j 

,J 

o5 

w 

& 

a 

02 

a 

Counties. 

O 

"S 

£ 
£ 

a 
0 

a 

S 

"3 
2 
6 

1 

Jj 

W 

^ 

d 

i 

•^ 

ri 

5 

a 
02 

0 

^ 

^ 

hi 

W 

H 

& 

fi 

PH 

« 

Baker  

318 

319 

319 

549 

550 

549 

i 

1 

1 

Benton  

615 

615 

615 

567 

567 

567 

77 

77 

77 

Clackamas  .  .  . 

949 

9.10 

950 

724 

724 

724 

17 

17 

17 

Clatsop  

432 

432 

432 

386 

3-5 

38!) 

Columbia  

157 

158 

157 

179 

179 

179 

22 

22 

22 

Coos  

571 

571 

571 

512 

516 

515 

Currv  

131 

131 

131 

124 

124 

124 

3 

3 

3 

Douglas  

1,002 

1,  C02 

1,003 

847 

847 

847 

43 

43 

43 

Grant  

315 

314 

316 

279 

279 

277 

3 

3 

3 

Jackson  

585 

585 

5,-6 

827 

840 

840 

5 

5 

5 

Josephine  

209 

209 

209 

252 

252 

252 

4 

4 

4 

Lano  

949 

949 

949 

946 

946 

04  f, 

33 

33 

33 

Lake  

173 

173 

173 

258 

258 

258 

Linn  

1,  303 

1,  324 

1,  323 

1,  4114 

1,404 

1,  404 

140 

141 

140 

Mai-ion  

1,  7M) 

1,  782 

1,781 

1,  154 

1,  154 

1   1  5."> 

24 

23 

22 

Multaomah  .  . 

2,  K4 

2,  122 

2,  1.2 

1,  525 

1,  528 

I,  525 

2 

2 

2 

Polk    

007 

ti08 

cos 

542 

542 

542 

54 

55 

54 

Tillamook  

119 

119 

119 

76 

76 

1 

1 

1 

Umatilla  

486 

4rG 

486 

742 

742 

7-12 

42 

42 

12 

Union  .   . 

366 

300 

366 

(S'>el 

525 

3^ 

32 

32 

Wasco  

4'Jl 

493 

621 

621 

elb 

"Washington.. 

693 

Ofi2 

093 

42! 

421 

423 

Yauihill  

811 

810 

812 

674 

674 

074 

6 

C 

6 

Total  .. 

15,  206 

15,  206 

15,  214 

14,  136 

14,157 

14,  149 

509 

5fO 

507 

Simpson,  1;  Gray,  1;  Suulsbury,  1;  McDowell,  1. 

SALEM,  STATE  OF  OREGON: 

I  hereby  certify  that  the  foregoing  tabulated  statement  is  the  result  of  the  vote 
cast  tor  presidential  electors  at  a  general  election  held  in  and  for  the  State  of  Ore 
gon  on  the  7th  day  of  November,  A.  D.  1876,  as  opened  and  canvassed  in  the  pres 
ence  of  his  excellency  L.  F.  Grover,  governor  of  said  State,  according  to  law,  on 
the  4th  day  of  December,  A.  D.  1876,  at  2  o'clock  p.  m.  of  that  day,  by  the  secre 
tary  of  state. 

[SEAL.]  S.  F.  CHADWICK, 

Secretary  of  Stale  of  Oregon. 

UNITED  STATES  OF  AMERICA, 
STATE  OF  OREGON,  SECRETARY'S  OFFICE. 

Kalem,  Deceitiber  6,  1876. 

T,  S.  F.  Chadwick,  secretary  of  the  State  of  Oregon,  do  hereby  certify  that  I  am 
the  custodian  of  the  great  seal  of  tho  State  of  Oregon.  That  the  foregoing  copy  of 
the  abstract  of  votes  cast  at  the  presidential  election  held  in  the  State  of  Oregon, 
November  7th,  1870,  for  presidential  electors,  has  been  by  me  compared  with  the 
original  abstract  of  votes  cast  for  presidential  electors  aforesaid,  on  tile  in  this  of 
fice,  and  said  copy  is  a  correct  transcript  therefrom  and  of  tho  whole  of  the  said  ord 
inal  abstract  of  votes  cast  tor  presidential  electors. 

lu  witness  whereof  I  have  hereto  set  my  hand  and  affixed  tho  great  seal  of  the 
Staie  of  Oregon  the  day  and  year  above  written. 
[SKAt-J  S.  F.  CHADWICK, 

Secretary  of  the  State  of  Oregon. 


Lint  of  votes  cant  at  an  election  for  Actors  of  President  and  Vice-President  oftte 
United  States  in  the  State  of  Oregon  he  d  on  the  'ith  day  of  November,  1876. 

FOR  PRESIDENTIAL  ELECTOR. 

W.  H.  Odell  received  fifteen  thousand  two  hundred  and  six  (15,206)  votes. 
J.  W.  Watts  received  fifteen  thousand  two  hundred  aud  six  (15/..00)  votes. 
J.  C.  Cartwright  received  fifteen  thousand  two  hundred  and  fourteen  (15,214) 
votes. 

E.  A.  Cronin  received  fourteen  thousand  one  hundred  and  fifty-seven  (14,157) 
votes. 

II.  Klippel  received  fourteen  thousnnd  one  hundred  and  thirty-fix  (14,136)  votes. 
W.  B.  Laswell  received  fourteen  thousand  one  hundred  and  forty-nine  (14,149) 
votes. 
Daniel  Clark  received  five  hundred  and  nine  (509)  votes. 

F.  Sutherland  received  five  hundred  aud  ten  (510)  votes. 
Bart  Curl  received  five  hundred  and  seven  (507)  votes. 

S.  W.  McDowell  received  three,  (3,)  Gray  one,  (1,)  Simpson  one,  (1,)  and  Salis 
bury  one  (1)  vote. 

I,'S.  F.  Chadwick,  secretary  of  state  in  and  for  the  State  of  Oregon,  do  hereby 
certify  that  tho -within  and  foregoing  is  a  full,  true,  and  correct  statement  of  the 
entire  vote  cast  for  each  and  all  persons  for  the  otiico  of  electors  of  President  and 
Vice-President  of  the  United  States  for  the  State  of  Oregon  at  the  general  election 
held  in  said  State  on  the  7th  day  of  November,  A.  D.  1S76,  as  appears  by  the  re 
turns  of  said  election  now  on  file' in  my  oilier. 

[SEAL.]  S.  F.  CHADWICK, 

Secretary  of  State,  of  Oregon. 
UNITED  STATES  OF  AMERICA, 

State  ff  Oregon,  County  of  Marion,  ss: 

We,  W.  H.  Odell,  J.  C.  Cartwright,  and  J.  W.  Watts,  electors  of  President  and 
Vice-President  of  tho  United  States  for  the  State  of  Oregon,  duly  elected  and  ap 
pointed  in  tlu>  year  A.  D.  1876,  pursuant  to  the  laws  of  the  United  States,  and  in 
tho  manner  directed  by  the  laws  of  the  State  of  Oregon,  do  hereby  certify  t  hat  at 
a  meeting  hold  by  us  at  Salem,  the  seat  of  government  in  and 'for  the'  State  of 
Oregon,  on  Wednesday,  the  Oth  day  of  December,  A.  D.  1876,  for  tho  purpose  of 
casting  our  votes  for  President  and  Vice- President  of  the  United  States — 

A  vote  was  duly  taken,  by  ballot,  for  President  of  the  United  States,  in  distinct 
ballots  for  President  only,  with  tho  following  result. 

The  whole  number  of  votes  cast  for  President  of  tho  United  States  was  three  (3) 
votes. 

That  the  only  person  ->'oted  for  for  President  of  the  United  States  was  Ruther 
ford  B.  Hayes, 'of  Ohio. 

That  for'President  of  the  United  States  Rutherford  B.  Hayes,  of  Ohio,  received 
three  (3)  votes. 

In  testimony  whereof  we  have  hereunto  set  our  hands  on  the  first  Wednesday  of 
December,  in  the  year  of  our  Lord  one  thousand  eight  hundred  and  seventy-six. 

W.  H.  ODELL. 
J.  C.  CART  WRIGHT. 
J.  W.  WATTS. 
UNITED  STATF.S  OF  AMERICA, 

State  of  Oregon,  County  of  Marion,  sg  : 

We,  W.  H.  Odell,  J.  C.  Cartwright,  and  J.  W.  Watts,  electors  of  President  and 
Vice-President  of  the  United  States  for  the  State  of  Oregon,  duly  elected  and  ap 
pointed,  in  the  year  A.  D.  1876,  pursuant  to  the  laws  of  the  United  States,  and  iu 
the  manner  directed  by  the  laws  of  the  State  of  Oregon,  do  hereby  certify  that  at  a 
meeting  held  by  us  at  Salem,  the  seat  of  government  in  and  for  the  State  of  Oregon, 
on  Wednesday,  the  6th  day  of  December,  A.  D.  187.i,  for  the  purpose  of  casting  our 
votes  for  President  and  Vice-President  of  the  United  States  — 

A  vote  was  duly  taken,  by  ballot,  for  Vice-Presi  Jciit  of  tho  United  States,  in  dis 
tinct  ballots  for  Vice-President  only,  with  the  following  result: 

The  whole  number  of  votes  cast  for  Vice-President  of  the  United  States  was  three 
(3)  votes. 

That  the  only  person  voted  for  for  Vice-Presideut  of  the  United  States  was  AVill- 
iam  A.  Wheeler,  of  New  York. 

That  for  Vice-President  of  the  United  States  William  A.  Wheeler,  of  New  York, 
received  three  (3)  votes. 

In  testimony  whereof  we  have  hereunto  set  our  hands  on  the  first  Wednesday  of 
December,  in  the  year  of  our  Lord  one  thousand  eight  hundred  and  seventy-six. 

W.  H.  ODELL. 
J.  C.  CART  WRIGHT, 

J.  w.  WATTS. 

SALEM,  OREGON,  December  6, 1876—12  o'clock  m. 

This  being  the  day  and  hour  fixed  by  the  statutes  of  the  United  States  and  of 
tho  State  of  Oregon  for  the  meeting  of  the  electors  of  President  and  Vice-President 
of  the  United  States  for  tho  State~of  Oregon,  the  electors  for  President  and  Vice- 
President  of  the  United  States  for  the  State  of  Oregon  met  at  Salem,  tho  seat  of 
government  of  said  State  of  Oregon,  at  twelve  o'clock  noon  of  the  Oth  day  of  De 
cember,  A.  D.  1870.  said  day  being  tho  iirst  Wednesday  in  December. 

Present,  Ay.  II.  Odell  and  J.  C.  Cartwright. 

The  meeting  was  duly  organized  by  electing  W.  H.  Odell  chairman  and  J.  C. 
Cartwright  secretary. 

The  resignation  of  J.  W.  Watts,  who  was  on  November  7,  A.  D.  187(5,  duly  elected 
an  elector  "of  President  and  Vice-President  of  tho  United  States  for  the' State  of 
Oregon,  was  presented  by  W.  H.  Odell,  and,  after  being  duly  read,  was  unani 
mously  accepted 

There  being  but  two  electors  present,  to  wit,  W.  H.  Odell  and  J.  C.  Cartwright, 
and  the  State  of  Oregon  being  entitled  to  three  electors,  the  electors  present  pro 
ceeded  to  and  did  declare  that  a  vacancy  existed  in  the  electoral  college,  and  then 
and  there,  under  and  by  virtue  of  the  provisions  of  section  fifty-nine,  (5!),)  title 
nine,  (9,)  chapter  fourteen,  (14,)  of  the  General  Laws  of  Oregon,  (Deady  and  Lane's 
Compilation,)  the  said  electors,  W.  H.  Odell  and  J.  C.  Cartwright,  immediately,  by 
viva  voce  vote,  proceeded  to  fill  said  vacancy  in  the  electoral  college. 

J.  W.  Watts  received  the  unanimous  voteof  all  the  electors  present,  and  was  there 
upon  declared  duly  elected  to  the  office  of  elector  of  President  and  Vice-President 
of  the  United  States  for  tho  State  of  Oregon. 

Whereupon  the  said  electors,  on  motion,  proceeded  to  vote  by  ballot  for  Presi 
dent  of  tho  United  States. 

The  whole  number  of  votes  cast  for  President  of  the  United  States  was  three 
(3)  votes. 

The  only  person  voted  for  for  President  of  the  United  States  was  Rutherford  B. 
Hayes,  of  Ohio. 

For  President  of  the  United  States,  Rutherford  B.  Hayes,  of  Ohio,  received  throe 
(3)  votes. 

The  said  electors  then,  on  motion,  proceeded  to  vote  by  ballot  for  Vice-Prcsideut 
of  the  United  States. 

The  whole  number  of  votes  cast  for  Vice-President  of  the  United  States  was 
three  (3)  votes. 

The  only  person  voted  for  for  Vice-President  of  the  United  States  was  William  A. 
Wheeler,  of  New  York. 

For  Vice-Presideut  of  the  United  States,  William  A.  Wheeler,  of  New  York, 
received  three  (3)  votes. 

The  electors,  on  motion,  then  unanimously,  by  writing  under  their  hands,  ap- 


ELECTORAL  COMMISSION. 


297 


pointed  W.  H.  Odell  to  take  charge  of  and  deliver  to  the  President  of  the  Senate, 
at  the  scat  of  Government,  Washington,  D.  C.,  one  of  the  certificates  containing 
the  lists  of  the  votes  of  said  electors  for  President  and  Vice-President. 

On  motion,  it  was  ordered  that  one  of  the  certified  copies  of  the  abstract  and 
canvass  of  the  entire  vote  of  the  State  of  Oregon,  east  at  the  presidential  election 
held  November  7,  A.  D.  1870,  for  electors  of  President  and  Vice-President  of  the 
Unites!  States  for  Oregon,  as  certified  and  delivered  to  the  electors  by  S.  F.  Chad- 
wi''k,  secretary  of  state  of  the  State  of  Oregon,  he  attached  to  each  certificate  and 
return  of  the  list  of  persons  voted  for  by  tiio  electors  here  present  tor  President 
and  Vice-Presideut  of  the  United  States. 
The  electors  then  adjourned. 

W.  H.  ODELL, 

Chairman. 
JOHN  C.  CARTWRIGHT, 

Secretary. 

We  hereby  certify  that  the  within  and  forgoing  is  a  tme,  full,  and  correct  state 
ment  of  all  the  acts  and  proceedings  of  the  electors  of  President  and  Vice-Presi 
dent  for  the  State  of  Oregon  at  a  meeting  of  said  electors  held  at  Salem,  in  the 
State  of  Oregon,  on  the  Cth  day  of  December,  A.  D.  1876,  at  12  o'clock  noon  of  said 
ttay. 

W.  H.  ODELL,  El'ctnr. 
JOHN  W.  WATTS,  Elector. 
JOHN  C.  CARTWRIGHT,  Elector. 
SALEM,  OIIEGON,  December  6th,  1876. 

We,  the  duly  appointed  and  elected  electors  of  President  and  Vice-President  of 
the  United  States  for  the  State  of  Oregon,  do  hereby  designate  and  appoint  W.  H. 
Odell  to  take  charge  of  and  deliver  to  the  President  of  the  Senate  of  the  United 
States,  at  the  seat  of  Government,  to  wit,  at  Washington,  District  of  Columbia, 
before  the  first  Wednesday  in  January,  A.  D.  1877,  the  certificates  and  papers  re 
lating  to  the  vote  for  President  and  Vice-President  of  the  United  States,  cast  by  us 
at  Salem,  in  the  State  of  Oregon,  on  the  Gtii  day  of  December,  A.  I).  1876. 

W.  H.  ODELL. 

J.  C.  CARTWRIGHT. 

J.  W.  WATTS. 

Ballots. 

For  President  of  the  United  States,  Rutherford  B.  Hayes,  of  Ohio. 

(Indorsed)  W.  II.  ODELL. 

For  President  of  the  United  States,  Rutherford  B.  Hayes,  of  Ohio. 

(Indorsed)  JNO.  C.  CARTWRIGHT. 

For  President  of  the  United  States,  Rutherford  B.  Hayes,  of  Ohio. 

(Indorsed)  J.  W.  WATTS. 

For  Vice-President  of  the  United  States,  William  A.  Wheeler,  of  New  York. 

(Indorsed)  W.  II.  ODELL. 

For  Vice-President  of  the  United  States,  William  A.  Wheeler  of  New  York. 

(Indorsed)  JOHN  C.  CARTWRIGHT. 

For  Vice-President  of  the  United  States,  William  A.  Wheeler,  of  Xew  York. 

(Indorsed)  J.  W.  WATTS. 

To  the  honorable  Electoral  College  in  and  for  the  State  of  Oregon  for  President  and 
Vice-President  of  the  United  States  : 

Whereas  I,  J.  W.  Watts,  did  receive  a  majority  of  the  legal  votes  <\ast  for  presi 
dential  electors  at  an  election  held  for  President  and  Vice-Presideut  of  the  United 
States  on  the  7th  day  of  November,  A.  D.  1876.  as  appears  from  the  official  returns 
on  file  in  the  secretary  of  state's  office  in  and  for  said  State ;  aud  whereas  there 
his  arisen  some  doubts  touching  my  eligibility  at  the  time  of  such  election :  There 
fore,  I  hereby  tender  my  resignation  of  tlio  office-  of  presidential  elector. 
Very  respectf ullv, 

J.  W.  WATTS. 
SALEM,  Oil.,  December  6th,  1876. 


CERTIFICATE  No.  2. 

STATE  OF  OUEGON,  EXECUTIVE  OFFICE, 

Salem,  December  6th,  1876. 

I,  L.  F.  Grover,  governor  of  the  State  of  Oregon,  do  hereby  certify  that,  at  a 
general  election  held  in  said  State  on  the  seventh  day  of  November,  A.  D.  1876, 
William  H.  Odell  received  15,206  votes,  John  C.  Cartwright  received  15,214  votes, 
E.  A.  Cronin  received  14,157  votes  for  electors  of  President  and  Vice-President  of 
the  United  States ;  being  the  highest  number  of  votes  cast  at  said  election  for  per 
sons  eligible,  under  the  Constitution  of  the  United  States,  to- be  appointed  electors 
of  President  and  Vice-President  of  the  United  States,  they  are  hereby  declared 
duly  elected  electors  as  aforesaid  for  the  State  of  Oregon. 

lii  testimony  whereof  I  have  hereunto  set  my  hand  and  caused  the  seal  of  the 
State  of  Oregon  to  be  affixed  this  tho  day  and  year  first  above  written. 

LA  FAYETTE  GROVER, 

Goo.  of  Oregon. 
Attest: 
ISEAL.)       S.  F.  CHADWICK, 

Secretary  of  State  of  Oregon. 

This  is  to  certify  that  on  tho  6th  day  of  December,  A.  D.  1876,  E.  A.  Cronin,  one 
of  the  undersigned,  and  John  C.  Cartwright  and  William  H.  Odell,  electors,  duly 
appointed  on  the  7th  day  of  November,  A.  D.  1876,  as  appears  by  the  annexed  cer 
tificate,  to  cast  the  vote  of  the  State  of  Oregon  for  President  and  Vice-Presideut  of 
tho  United  States,  convened  at  the  seat  of'government  of  said  State,  and  for  the 
purpose  of  discharging  their  duties  as  such  electors;  that  thereupon  said  John  C. 
Carl  wright  and  William  H.  Odell  refused  to  act  as  such  electors  ;  that  upon  such 
refusal  the  undersigned,  J.  N.  T.  Miller  and  John  Parker,  were  duly  appointed 
electors,  as  by  the  laws  of  Oregon  in  such  cases  made  and  provided,  to  fill  the  va 
cancies  caused  by  the  said  refusal ;  that  thereupon  the  said  electors,  E.  A.  Cronin, 
J.  N.  T.  Miller,  and  John  Parker  proceeded  to  vote  by  ballot,  as  by  law  provided, 
for  President  and  Vice-President  of  the  United  States,  they  being  duly  qualified 
to  act  as  such  electors,  and  the  electoral  college  of  said  State  having  been  duly  or- 
tanized ;  that  upon  the  ballots  so  taken  Rutherford  B.  Hayes,  of  tho  State  of  Ohio, 
received  two  (2)  votes  for  President,  and  Samuel  J.  Tildcn,  of  the  State  of  New 
York,  received  one  (1)  vote  for  President,  and  that  William  A.  Wheeler,  of  the 
State  of  New  York,  received  two  (2)  votes  for  Vice-President,  and  Thomas  A.  Hen- 
dricks,  of  the  State  of  Indiana,  received  one  (1)  vote  for  Vice-President ;  that  the 
said  votes  were  all  the  votes  cast  and  the  said  persons  wore  all  tho  persons  voted 
for.  And  we  further  certify  that  the  lists  hereto  attached  are  true  and  correct  lists 
of  all  tho  votes  given  for  each  of  the  persons  so  voted  for  for  President  and  Vice 
President  of  the  United  States. 

Done  at  the  city  of  Salem,  county  of  Marion,  and  State  of  Oregon,  this  6th  day 
of  December,  A.'D.  1876. 

E.  A.  CRONIN, 
J.  N.  T.  MILLER, 
JOHN  PARKER, 
Electors  for  the  State  of  Oregon,  to  cast  t!ie  vote  of  soid  State 

for  President  and  Vice- President  of  t!.e  United  States. 


List  of  all  the  persons  voted  for  by  the  electoral  college  of  the  State  of  Oregon, 
and  of  the  number  of  votes  cast  for  each  person,  at  the  city  of  Salem,  the  seat  of 
government  of  said  State,  on  Wednesday,  the  6th  day  of  December,  A.  D.  1876,  as 
provided  by  law,  for  President  of  the  United  States: 

Rutherford  B.  Hayes,  of  Ohio,  received  two  (2)  votes 2 

Samuel  J.  Tilden,  of  New  York,  received  one  (1)  vote 1 

Attest: 

E.  A.  CRONIN, 
J.  N.  T.  MILLER, 
JOHN  PARKER, 

Electors. 

List  of  all  the  persons  voted  for  by  the  electoral  college  of  the  State  of  Oregon, 
and  of  the  number  of  votes  cast  for  each  person  at  the  city  of  Salem,  the  seat  of 
government  of  said  State,  on  Wednesday,  the  6th  day  of  December,  A.  D.  1876,  as 
pj  ovided  by  law,  for  Vice-Presidont  of  the  United  States : 

William  A.  Wheeler,  of  New  York,  received  two  (2)  votes 2 

Thomas  A.  Heudricks,  of  Indiana,  received  one  (1)  vote 1 

Attest : 

E.  A.  CRONIN, 
J.  N.  T.  MILLER, 
JOHN  PARKER. 

Electors. 

We,  the  undersigned,  duly  appointed  electors  to  cast  the  votes  of  the  State  of 
Oregon  for  Presidential  and  Vice-President  of  the  United  States,  hereby  certify  that 
the  lists  of  all  the  electoral  votes  of  the  said  State  of  Oregon  given  for  President 
of  the  United  States,  and  of  all  the  votes  given  for  Vice-Preaident  of  the  United 
States,  are  contained  herein. 

E.  A.  CRONTN, 
J.  N.  T.  MILLER, 
JOHN  PARKER, 

Electors. 


OBJECTION  No.  1. 

The  undersigned  Senators  and  members  of  the  House  of  Representatives  of  the 
United  States  object  to  the  list  of  names  of  the  electors  E.  A.  Crouin,  J.  N.  T.  Mil 
ler,  and  John  Parker,  one  of  whom,  E.  A.  Cronin,  is  included  in  th^  certificate  of 
La  Fayette  Grover,  governor  of  Oregon ;  and  to  the  electoral  votes  of  said  State 
signed  by  E.  A.  Cionin,  J.  N.  T.  Miller,  and  John  Parker;  being  the  certificate 
second  presented  by  the  President  of  the  Senate  to  the  two  Houses  of  Congress  in 
joint  convention,  for  the  reasons,  following 


1.  Because  neither  of  said  persons,  E.  A.  Cronin,  J.  N'.  T.  Miller,  nor  John  Parker, 
•as  ever  appointed  elector  of  President  or  Vice-Presideut,  by  the  State  of  Oregon, 
it  her  in  the  manner  directed  by  the  Legislature  of  such  State  or  in  any  other  man 
er  whatsoever. 

2.  Because  it  appears  from  the  records  and  papers  contained  in  and  attached  to 
lie  certificate  of  W.  H.  Odell,  John  C.  Cartwright,  and  John  W.  Watts,  as  presented 


in  the  manner  directed  by  tho  Legislature  thereof,  and  duly  cast  their  votes  as 
such. 

3.  Because  it  does  not  appear  from  the  face  of  the  certificate  of  La  Fayette  Gro 
ver,  governor  of  tho  State  of  Oregon,  attached  to  and  made  a  part  of  the  returns  of 
the  votes  cast  by  E.  A.  Cronin,  J.  N.  T.  Miller,  aud  Johu  Parker,  that  such  certifi 
cate  was  issued  by  the  governor  to  the  three  persons  having  the  highest  number  of 
votes  for  electors  for  the  State  of  Oregon,  and  were  duly  chosen  and  appointed  by 


4.  Because  it  appears  from  the  certificate  of  S.  F.  Chadwick,  secretary  of  state, 
under  the  seal  of  the  State,  attached  to  and  made  apart  of  the  returns  and  certifi 
cate  of  W.  H.  Odell,  John  C.  Cartwright,  and  John  W.  Watts,  that  said  persons, 
W.  H.  Odell,  John  C.  Cartwright.  and  John  W.  Watts,  received  tho  highest  num 
ber  of  votes  at  the  election  on  the  7th  day  of  November,  1876,  for  tho  office  of  elect 
ors  of  President  and  Vice-President ;  and  that  the  secretary  of  state,  on  the  4th 
day  of  December  following,  officially  declared  in  pursuance  of  law  that  they,  Odell, 
Cartwright,  and  Watts,  had  received  the  highest  number  of  votes ;  aud  that  there 
fore  the  certificate  of  the  governor,  in  so  far  as  it  omitted  to  certify  the  name  of 
John  W.  Watts  as  one  of  the  electors  appointed,  and  in  so  far  as  such  certificate 
contained  the  name  of  E.  A.  Cronin  as  one  of  the  electors  appointed,  fails  to  con 
form  to  the  act  of  Congress  in  such  case  made  and  provided  aud  the  laws  of  Oregon 
in  that  behalf,  and  that  such  certificate  is,  as  to  said  Cronin,  without  authority  and 
of  no  oflfect. 

5  Because  it  appears  from  both  certificates  that  W.  H.  Odell  and  John  C.  Cart 
wright,  a  majority  of  the  electoral  college,  were  duly  appointed  electors  by  the  State 
of  Oregon  in  the  manner  directed  by  the  Legislature  thereof ;  that  their  record  pre 
sented  to  the  President  of  the  Senate,  and  by  him  to  the  two  Houses  of  Congress, 
shows  that  a  vacancy  in  the  office  of  elector  existed  on  the  day  fixed  by  law  for  the 
meetin"  of  the  electors,  and  that  such  vacancy  was  filled  by  the  appointment  of 
John  W.  Watts.  JOHN  H.  MITCHELL, 

A.  A.  SARGENT, 

United  States  Senators. 
WILLIAM  LAWRENCE, 
HORATIO  C.  BURCIIARD, 
JAMES  W.  McDILL, 
Members  House  of  Representatives. 


OBJECTION  No.  2. 

In  the  matter  of  the  electoral  vote  of  the  State  of  Oregon  for  President  and  Vice- 
President  of  the  United  States,  the  undersigned,  United  States  Senators  and  mem 
bers  of  the  House  of  Representatives,  make  the  following  objections  to  the  papers, 
purporting  to  be  the  certificates  of  the  electoral  votes  of  the  State  of  Oregon,  signed 
by  John  C\  Cartwright,  William  H.  Odell,  and  John  W.  Watts  : 

I  The  said  papers  have  not  annexed  to  them  a  certificate  of  the  governor  of  Ore 
gon,  as  required  to  be  made  and  annexed  by  sections  136  and  138  of  the  Revised 
Statutes  of  the  United  States. 

II  Tho  said  papers  have  not  annexed  to  them  a  list  of  the  names  of  the  said 
Cartwright  Odell,  and  Watts  as  electors,  to  which  the  seal  of  the  State  of  Oregon 
was  affixed  by  the  secretary  of  state  and  signed  by  the  governor  and  secretary,  as 
required  by  section  60  of  chapter  xiv,  title  9,  of  the  general  laws  of  Oregon. 

III  The  said  John  W.  Watts  therein  claimed  to  be  one  of  tho  said  electors  was, 
in  the  mouth  of  February,  1873,  appointed  a  postmaster  at  La  Fayette,  In  the  State  of 
Oregon    and  was  duly  commissioned  and  qualified  as  such  postmaster,  that  being 
an  office  of  trust  and  profit  under  the  laws  of  the  United  States  and  continued  to 
be  and  act  as  such  postmaster  from  February,  1873,  until  after  the  13th  day  ot  No- 
vember.  1876,  and  was  acting  as  such  pos.tmaster  on  the  7th  dayof  November,  18<6, 
when  presidential  electors  were  appointed  by  the  State  of  Oregon ;  and  that  he,  the 
said  John  W.  Watts,  was  ineligible  to  be  appointed  as  one  of  the  said  presidential 
electors. 


298 


ELECTORAL  COMMISSION. 


IV.  "When  the  governor  of  Oregon  caused  the  lists  of  the  names  of  the  electors 
of  said  State  to  lie  made  and  certified,  such  lists  did  not  contain  the  name  of  the 
said  John  W.  "Watts,  but  did  contain  the  names  of  John  C.  Cartwright,  Will- 
i,im  H.  Oilell,  and  E.  A.  Cronin,  who  were  duly  appointed  electors  of  President  and 
Vice-President  of  the  United  States  in  the  State  of  Oregon  on  the  7th  day  of  No 
vember,  18 1 6. 

V.  It  was  the  right  and  duty  of  the  governor  of  Oregon,  under  the  laws  of  that 
State,  to  give  a  certificate  of  election  or  appointment  as  electors  to  John  C.  Cart- 
wright,  William  II.  Odell,  and  E.  A.  Crouin,  they  being  the  three  persons  capable 
of  boinsr  appointed  presidential  electors  who  received  the  highest  number  of  votes 
at  the  election  hold  in  Oregon  on  the  7th  day  of  November,  1876. 

VI.  The  said  John  C.  Cartwright  and  "William  H.  Odell  had  uo  right  or  authority 
in  law  to  appoint  the  said  John  W.  Watts  to  be  an  elector  on  the  6th  day  of  De 
cember,  1870,  as  there  was  no  vacancy  in  the  office  of  presidential  elector  on  that 
day. 

VII.  The  said  John  C.  Cartwright  and  "William  H.  Oilell  hail  no  right  or  author 
ity  in  law  to  appoint  the  said  John  W.  Watts  to  be  an  elector  on  the  Oth  day  of  De 
cember,  1876,  inasmuch  as  they  did  not  on  that  day  compose  or  form  any  part  of  the 
electoral  college  of  the  State  of  Oregon  as  by  law  constituted. 

VIII.  The  said  John  C.  Cartwrijjht  and  William  II.  Odell  had  no  authority  to  ap 
point  the  said  John  W.  "Watts  to  be  an  elector  on  the  Cth  day  of  December,  1870, 
because  the  said  Watts  was  still  on  that  day  the  postmaster  at  La  Fayottein  the 
SUite  of  Oregon,  and  was  still  on  that  day  holding  the  said  oth'co  of  profit  and  trust. 

JAMES  K.  KELLY, 

United  Sia.tes  Senator,  Oregon. 
HENRY  COOPER, 

United  States  Senator,  Tennessee. 
LEWIS  V.  BOGY, 

Untied  States  Senator,  Missouri. 

j.  E.  MCDONALD, 

United  States  Senator,  Indiana. 
J.  W.  STEVENSON, 

United  Mates  Senator,  Kentucky. 
DAVID  DUDLEY  FIELD,  of  New  York. 
J.  R.  TUCKER,  of  Virginia. 
LAFAYETTE  LANE,  of  Oregon. 
G.  A.  JENKS,  of  Pennsylvania. 
ANSEL  T.  WALLING,  of  Ohio. 
H1ESTER  CLYMER,  of  P,  nnsylvania. 
P.  D.  WIGGINTON,  of  California. 
E.  F.  POPPLETON,  of  Ohio. 
JOLLN  L.  VANCE,  of  Ohio. 
FRANK  H.  HURD,  of  Ohio. 
J.  K.  LUTTRELL,  of  Calif  ornia. 


OBJECTION  No.  3. 

The  undersigned  Senators  and  members  of  the  House  of  Representatives  of  the 
Urited  States  object  to  the  certificates  and  papers  purporting  to  be  certificates  of 
the  electoral  votes  of  the  State  </f  Oregon  cast  by  E.  A.  Crouin,  J.  N.  T.  Miller,  and 
John  Parker,  and  by  each  of  thi  m,  and  to  the  list  of  votes  by  them  and  each  of 
them  signed  and  certified  as  given  for  President  of  the  United  States  and  for  Vice- 
President  of  the  United  States,  for  the  following  reasons : 

1.  The  said  E.  A.  Crouin,  J.  N.  T.  Miller,  and  John  Parker  were  not,  nor  was 
either  of  them,  appointed  an  elector  of  President  and  V ice-President  of  the  United 
States  for  the  State  of  Oregon. 

a.  For  that  W.  H.  Odell,  J.  C.  Cartwright  and  J.  W.  "Watts  were  duly  appointed 
electors  of  President  and  Vice-President  of  the  United  States  for  the  State  of  Oi  e- 
gon,  and  as  such  electors,  at  the  time  and  place  prescribed  by  law,  east  their  votes 
for  Rutherford  B  Hayes  for  President  of  the  United  States  and  for  William  A. 
Wheeler  for  Vice-President  of  the  United  States;  and  the  list  of  votes  signed,  cer 
tified,  and  transmitted  by  such  electors  to  the  President  of  the  Senate  are  the  only 
true  and  lawful  lists  of  votes  for  President  and  Vice- President  of  the  United  States. 
3.  That  the  said  W.  H.  Odell,  J.  C.  Cartwright,  and  J.  W.  Watts,  received  the 
highest  number  of  all  the  votes  cast  for  electors  of  President  and  Vice-Pi esident 
of  the  United  States  by  the  qualified  voters  of  the  State  of  Oregon  at  the  election 
held  in  said  State  on  the  7th  day  of  November,  A.  D.  Ib7(i,  and  the  secretary  of 
state  of  Oregon  duly  canvassed  .said  votes,  and  made  and  certified  under  his  baud 
and  the  great  seal  of  the  Slate  of  Oregon  and  delivered  to  said  W.  H.  Odell,  J.  C. 
Cartwright,  and  J.  W.  Watts  two  lists  of  the  electors  of  President  and  Vice-Presi 
dent  of  the  United  States  elected  by  the  qualified  voters  of  said  htate  at  said  ekc- 
fioii,  and  showing  that  said  W.  H.  Odell,  J.  C.  Cartwripht,  and  J.  W.  Watts  were 
the  persons  having  the  highest  number  of  votes  of  raid  qualified  voters  at  nth 
election,  and  were  elected,  which  certificate  is  dated  the  lith  day  of  December,  A. 
D.  1876,  and  which  has  been  read  before  the  two  Houses  of  Congress ;  by  reasoii  of 
all  which  said  Odell,  Cartwright,  and  Watts  were  the  lawful  electors  of  President 
and  Vice-President  of  the  United  States  for  the  State  of  Oregon. 

JOHN  II.  MITCHELL, 
A.  A.  SARGENT, 

Senators, 

WILLIAM  LAWRENCE, 
GEO.  W.  McCRARY, 
EUGENE  HALE, 
N.  P.  BANKS, 
Members  of  the  House  of  Representatives. 


SOUTH  CAROLINA. 

CERTIFICATE  No.  1. 

STATE  OF  SOUTH  CAROLINA: 

Pursuant  to  laws  of  the  United  States,  I,  D.  H.  Chamberlain,  govemor  of  the 
State  of  South  Carolina,  do  hereby  certify  that  C.  C.  Bowen,  John  Winsmith, 
Thomas  B.  Johnston,  Timothy  Hurley,  W.  B.  Nash,  Wilson  Cook,  and  W.  F.  My 
ers,  hare  been  chosen  electors  of  President  and  Vice-President  of  the  United 
States,  ou  the  part  of  this  State,  agreeably  to  the  provisions  of  the  laws  of  the 
said  State,  and  in  conformity  to  the  Constitution  of  the  United  States  of  America, 
for  the  purpose  of  giving  in  their  votes  for  President  and  Vice-President  of  the 
United  Mates  for  the  term  prescribed  by  the  Constitution  of  said  United  Slates 
to  begin  on  the  4th  day  of  March,  in  the  year  of  our  Lord  one  thousand  eight  hun 
dred  and  seventy-seven. 

Given  under  my  hand  and  seal  of  the  State  of  South  Carolina,  at  Columbia,  this 
twenty-second  day  of  November,  A.  D.  one  thousand  eight  hundred  and  seventy- 


By  the  governor : 
[SEAL.]          H.  E.  HAYNE, 

Secretary  of  State. 


D.  H.  CHAMBERLAIN, 

Governor. 


List  of  persons  voted  for  as  President  of  the  United  States  of  America  for  the 
term  prescribed  by  the  Constitution  of  the  United  States  to  begin  on  the  fourth 
day  of  March,  in  the  year  of  our  Lord  one  thousand  eight  hundred  and  seventy- 
seven,  by  the  electoral  college  of  the  Stato  of  South  Carolina,  on  the  first  Wednes 
day  in  December,  in  the  year  of  our  Lord  one  thousand  eight  hundred  and  seventy- 
six,  at  Columbia.,  the  capital  of  said  Stato  of  South  Carolina,  with  the  number  of 
votes  for  each,  to  wit : 
Rutherford  B.  Hayes,  of  Ohio,  received  seven  (7)  votes. 

C.  C.  BOWEN. 

J.  WINSMITH. 

THOMAS  B.  JOHNSTON. 

TIMOTHY  HURLEY. 

W.  B.  NASH. 

WIl  SON  COOK. 

W.  F.  MYERS. 

We,  the  undersigned,  electors  of  President  and  Vice-Pi csident  of  the  United 
States  of  America,  appointed  by  the  Stato  of  South  Carolina,  at  the  generil  elec 
tion  held  on  the  seventh  day  of'  November  in  the  year  of  our  Lord  one  th  usaud. 
eight  hundred  and  seventy -six,  do  certify  that  the  foregoing  list  is  correct. 

In  witness  whereof  we  have  hereunto  set  our  hands  this  sixth  day  of  December, 
in  the  year  of  our  Lord  one  thousand  eight  hundred  and  seventy-six,  and  in  the 
one  hundred  and  first  year  of  the  Independence  of  the  United  States  of  America 

C.  C.  BOWEN, 

J.  WINSMITH. 

THOMAS  B.  JOHNSTON. 

TIMOTHY  HURLEY. 

W.  B.  NASH. 

WILSON  COOK. 

W.  F.  MYERS. 

List  of  persons  voted  for  as  Vice-President  of  the  United  States  of  America  for 
the  term  prescribed  by  the  Constitution  of  the  United  States  of  America  to  be 
gin  on  the  fourth  day 'of  March,  in  the  year  of  our  Lord  one  thousand  eight  hun 
dred  and  seventy-seven,  by  the  electoral  college  of  the  State  of  South  Carolina,  on 
the  first  Wednesday  in  December,  in  the  year  of  our  Lord  one  thousand  eight  hun 
dred  and  seventy-six,  at  Columbia,  the  capital  of  said  State  of  South  Carolina,  with 
the  number  of  votes  for  each,  to  wit : 
William  A.  Wheeler,  of  New  York,  received  seven  (7)  votes. 

C.  C.  BOWEN. 

J.  WINSMITH. 

THOMAS  B.  JOHNSTON. 

TIMOTHY  HURLEY. 

W.  B.  NASH. 

WILSON  COOK. 

W.  F.  MYERS. 

,  We,  the  undersigned,  electors  of  President  and  Vice-President  of  the  United 
Statt  s  of  America,  appointed  by  the  State  of  South  Carolina,  at  the  general  elec 
tion  held  on  the  seventh  day  of  November,  in  the  year  of  our  Lord  one  thousand 
eight  hundred  and  seventy-six,  do  certify  that  the  foregoing  list  is  correct. 

In  witness  whereof  wo  have  hereunto  set  our  hands  this  sixth  day  of  December, 
in  the  year  of  our  Lord  one  thousand  eight  hundred  and  seventy-six,  and  in  the 
one  hundred  and  first  year  of  the  Independence  of  the  United  States  of  America. 

C.  C.  BOWEN". 

J.  WINSMITH. 

THOMAS  B.  JOHNSTON. 

TIMOTHY  HURLEY. 

W.  B.  NASH. 

WILSON  COOK. 

W.  F.  MYERS. 


CERTIFICATE  No.  2. 

STATE  OF  SOUTH  CAROLINA,  ss : 

We,  the  undersigned,  electors  of  President  and  Vice-President  of  the  United 
States  of  America  for  the  next  ensuing  regular  term  of  the  respective  offices  thereof, 
being  electors  duly  and  legally  appointed  by  and  for  the  Stato  of  South  Carolina, 
as  will  hereinafter  appear,  liaving  met  and  convened  in  the  city  of  Columbia,  at 
the  capitol  of  the  State,  in  pursuance  of  the  direction  of  the  Legislature  of  the  State 
of  South  Carolina,  on  the  first  Wednesday,  the  sixth  day.  of  December,  in  Ihe  year 
of  our  Lord  one  thousand  eight  hundred  and  seventy-six,  do  hereby  certify  that, 
beinsr  so  assembled,  duly  qualified  according  to  the  provisions  of  the  constitution  of 
said  State,  by  taking  and  subscribing  the  proper  oath  of  otlice  therein  prescribed, 
and  organized,  we  proceeded  to  vote  by  ballot,  and  balloted  first  for  such  President 
aud  then  for  such  Vice-President,  by  distinct  ballots. 

The  list  of  the  names  of  the  electors,  signed  by  the  governor,  with  the  seal  of  the 
State  affixed  thereto,  as  required  by  law,  is  not  attached,  and  its  absence  is  ex 
plained  by  the  following  statement : 

First.  We  claim  to  have  been  duly  appointed  electors  by  the  State  of  South  Caro 
lina  in  the  manner  directed  by  the  Legislature  thereof,  and  to  have  been  elected  by 
general  ticket,  and  to  have  received  the  highest  number  of  votes  at  the  election  for 
President  and  Vice-President,  held  on  the  seventh  day  of  November,  A.  D.  1876, 
aud  that  such  election  will  appear  by  a  proper  examination  of  the  legal  returns  of 
the  managers  of  election  for  the  different  precincts  in  the  counties  of  the  State, 
made  to  their  respective  boards  of  county  canvassers,  which  do  not  sustain,  but  are 
directly  opposed  to,  the  statements  of  votes  given  for  electors  in  the  several  conn- 
ties  forwarded  and  certified  to  the  State  board  of  canvassers  by  the  commissioners 
of  election  or  boards  of  canvassers  in  such  counties. 

Second.  The  board  of  State  canvassers,  after  a  pretended  canvass  of  the  returns 
of  the  election,  made  an  erroneous,  imperfect,  and  false  statement  of  the  result  of 
said  election,  and  illegally  declared  the  result  to  be  as  follows : 


Theodore  G  Barker 90,896 

Samuel  McGowan 90,737 

J.  w.  Harrington 90,  H)5 


J.  I.  Ingram 


90,  798 


William  Wallace 90,  905 

JolmB.Erwin 90,900 

Robert  Aldrich 90,  800 


C.  C.  Bowen !)J,786 

John  Winsmith 91,870 

Thomas  B.  Johnston 91,  852 

Timothy  Hurley 91, 136 

William  B.  Nash 91,804 

Wilson  Cooke 91,43.2 

H.F.Myers 91,830 


Third.  In  this  illegal  and  invalid  canvass  of  the  votes  given  for  the  electors  of 
President  and  Vice-President,  the  board  of  State  canvassers,  after  canvassing  the 
votes  of  six  of  the  counlies  of  the  State  by  comparing  the  statements  of  the  county 
boards  of  canvassers  with  the  returns  of  1  he  precinct  managers  in  said  counties,  and 
after  discovering  serious  discrepancies  between  such  statements  and- such  returns, 
showing  errors  in  the  statements  of  the  county  canvassers,  refused  to  continue  such 
comparison  and  verification  as  to  the  remaining  twenty-six  counties  in  the  State, 
also  refused  to  allow  copies  of  such  returns  to  be  made,  and  confined  their  canvass 


ELECTORAL  COMMISSION. 


and  count  to  the  aggregation  of  the  erroneous  returns  of  county  canvassers,  and 
upon  such  count  declared  the  above  erroneous  and  false  result. 

Fourth.  The  undersigned,  who  claim  that  they  are  duly  elected  electors,  filed  in 
the  supremo  court  of  South  Carolina  a  suggestion  for  wilt  of  mandamus  to  require 
the  hoard  of  State  canvassers  to  correct  the  count  according  to  the  true  vote  of  tho 
people  as  cast  at  said  election,  hut  pending  that  proceeding,  of  which  tho  board  had 
due  notice,  the  board  determined  and  certified  the  persons  elected  upon  the  above 
erroneous  count,  and  after  making  a  return  to  the  court,  and  before  tho  decision 
thereof,  secretly  and  unlawfully  adjourned  in  defiance  and  contempt  of  tho  authority 
of  the  supreme  court.  Tho  secretary  of  state,  upon  such  erroneous  statement  and 
illegal  determination  unlawfully  certified  to  him,  caused  a  copy  of  the  certified  de 
termination  of  the  board  of  State  canvassers  to  be  delivered  to  each  of  the  persons 
therein  declared  to  be  elected,  viz,  Christopher  O.  Bo  wen,  John  Winsmith,  Thomas 
B.  Johnston,  Timothy  Hurley,  William  B.  Nash,  Wilson  Cooke,  and  H.  F.  Myers. 

The  undersigned  thereupon  filed  in  the  supremo  court  of  the  State  their  sugges 
tion  for  a  wilt  of  quo  warranto,  disputing  the  election  of  said  persons  and  the  valid 
ity  of  their  legal  title  to  the  offices  of  electors,  which  proceeding  also  is  now  pend 
ing  in  said  court. 

Fifth.  Tho  undersigned,  as  electors  duly  appointed,  made  demand  upon  the 
secretary  of  state  for  tho  lists  required  by  law,  and  ho  refused  to  deliver  the  same  ; 
and  we  further  certify  that  tho  following  are  two  distinct  lists,  one  of  the  votes  for 
President  and  tho  other  of  the  votes  for  Vice-President : 

List  of  all  person*  voted  for  as  President,  with  the  number  of  votes  for  each. 


Names  of  persons  voted  for. 

Number  of  votes. 

S  imuel  J  Tilden  of  the  State  of  Now  York  

Seven,  (7.) 

List.  of  oil  persons  voted  for  as  Vice-President,  with  the  nunibf 

r  of  votes  for  each. 

Names  of  persons  voted  for. 

Number  of  votes. 

Seven,  (7.) 

In  witness  whereof  wo  have  hereunto  set  our  hands. 

Done  at  No.  101  Richardson  street,  in  tho  city  of  Columbia  and  Stato  of  South 
Carolina,  tho  sixth  day  of  December,  iu  the  year  of  our  Lord  one  thousand  eight 
hundred  and  seventy-six,  and  of  tho  Independence  of  the  United  States  of  America 
tho  one  hundred  and  first. 

THEODORE  R.  BARKER. 

S   McGOWAN. 

JNO.  W.  HARRINGTON. 

JNO.  ISAAC  INGRAM. 

WM.  WALLACE. 

JOHN  B.  ERWIN. 

ROBT.  ALDRICH. 


OBJECTION  No.  1. 

The  nndersio-ned  Senators  of  the  United  States  and  members  of  tho  House  of 
Representatives  object  to  the  certificates  and  papers  purporting  to  he  certificates 
of  the  electoral  votes  of  tho  State  of  South  Carolina  cast  by  C.  C.  Bo\ven,  D.  W  in- 
smith,  T.  B.  Johnson.  Timothy  Hurley,  W.  B.  Nash,  Wilson  Cook,  and  W.  B.  Mey 
ers,  on  tho  following  grounds  : 

For  that  no  legal  election  was  held  in  the  State  of  South  Carolina  for  presidential 
electors  tho  General  Assembly  of  that  State  not  having  provided,  as  required  by 
article  8,  section  3,  of  the  constitution  thereof,  for  the  registration  of  persons  en 
titled  to  vote,  without  which  registration  no  valid  or  legal  election  could  behold. 

II. 

For  that  there  was  not  existing  in  the  State  of  South  Carolina  on  tho  fist  day  of 
January  1876,  nor  at  any  time  thereafter,  up  to  and  includingthe  10th  day  of  Decem 
ber,  Ib7tj,  a  republican  form  of  government  such  as  is  guaranteed  by  the  Constitu 
tion  to  every  State  iu  the  Union. 

For  that  the  Federal  Government  prior  to  and  during  the  election  on  the  7th  day 
of  November,  187<i,  without  authority  of  law,  stationed  in  various  part  i  of  tho  said 
State  of  South  Carolina,  at  or  near  the  polling-places,  detachments  of  the  Army  of  the 
United  States,  by  whose  presence  the  full  exercise  of  the  right  of  su  tfrage  was  pre 
vented,  and  by  reason  whereof  no  legal  or  free  election  was  or  could  be  had. 

IV. 

For  that  at  tho  several  polling-places  in  the  said  State  there  were  stationed  deputy 
marshals  of  the  United  States,  appointed  under  the  provisions  of  sections  2021  and 
2022  of  the  Revised  Statutes  of  the  United  States,  which  provisions  were  unconsti- 
tntional  and  void.  That  the  said  deputy  marshals,  exceeding  over  one  thousand 
in  number  by  their  unlawful  and  arbitrary  action,  in  obedience  to  the  improper 
and  illegal  instructions  received  by  thorn  from  tho  Department  of  Justice,  so  inter 
fered  with  the  full  and  free  exercise  of  the  right  of  suffrage  by  the  duly  qualified 
voters  of  the  said  State  of  South  Carolina  that  a  fair  election  could  not  be  and  was 
not  hold  in  the  said  State  of  South  Carolina  on  the  said  7th  day  of  November,  18<G. 

V. 

For  that  there  was  not  from  the  1st  day  of  January,  1876,  up  to  and  includingthe 
10th  day  of  December,  1876,  at  any  time  n  State  government  iu  the  State  ot  boutn 


Ca  olina,  exceptapretended  government  setup  in 
tution  of  the  United  States  by  Federal  authority, 

JOHN  W.  JOHNSTON,' 

United  Slates  Senator.  Virginia. 

W.  H.  BARNUM. 

United  Statex  Kena'or.  Connecticut. 

ALEX.  G.  COCIIRANE,  of  Pennsylvania. 

M.  I.  SOUTHARD. 

FERNANDO  WOOD. 

J.  A.  McMAHON. 

W^  S  STENGER 

WM.  MUTCHLER,  of  Pennsylvania. 

GEO.  C.  CABELL.  of  Virginia. 

JAMES  SHEAKLEY. 

LEV!  MAISII,  of  Pennsylvania. 

WM.  WALSH. 

WM.  M.  ROBBINS,  of  North  Carolina. 

WM.  A.  J.  SPARKS. 

E.  F.  POPPLETON. 

A.  T.  WALLING,  of  Ohio. 

THOS.  S.  ASHE. 

A.  M.  SCALES. 


violation  of  la  wand  of  the  Consti- 
and  sustained  by  Federal  troops. 

CHARLES  B.  UOBERTS. 

D.  F.  COLLINS. 

JAC.  TURNEY. 

A.  V.  RICE,  of  Ohio. 

B.  F.  FRANKLIN,  of  Missouri. 
CHARLES  P.  THOMPSON. 
JNO.  J.  PHILIPS,  of  Missouri. 
WM.  S.  UOLMAN  of  Indiana. 
G.  A.  JENKS,  of  Pennsylvania. 
J.  M.  BRIGHT,  of  Tennessee. 
S.  S.  COX.  of  New  York. 
JNO.  B.CLARK,  JK. 

G.  C.  WALKER. 

R.  A.  DE  BOLT. 

JOHNR.  El 'EN. 

J.  R.  TUCKER,  of  Virginia. 

J.  B.  CLARKE,  of  Kentucky. 

THOS.  L.  JONES,  of  Kentucky. 

J.  PROCTOR  KNOTT. 


OlMKCTION  NO.  2. 


uei  mcuowan,  joon  vv.  Harrington,  .jouu  j..  -ingrarn.  \viiiiam  waiiace,  joun  LS.  jiir- 
wiu,  and  Robert  Aldrich,  and  by  each  of  them,  and  to  the  list  of  voters  by  them  and. 
each  of  them  signed  and  certified  as  given  for  President  of  the  United  States  and. 
for  Vice-President  of  the  United  States,  for  tho  following  reasons: 

I.  Tho  said  Theodore  G.  Barker,  Samuel  McGowaa,  John  W.  Harrington,  John 
I.  Ingram,  William  Wallace,  John  B.  Erwiu,  and  Robert  Aldrich  were  not,  nor 
was  either  of  them,  appointed  an  elector  of  President  and  Vice-President  of  tho 
United  States  for  the  State  of  South  Carolina. 

II.  Tho  said  papers  have  not  annexed  to  them  a  certificate  of  the  governor  of 
South  Carolina,  as  required  to  bo  made  and  annexed  by  sections  136  and  13d  of  tho 
Revised  Statutes  of  the  United  States. 

III.  The  said  papers  have  not  annexed  to  them  a  list  of  the  names  of  the  said 


Wheeler  for  Vice-President  of  the  United  States,  and  the  list  of  votes  signed,  cer 
tified,  and  transmitted  by  such  electors  to  tho  President  of  the  Senate  are  th-i  only 


true  and  lawful  lists  of  votes  for  President  and  Vice-President  of  the  United  States. 

V.  That  tho  said  C.  C.  Bowen,  John  Winsmith,  Thomas  B.  Johnston,  Timothy 
Hurley,  Wm.  B.  ^"ash,  Wilson  Cook,  and  Wm.  F.  Myers  received  tho  highest  num 
ber  of'all  the  votes  cast  for  electors  of  President  and  Vice-President  of  tho  United 
States  by  the  qualified  voters  of  the  State  of  South  Carolina  at  the  election  held  in 
said  State  on  tho  7th  day  of  November,  A.  D.  1370,  and  tho  proper  officers  of  tho 
State  of  South  Carolina  duly  canvassed  said  vot>>s  and  made  and  certified  according 
to  law,  and  under  the  great  seal  of  tho  State  of  South  Carolina,  and  delivered  to 
said  C.  C.  Bowen,  John  Wiusmith,  Thomas  B.  Johnst  n,  Timothy  Hurley,  William 
B.  Nash,  Wilson  Cook,  and  William  F.  Myers  lists  of  the  electors  of  President  and 
Vice-President  of  the  United  States  elected  by  the  qualified  voters  of  said  State  ab 
said  election,  and  showing  that  said  C.  C.  Bowen,  John  Wiusmith.  Thomas  B.  John 
ston,  Timothy  Hurley,  William  B.  Nash,  Wilson  Cook,  and  William  F.  Myers, 
were  tho  persons  having  tho  highest  number  of  votes  of  said  qualified  voters  at 
such  election  and  were  elected,  which  certificate  is  dated  tho  Oth  day  of  December, 

A.  D.  1876,  and  which  has  been  read  before  the  two  Houses  of  Congress  ;  by  reason 
of  all  which  said  Bowen,  Winsmith,  Johnston.  Hurley,  Nash,  Cook,  and  Myers 
were  tho  lawful  electors  of  President  and  Vice-President  of  the  United  States  for 
the  State  of  South  Carolina. 

VI.  That  the  list  of  votes  cast  bv  the  said  C  C.  Bowen,  John  Winsmith.  Thomas 

B.  Johnston,  Timothy  Hurley,  William  B.  Nash,  Wilson  Cook,  and  William  F. 
Myers,  for  President  of  the  United  States  and  for  Vice-Presidont  of  the  United 
States,  have  annexed  to  them  a  certificate  of  tho  governor  of  the  State  of  South 
Carolina,  required  to  be  made  by  sections  136  and  138  of  the  Revised  Statutes  of  tho 
United  States. 

VII.  That  said  lists  of  votes  have  annexed  to  them  a  list  of  the  names  of  the  said 

C.  C.  Bowen,  John  Winsmith,  Thomas  B.  Johnston,  Timothy  Hurley,  William  15. 
Nash,  Wilson  Cook,  and  William  F.  Myers  as  electors,  to  which  tho  seal  of  the 
State  of  South  Carolina  was  affixed  by  tho  secretary  of  state,  and  signed  by  the 
governor  and  secretary,  as  required  by  the  general  laws  of  South  Carolina. 

JNO.  J.  PATTERSON, 
ANGUS  CAMERON, 
I.  P.  CHRISTIANCY, 

Seiwtors. 

WILLIAM  LAWRENCE, 
E.  G.  LAPHAM, 
N.  P.  BANKS, 
ROBERT  SMALLS, 
S.  L.  HOGE, 
J.  H.  EAINEY, 

Kepresentatlr.es. 


INDEX 


A. 


Page. 


ABBOTT,  JOSIAH  G.,  a  Representative  from  Massachusetts,  mem 
ber  of  the  Commission — 

appointed  by  the  House 2,273 

sworn  aud  certificate  of  oath  filed 2,273 

motions  made  by — 

to  adjourn 103,149,159,277,281 

to  take  a  recess 191 

that  the  papers  accompanying  the  objections  in  the  case  of 

Florida  be  printed 3 

that  Mr.  Jenks  have  a  full  hour  for  argument 61, 277 

that  the  time  for  discussion  be  extended  to  six  hours  on  a 

side 71,277 

that  all  papers  in  the  case  of  Oregon  be  printed 119 

that  each  Commissioner  have  leave  until  March  10,  proximo, 
in  which  to  file  for  publication  in  the  Record  an  opinion 
respecting  the  cases  that  have  at  present  been  acted 

on  by  the  Commission 280 

orders  submitted  by — 

that  in  the  case  of  Florida  the  Commission  will  receive  evi 
dence  relating  to  the  eligibility  of  Frederick  C.  Hum 
phreys,  one  of  the  persons  named  in  Certificate  No.  1, 
as  elector 33, 275 

that  the  injunction  of  secrecy  imposed  on  the  action  had  Fri 
day,  February  9,  1877,  as  entered  in  the  Journal,  be  re 
moved  57,276 

that  the  injunction  of  secrecy  imposed  on  all  former  consul 
tations  of  the  Commission  be  removed 119,280 

that  the  vote  in  the  matter  now  pending  in  the  case  of  Ore 
gon  be  taken  at  four  o'clock  p.  m.  on  Friday,  February 
23,  1877 178,281 

that  all  certificates  and  the  objections  thereto  in  the  case  of 

Oregon  be  print  ed -.  280 

resolutions  offered  by — 

that  evidence  will  be  received  to  show  that  so  much  of  the 
act  of  Louisiana  establishing  a  returning  board  for 
that  State  is  unconstitutional,  and  the  acts  of  said  re 
turning  board  are  void.  Offered  as  a  substitute  for  an 
order  submitted  by  Mr.  Commissioner  Hoar 117, 278 

that  evidence  will  be  received  to  show  that  the  returning 
board  of  Louisiana,  at  the  time  of  canvassing  and  com 
piling  the  vote  of  that  State  at  the  last  election  in 
that  State,  was  not  legally  constituted  under  the  law 
establishing  it,  in  this :  that  ifc  was  composed  of  four 
persons  all  of  one  political  party,  instead  of  five  per 
sons  of  different  political  parties,  as  required  by  the  law 
establishing  said  board.  Offered  as  a  substitute  for  an 
order  submitted  by  Mr.  Commissioner  Hoar 117,278 

that  the  Commission  will  receive  testimony  on  the  subject 
of  the  frauds  alleged  in  the  specifications  of  the  coun 
sel  for  the  objectors  to  Certificates  Nos.  1  and  3.  Of 
fered  as  a  substitute  for  an  order  submitted  by  Mr. 
Commissioner  Hoar 117,278 

that  testimony  tending  to  show  that  the  so-called  returning 
board  of  Louisiana  had  no  jurisdiction  to  canvass  the 
votes  for  electors  of  President  and  V'ce-President  is 
admissible.  Offered  as  a  substitute  for  an  order  sub 
mitted  by  Mr.  Commissioner  Hoar 117,278 

that  evidence  is  admissible  that  the  statements  and  affida 
vits  purporting  to  have  been  made  and  forwarded  to 
said  returning  board  in  pursuance  of  the  provisions  of 
section  26  of  the  election  law  of  1872,  alleging  riot, 
tumult,  intimidation,  and  violence  at  or  near  certain 
polls  and  in  certain  parishes  were  falsely  fabricated 
and  forged  by  certain  disreputable  persons  under  the 
direction  and  with  the  knowledge  of  said  returning 
board ;  and  that  said  returning  board  knowing  said 
statements  and  affidavits  to  be  false  and  forged,  and 
that  none  of  the  said  statements  or  affidavits  were  made 
in  the  manner  or  form  or  within  the  time  required  by 
law,  did  knowingly,  willfully,  and  fraudulently  fail 
and  refuse  to  canvass  or  compile  more  than  ten  thou 
sand  votes  lawfully  cast,  as  is  shown  by  the  statements 
of  votes  of  the  commissioners  of  election.  Offered  as 
a  substitute  for  an  order  submitted  by  Mr.  Commis 
sioner  Hoar  . .  117, 278 


ABBOTT,  JOSIAH  G.— Continued. 
interlocutory  remarks  and  questions  by,  on  the — 

business  of  the  Commission 28,61,71,77,84,103,149, 191 

Florida  case 3,10,13,28,50,53 

Louisiana  case 58, 67, 68, 85, 86, 90, 95, 100, 105, 118 

Oregon  case 119,126,132,142,166,171,173 

South  Carolina  case 182,185,186 

arguments  by,  in  the  consultations  on  the — 

Florida  case 231 

Louisiana  case 234 

Oregon  case 234 

South  Carolina  case  237 

Act  of  Congress  under  which  the  Electoral  Commission  was  or 
ganized  1,27.5 

Adjournments  of  the  Electoral  Commission 2, 4, 

17,  29,  37,  38,  56,  57,  77,  103, 117, 119, 160, 178, 179, 181, 
193, 273, 274, 275, 276, 277, 278, 279, 280, 281, 283, 284,  285 
Authorities,  citations  of — 

Abbott  vs.  Vance,  contested-election  case  of 134, 137 

Abbott's  Digest 144 

Adkius  vs.  Brewer,  3  Cowen,  206 78 

Allen  vs.  Blunt,  3  Story  C.  C.,  742 144 

American  Law  Register,  U.  S 129, 148,224 

Arkansas  Reports,  volume  1,  pages  21,  595 124, 125 

Arnold  vs.  Lea,  Clarke  &  Hall,  601 ; 144 

Arthur  vs.  Franklin,  16  Ohio,  new  series,  193 74 

Attorneys-General,  Opinions  of,  volumes  2,  14 40, 147 

Badger  and  others  vs.  The  United  States  on  the  relation  of 

Bolton 40 

Baird  1-8.  The  Bank  of  Washington,  11  Seargeant  &  Rawles. ..  107, 

137, 149, 164 

Bank  of  Hamilton  vs.  Dudley,  2  Peters,  492 243 

Barnes  vs.  Adams,  2  Bartlett,  760 . 149 

Barne wal  &  Creswell,  6,  12 40, 99 

Bar  (ley  vs.  Fletcher,  39  Mo.  Reports,  388,  399 156, 17.") 

Batman  vs.  Magowan,  1  Metcali'e's  Kentucky  Reports,  533  ....   100 

Battle  vs.  Howard,  13  Texas,  345 186 

Battle  vs.  Mclver,  68  N.  C.  Reports,  459 129,230 

Bean  vs.  Thompson,  19  N.  H.,  115 149 

Black,  2,  page  599 244 

Blacket  vs.  Blizard 99 

BLackstoue's  Commentaries,  261 Id6 

Bleecker  vs.  Bond,  3  Wash.  C.  C.  Reports,  531 126 

Bloom  vs.  Burdick,  1  Hill,  330 78 

Bonuer  vs.  Lynch,  25  Louisiana  Annual  Reports,  268 95 

Bouvier's  Law  Dictionary,  title  Quorum 99 

Bradley  vs.  Fisher,  13  Wallace,  348 160 

Bridge  Proprietors  vs.  Hoboken  Company,  2  Wallace,  116 256 

Brightly's  Digest,  448-450 144,148 

Brison  vs.  Lingo,  26  Mo.,  496 74 

Broom  vs.  Hauley,  9  Penn.,  513 129 

Broom's  Legal  Maxims,  465 144 

Brown  vs.  The  City  of  Lowell,  8  Metcalfe,  175 116 

Burrowes,  3,  13(56 78 

Call  vs.  Stearns 9 

Calder  vs.  Bull,  3  Dallas 46,187 

Carpenter's  Case,  2  Parsons,  540 144 

Carsou  vs.  McPhetridge,  15  Indiana,  327 147 

Caudle  vs.  Seymour,  A.  and  E.,  volume  1,  page  892 114 

Charless  vs.  Lamberson,  1  Clarke,  (Iowa,)  435 74 

Chase's  Decisions,  1  Johnson's  Report,  425 146, 1(54 

Chief  Justice  Parsons,  5  Mass.,  533 155 

Chitty's  Pleading 24 

Christy  vs.  Pridgeon,  4  Wallace 24(; 

Church,  Chief  Justice,  opinion  of 204 

Clark  rs.  Buchanan,  2  Minnesota,  346 '253 

Clark  vs.  Hall,  871 148,183,230 

Clarke  on  Election  Contests,  page  156 134 

Cochrane  vs.  Jones,  14  Am.  Law  Register 147 

Cochraue  &  Rowe,  288 186 

Colchester,  Pickrell,  I,  503-507 186 

Colliu  vs.  Knoblock,  25  Louisiana,  263, 265 68,  IfO 

Commonwealth  vs.  Athearn,  3  Mass.,  285 15 

Commonwealth  vs.  Baxter,  35  Peun.,  263 100, 148,  If3 

Commonwealth  vs.  Brown,  1  S.  &  R.,  382 74 

Commonwealth  vs.  Cluley,'56  Penn.  Reports 42, 127, 128, 135, 146 


302 


ELECTORAL  COMMISSION. 


Page. 
Authorities,  citations  of— Continued. 

Commonwealth  vs.  Garrigues,  28  Penn.  Reports,  9 1 

Commonwealth  vs.  Hanlcy,  9  Penn.  Reports,  513 148, 163 

Commonwealth  rs.  Jones,  10  Bush,  Kentucky  Reports,  726 146 

Commonwealth  vs.  Leech,  44  Penn.  Reports,  332 100 

Commonwealth  rs.  Smith.  45  Penn.  Reports,  59 46 

Commonwealth  ex  rcl.  Broom  vs.  llanley,  9  Peun.  Reports,  513.  158 

Cornyii's  Digest,  title  Parliament  186 

Congressional  Globe,  volume  5,  pages  80-96 108, 156 

Congressional  Record,  volume  3,  part  3,  page  160 221 

Coustitut  ion  of  the  United  States,  the 8, 12, 

14,  16,  23,  26,  28,  31, 32, 34, 35, 36,  41, 45,  46,  47, 50, 52,  53,  55, 
59,  67,  73,  74,  77,  78,  110,  115, 123, 130, 131, 141, 144, 145, 146, 
148, 158, 170, 172, 186, 195, 197, 208, 209, 210, 213, 217, 222,  225 

Contested  Elections,  Clarke  &  Hall,  872 129 

of  1834  to  1865,  page  9 108 

Cooke  vs.  Loveland,  2  Bosanquet  and  Puller,  31 99 

Cooley  on  Const  it  utional  Limitations,  620 40, 99, 100, 146 

Coolidge  ra.  Brigham,  1  Allen,  335 155 

Corliss  Case,  16  Am.  Law  Register,  N.  S.,  15 147 

Court  of  Queen's  Bench,  11  A.  &E 45 

Cowen,  volume  4,  page  143 186 

Cusliing's  Law  and  Practice,  sections  634, 747 87 

Daniell's  Chancery  Practice 24 

Davis  vs.  State,  7  Maryland,  151 186 

Day  w.  Kent,  1  Oregon,  123 144 

Digest  of  Louisiana  Statutes,  volume  2 1 06 

Dillon  on  Municipal  Corporations,  volume  1 143,146 

Document  No.  123,  26th  Congress,  2d  session,  II.  R 40 

Dodd  ex  pane,  6  Bug.,  (Ark.,)  152 129, 230 

Downing  vs.  Ruger,  21  Wendell,  181 143 

Draper  vs.  Johnston,  C.  and  H.,  703 186 

Drew  i)».  Stearns 9. 14 

Ducher's  Reports,  N.  J.,  page  355 154 

Duchess  of  Kingston's  Case 25 

Easton  rs.  Scott,  C.  and  H.,  267,272 186 

Elliott's  Debates,  page  101 47 

Elmdorf  vs.  Taylor,  10  Wheaton,  159 243 

Elinwood  rs.  Macey,  2  Otis,  289 44 

Ensminger  vs.  Peo,  47  Illinois 74 

Federalist,  No.  21,  page  112 187 

Field  vs.  Seabury ,  19  Howard,  331 101 

Fish  rs.  Coll  ins,  21  Louisiana,  28i) 147 

Florida  election  laws,  section  4 245 

French  vs.  Fyan,  case  of 257 

Furman  vs.  Clute,  50  N.  Y.  Reports 42, 159 

Freeman  on  Judgments,  section  78 155 

Gaines  vs.  Thompson,  7  Wallace,  347 257 

Gallary  vs.  Merrill,  Clarke  &  Hall,  328 186 

Golden  vs.  Sharp,  Clarke  &  Hall,  410 183 

Gorham  vs.  Campbell,  2  Cal.,  135 144 

Gould  VH.  Hammond,  1  McAll,  235 144 

Grant  on  Corporations,  page  155 116 

'  Green  vs.  Ncal,  6  Peters 44,  54 

Green  vs.  Burke,  23  Wendell,  490,  502 36, 224 

Greer  vs.  Shackleford,  Constitutional  S.  C.  Reports,  642 :  100 

Grindley  vs.  Baker,  1  Bosanquet  and  Puller,  2*9 99 

Groves  vx.  Slaught  er,  15  Peters,  500,  501 EO 

Gulick  vs.  New,  14  Indiana  Reports,  93, 93. . 42, 124, 125, 127. 134, 147 

Hartley  vs.  The  Mayor  of  Albany,  33  N.  Y '.  154, 253 

Harden  berg  vs.  Farmers'  Bank,  2  Green,  N.  J.,  68 144 

Hawkins  vs.  The  Governor,  570, 595 155 

Hey  wood  on  County  Elections,  pages  511, 535 134, 183 

High  on  Extraordinary  Legal  Remedies 8, 15, 127 

llildre  th's   Heirs  vs.  Mclntyre's  Devisee,  Marshall's  Ky.  Re 
ports  36 

Hildreth  vs.  Mclut  ire,  1  J.  J.  Marshall,  206 224 

House  Document  No.  35,  part  3 44 

Howard's  Reports,  volumes  7,  8,  11,  14,  21,  23 9, 98, 243 

Hulsemau  and  Briukworth  vs.  Reeves  and  Siner,  41  Penn.  Re 
ports,  396 101,153 

Hunter  rs.  Chandler,  45  Missouri,  435 *. ...     46 

Hutehinson  VH.  Tilden  and  Boardley,  4  Harris  and.  McHenry  ..   128 

Illinois  Reports,  51,55 15,95 

Impeachmc  nt  of  Belknap,  Record,  volume  4,  part  7,  page  12  ..     50 

Indiana  Reports,  volumes  15, 41 124 

Inker  vs.  Commonwealth,  20  Penn.  Reports,  493 144 

Iowa  Reports,  volume  16,  page  284 99 

Johnson  v*.  Towsley,  13  Wallace,  72 257 

Johnson's  Reports,  page  184 15 

Johnston's  Reports,  page  364 3;{ 

Jones  VH  Reed,  1  Johnson's  Cases,  20 78 

Jones  vs.  State,  1  Kansas,  270 144 

Keller  vs.  Chapman,  34  Cal.,  635 144 

Kentucky  rs.  Deunis'm,  24  Howard,  66 256 

Kerr  and  others  vs.  Trego  and  others,  47  Penu.  Reports,  292 154 

King  vs.  Allen,  15  Eastman,  33 183 

King  vs.  Hawkins,  10  East,  210... 134 

King  vs.  The  Corporation  of  Bedford  Level,  6  East,  388 36 


Pago. 
Authorities,  citations  of — Continued. 

Knight  vs.  Wells,  Lutwych,  508 , 149 

Koerner  et  al.  vs.  Ridgley  et  al.,  21  Illinois  Reports,  65 15 

Lansing's  Reports,  volume  7,  page  275 114 

Limerick,  Perry  and  Knapp,  355 183 

Li  tchiield  vs.  Register  and  Receiver,  9  Wallace,  575 257 

Louisiana  Annual  Reports,  volumes  5,  6,  13,25..  .66, 95, 100, 108, 154 

Louisiana  Constitution 214 

Lord  Raymond,  2,  1144 78 

Luther  vs.  Borden,  7  Howard 98, 187, 257 

Lyner  vs.  State,  8  Indiana,  490 74 

Lyonrs.  Smith,  Clarke  &  Hall,  101 183 

Madison  Papers,  pages  343, 515 41 

Maine  Judges,  opinions  of,  appendix  to  volume  38 of  Reports.  -   146 

Maine  Reports,  volumes  25,  32,  38 33, 151,253 

Male  on  Elections,  page  336 134 

Manstield  vs.  Moor,  53  Illinois,  428 145 

Marbtiry  vs.  Madison,  1  Cranch 162 

Martin  vs.  Mott,  12  Wheaton,  19,  20 144, 155 

Massachusetts  Reports,  volume  17,  page  600 153 

Mayor  of  Rochester  vs.  The  Queen,  1  Blackburn  and  Ellis,  1024.     45 
McCrary's  Law  of  Elections. .  116, 135, 137, 143, 144, 146, 148, 149,  IK? 

McGregor  vs.  Balch,  14  Vermont,  428 137, 149 

McKenney  vs.  O'Connor,  26  Texas,  5 144 

McLaughlin  rs.  Sheriff  of  Pi  ttsburgh,  Legal  Journal,  July,  1888.   146 

McLean's  Reports,  page  512 50 

Metcalfe's  Kentucky  Reports,  I,  page  538  ., 95 

Miller  vs.  Supervisors  of  Sacramento  County,  25  Cal 158 

Mills  vs.  Durgee,  7  Crauch,  481 ..., 213 

Minnesota  Reports,  volume  15,  455 1~>4 

Missouri  Reports,  volume  39 125, 250 

Morgan  vs.  Qnackenbush,  22  Barbour,  72,  73,  77 116, 146, 154 

Morgan  vs.  Vance,  4  Bush  (Ky.)  Reports 179 

Morris  et  al.  vs.  Underwood  ei  al.,  19  Georgia  Reports,  563 15 

Ne  wcum  vs.  Kintley,  13  Ben.  Monroe 161 

New  Hampshire  Reports,  53,  page  640 33 

Newman  vs.  Jacobs,  17  Ohio  Reports 15 

New  York  Reports,  volume  55,  page  527 . .   114 

Nichols  vs.  City  of  Bridgeport,  27  Conn.  Reports 155 

Noble  vs.  United  States,  Dev.,  84 144 

Nourse  vs.  Clarke,  3  Nevada,  566 42 

Ohio  State  Reports,  volume  (5,  page  176 185 

Oregon,  constitution  of 132, 133. 142, 143, 146, 152 

election  la ws  of 133, 138, 199, 206, 219, 220 

Orkney  and  Shetland,  Frazier,  I,  369 186 

Pell  vs.  Ullmam,  21  Barbour,  500 228 

Pendleton  rs.  The  United    States,  2   Brockenborough's   Re 
ports,  75 126 

People  rs.  Ammons,  5  Gilruer,  107 137 

People  vs.  Bates,  11  Michigan,  363 144 

People  vs.  Coghill,  47  California,  361 228 

People  rs.  Cook,  4  Selden's  Reports 91,99,137,154 

People  rs.  Cook,  10  Bush,  743 91 

People  ?w.  Clute,  50  N.  Y.  Reports,  2151 136, 147 

People  vs.  Ferguson,  4  Cowan 74 

People  vs.  Goodwin,  22  Michigan,  498 100 

People  vs.  Johnson,  6  California,  673 74 

People  rs.  Miller,  16  Michigan,  56 153 

People  rs.  Mizner,  7  Cal.,  524 148 

People  rs.  Moliier,  23  Michigan,  341 147 

People  vs  Parker,  37  California  Reports 129, 148, 2:50,  248 

People  vs.  Pease,  27  N.  Y.  Reports,  54, 55 55, 145 

People  vs.  Po;  ter,  6  California  Reports,  27 50 

People  vs.  Reed,  6  Cal.,  288 248 

People  rs.  Strattou,28  California  Reports,  382 148,230 

People  vs.  Supervisors  of  Greene,  17  Barbour,  217 253 

People  rs.  Sweeting,  2  Johnson,  184 223 

People  vs.  Tibbetts,  4  Co\vden,358,381 223 

People  rs.  Tilton,37  California  Reports,  614 129, 148, 158 

People  rs.  Vail,  20  Wendell,  12 74 

People  vs.  Whitman,  10  California  Reports,  48 148 

Peters,  2,  6,  15 186,243 

Portertield  vs.  McCoy,  Clarke  &  Hall,  267 188 

Potter's  D  warris  on  Statutes,  228 40 

Powers  vs.  The  People,  4  Johnson's  Cases,  292 78 

Powers  vs.  Reed  and  others,  19  Ohio  Reports 205 

Pratt  rs.  People,  29  Illinois,  72 144 

Price  vs.  Baker,  41  Indiana  Reports 128, 147 

Price  vs.  Hopkins,  13  Michigan,  318 74 

Pritchard  ct  al.  vs.  The  People,  1  Gilmer's  Reports,  529 137 

Pulaski  Co.  vs.  Lincoln,  9  Arkansas,  320 228 

Queen  vs.  Blizzard,  2  Law  Reports  Queen's  Bench,  55 158 

Queeo  vs.  Mayor,  3  Law  Reports  Queen's  Bench,  629 134, 147 

Reg.  vs.  Coaks,  3  El.  and  B.,  253 43 

Revised  Statutes  . .  .42,  43, 67, 123, 127, 131, 141, 152, 191, 233, 243, 251 

Rex  rs.  Beeston,  3  Te'rm  Reports,  592 99 

Rex  rs.  Justices  of  Leicester,  7 40 

Rex  vs.  Lexdale,  1  Barr,  447 149 

Rex  vs.  Monday,  Cowper,  page  536 41 


INDEX. 


303 


Pago. 
Authorities,  citations  of — Continued. 

Ebode  Island,  statutes  of 43,48 

Rice  vs.  Ruddiuiann,  10  Michigan,  125 74 

Rochester  vs.  The  Queen,  1  Ell.,  BL,  ami  Ell.,  1031 272 

Salkeld,  403 78 

Saunders  vs.  Haynes,  13  California  Reports 135, 147, 149 

Scheuck  vs.  Peay,  1  Wool  worth's  C.  C.  Reports,  175..  208, 215, 230, 234 

Seaford,  Laders'lII,  3 186 

Searcy  vs.  Grow,  15  California  Reports,  118,  120,  121  ....42, 123,224 

Secretary  vs.  McGarrahau,  9  Wallace,  248 257 

Sedgwiyk  on  Constitutional  and  Statutory  Law,  page  370 40 

Senate  Journals,  1874,  1875 66 

Sergeant's  Court  Law,  (2  ed.,)  373 230 

Sharp  vs.  Dawes,  Law  Reports,  January,  1877 162 

Shelby  vs.  Gray,  11  Wheaton,  301 44 

Smith's  Leading  Cases —       9 

South wark  on  Elections,  page  259 134 

Spauldiug  vs.  Mead,  Clarke  &  Hall,  157 186 

Sprague  vs.  Norway,  30  Cal.,  173 144 

Starkie  on  Evidence 24 

State  vs.  Adams,  2  Stewart's  Ala.  Reports,  331 148 

State  vs.  Anderson,  Cox  Reports,  318 159 

State  vs.  Benedict,  15  Minnesota,  199 148, 230 

State  vs.  Boal,  46  Missouri,  528 146 

State  vs.  Brown,  5  Rhode  Island,  1 223 

State  vs.  City  of  Newark,  3  Butcher,  185 148 

State  w.  Cobb,  2  Kansas,  32 148 

State  vs.  Commissioners  of  Marion  County,  14  Ohio  Reports. ..   154 

State  vs.  County  Judge,  7  Iowa  Reports,  201 91 

State  vs.  Gastiuel,  18  Louisiana,  517 147 

State  VH.  Gartwcll,  20  Louisiana,  114 146 

State  vs.  Giles,  1  Chandler,  Wisconsin,  112 146 

State  vs.  Hufty,  11  Louisiana  Reports,  304 100 

State  vs.  Jeukins,  43  Missouri  Reports,  261 129, 148, 230 

State  vs.  Kurfule,  44  Missouri,  1">4 74 

State  V8.  Lynch,  25  Louisiana  Reports,  90 100 

State  vs.  Marlow,  15  Ohio  Reports,  114 100 

State  t-s.  Milburn,  9  Gill,  105 186 

Staters.  Newhall,  3  Dutcher,  197 147 

State  vs.  Robinson,  1  Kansas,  17 148 

State  vs.  Smith,  14  Wisconsin,  497 146 

State  vs.  Stumpf,  21  Wisconsin,  579 99 

State  vs.  S  \vearingcn,  12  Georgia,  23 146 

State  rs.  Towusley,  56  Missouri,  107 146 

State  vs.  Vail,  53  Missouri 146, 155 

State  ex  rel.  Attorney-General  vs.  Irwin,  Nevada,  111 148 

State  ex  rel.  Bashford  vs.  Barstow,  4  Wisconsin,  567 74 

State  ex  rel.  Bloxhain  vs.  Board  of  State  Canvassers,  13  Florida.  272 

State  Board  vs.  The  State,  1  Blackford's  Indiana  Reports 74 

State  Trials,  2 * 112 

State  of  Florida  rs.  Gleason,  Florida  Reports,  109 74 

State  of  Michigan  vs.  Phoanix  Bank,  33  N.  Y.  Reports 135 

St.  Louis  County  vs.  Sparks,  10  Missouri,  121 137, 149 

Stocking  vs.  State,  7  Indiana,  329 148 

Story  on  the  Constitution 48,88,132,148,230 

Strange,  1256 78 

Stratton  vs.  Oulton,  23  California  Reports,  51 129,-1!8,  230 

Sublett  vs.  Bid  well,  47  Mississippi,  26J 1 17 

Sublett  vs.  Tread  well,  47  Mississippi,  2G6 93 

Supervisors  vs.  Ready,  34  Illinois,  293 .     74 

Supervisors  vs.  United  States,  4  Wallace,  435 147 

Supreme  Court  of  New  York,  ex  parte  Heath,  3  Hill 46 

S witzler  rs.  Anderson,  2  Bartlett,  374 143 

Taylor  rs.  The  Governor,  Pike's  A'k.  Reports 155 

Taylor  vs.  Taylor,  20  Minnesota,  107 144 

Term  Reports,  3,6,  194,444 78,186 

Thatcher  vs.  Powell,  6  Wheaton,  1 19 215, 249 

Thompson  vs.  Whitman,  18  Wallace,  467 54 

Tioga  Railway  Company  vs.  Blossburg  Railroad,  20  Wallace, 

137 44,54 

Township  of  Elmwood  rs.  Marcy,  2  Otto,  289 54, 213 

United  States  vs.  Fareira,  13  Howard,  40 72 

United  States  rs.  Kirby,  7  Wallace,  482,  486 98 

United  States  vs.  Le  Baron,  19  Howard 162, 175 

Van  Renslaer  vs.  Van  Allen,  Clarke  &  Hall,  73 186 

Vermont  Reports,  volume  20,  page  473 154 

Vine'd  Abridgement,  16,  114 149 

Virginia  rs.  West  Virginia,  11  Wall.,  39 244,257 

Walker  rs.  Turner,  9  Wheatou,  541 78 

Wallace  Reports 98,243 

Ware  vs.  Hilton,  3  Dallas 110,116 

Warwick,  dishing,  S.  &  J.,401. 186 

Watts,  vol.  I,  page  54 186 

Wells  vs.  New  kirk,  1  Johnson's  Cases,  228 78 

Wendell's  Reports,  volumes  3,  10 91,99 

Weutworth  vs.  Farmington,  49  N.  H.,  120 228, 234 

West  Boylston,  dishing,  S.  &  J.,  394 136 

Wheaton,  12,  167,  168 243 

Whitman  vs.  Melony,  10  Cal.,  47 147 

Whitton,  Chief  Justice,  4  Wisconsin,  792 223 


Pago. 
Authorities,  citations  of — Continued. 

WTilcox  vs.  Smith,  5  Wendell,  231 224 

Wilkes  vs.  Luttrell,  case  of ' 134 

Wyuehamer  vs.  People,  13  N.  Y.,  (3  Kernan,)  392 187 

B. 

BAYARD,  THOMAS  F.,  a  Senator  from  Delaware,  member  of  the 
Commission — 

appointed  by  the  Senate 2,273 

sworn  and  certificate  of  oath  filed 2, 273 

motion  made  by,  that  the  offers  of  proof  submitted  by  Mr. 

Cochrane  be  printed 190,284 

resolutions  offered  by — 

that  no  person  holding  an  office  of  trust  or  profit  under  the 
United  States  is  eligible  to  be  appointed  an  elector, 
and  that  this  Commission  will  receive  evidence  tend 
ing  to  prove  such  ineligibility  as  offered  by  counsel  for 
objectors  to  Certificates  1  and  3.  Offered  as  a  substitute 
for  an  order  sub  mi  ted  by  Mr.  Commissioner  Hoar. 117, 279 
that  the  vote  of  W.  H.  Odell  and  the  vote  of  J.  C.  Cart  wright, 
cast  for  Rutherford  B.  Hayes,  of  Ohio,  for  President  of 
the  United  States,  and  for  William  A.  Wheeler,  of  New 
York,  for  Vice-President  of  the  United  States,  are  the 
votes  provided  for  by  the  Constitution  of  the  United 
States,  and  that  the  aforesaid  Odell  and  Cartwright, 
and  they  only,  were  the  persons  duly  appointed  elect 
ors  in  the  State  of  Oregon  at  the  election  held  Novem 
ber  7,  A.  D.  1876,  there  having  been  a  failure  at  the 
said  election  to  appoint  a  third  elector  in  accordance 
with  the  Constitution  and  laws  of  the  United  States 
and  tho  laws  of  the  State  of  Oregon  ;  and  that  the  two 
votes  aforesaid  should  bo  counted,  and  none  other, 
from  the  State  of  Oregon.  Offered  as  a  substitute  for 
a  resolution  offered  by  Mr.  Commissioner  Edmunds.  178, 282 
interlocutory  remarks  and  questions  by,  on  the — 

business  of  the  Commission 58 

Florida  case 21 

Louisiana  case 61,85,90,92,93,95 

South  Carolina  case 190 

arguments  by,  in  the  consultations  on  the — 

Florida  case , 207 

Louisiana  case 214 

Oregon  case 218 

South  Carolina  case 220 

Black,  Jeremiah  S.,  counsel- 
interlocutory  remarks  by,  on  the  Florida  case 19,20 

arguments  by,  on  the — 

Florida  case 24 

South  Carolina  case 190 

Blair,  Montgomery,  counsel — 

argument  by,  on  the  South  Carolina  case 188 

BRADLEY,  JOSEPH  P.,  an  Associate  Justice  of  the  Supreme  Court, 
member  of  the  Commission — 

selection  of,  pursuant  to  the  act  of  Congress 2,273 

sworn  and  certificate  of  oath  filed 2  273 

motions  made  by — 

to  adjourn 57,276 

to  take  a  recess 274 

that  the  rules  reported  be  considered  seriatim 2, 273 

that  there  be  two  arguments  in  the  Florida  case  this  day. 

[Saturday,  February  3,  1877,]  one  on  each  side 21 

that  counsel  may  take  such  time  as  they  desire,  if  any,  from 
the  time  previously  allowed,  four  and  a  half  hours, 
and  employ  it  in  the  discussion  of  the  question  of  the 
admissibility  of  the  proofs,  in  addition  to  the  two 

hours  already  allowed 87 

order  submitted  by,  that  time  consumed  by  conusel  on  ques 
tion  of  admission  of  evidence  beyond  the  two  hours 
allowed  be  deducted  from  that  allowed  on  final  argu 
ment 277 

interlocutory  remarks  and  questions  by,  on  the — 

business  of  the  Commission 80,  87, 1 19 

Florida  case 2,3,6,7,21,40,41 

Louisiana  case 58, 

59,  67,  73,  75,  84,  88,  89,  90,  92, 105, 106, 107, 113, 115 

Oregon  case 150, 164, 165, 171, 176 

South  Carolina  case 182 

arguments  by,  in  the  consultations  on  the — 

Florida  case 259 

Louisiana  case -- 261 

Oregon  case 264 

South  Carolina  case 266 

C. 

Campbell,  John  A.,  counsel — 

interlocutory  remarks  by,  on  the  Louisiana  case 71,87, 11 

argument  by,  on  the  Louisiana  case 110 

Carpenter,  Matt.  H.,  counsel — 

interlocutory  remarks  by,  on  the  Louisiana  case 71,93 

argument  by,  on  the  Louisiana  case 72 


304 


ELECTORAL  COMMISSION. 


Page, 
Catlin,  B.  E.,  an  assistant  secretary  of  the  Commission — 

appointed,  on  motion  of  President  Clifford 2,  273 

Christiancy,  Isaac  P.,  an  objector  on  the  part  of  the  Senate — 

interlocutory  remarks  by,  on  the  South  Carolina  case 180 

CLIFFORD,  NATHAN,  an  Associate  Justice  of  the  Supreme  Court, 
President  of  the  Commission — 

act  of  Congress  appointing 1 

sworn  and  certificate  of  oath  filed 2, 273 

rulings  and  remarks  from  the  chair,  by 2,  3, 4, 6, 

10, 14, 1(5, 17, 18,  19,  20,  21,  22,  24,  25,  26,  28,  29,  37,  38,  39, 
40,43,46,52,53,  55,  56,  57,  58,  61,  71,  72,  77,  80,  84,  85,  86, 
87,  90,  91,  92,  93,  97,  100,  103,  110,  116,  117,  118,  119,120, 
122,130,132,  141,  149,  150,  151,  160,  1(55,  166,  167,  168,169, 
175, 177,  178,  179,  180,  181,  184,  186,  188,  190,  191,  192,  193 
approval  of  the  proceedings  of  the  last  day's  session  by,  to  be 
considered  as  if  they  were  approved  by  the  Commis 
sion 193 

argument  by,  in  the  consultations  on  the  Florida  case 267 

letters  from,  to  the  President  of  the  Senate- 
transmitting   the  decision  of  the  Commission  in  the  case 
of — 

Florida 57,276 

Louisiana 119,280 

Oregon 179,283 

South  Carolina 193, 285 

communicating  a  resolution  touching  a  vacancy  in  the  Elect 
oral  Commission  occasioned  by  the  physical  inability 
of  Hon.  Allen  G.  Thurinan,  a  Senator  and  a  member  of 

said  Commission,  to  proceed  with  its  duties 179,  283 

letters  from,  to  the  Speaker  of  the  House  of  Representatives, 
informing  the  House  that  he  had  transmitted  the 
decision  of  the  Commission  in  the  case  of — 

Florida 57,276 

Louisiana 119,280 

Oregon 179,283 

South  Carolina 193,285 

Cochraue,  Alexander  G.,  an  objector  on  the  part  of  the  House — 

interlocutory  remarks  by,  on  the  South  Carolina  case 185,191 

argument  by,  on  the  South  Carolina  case 184 

Committees  appointed — 
%  to  report  rules  of  proceeding;  which  were  considered,  amended, 

and  adopted 2,273 

to  consider  the  allowances  to  be  made  to  the  officers  and  per 
sons  who  had  been  employed  in  the  service  of  the 

Commission 193, 285 

to  call  on  Mr.  Commissioner  Tlmrman  and  inquire  if  he  will 
consent  that  the  Commission  adjourn  to  his  house  for 
the  purpose  of  receiving  his  vote  on  the  question  re 
lating  to  Oregon 178, 282 

Communications  from  the — 

Senate 2,110,179,273,278,283 

House 2, 273 

two  Houses 2, 57, 119, 180, 273, 277, 280, 284 

Conover,  Simon  B.,  an  objector  on  the  part  of  the  Senate 3 

Cooper,  Henry,  an  objector  on  the  part  of  the  Senate 3 

D. 

Dunnell,  Mark  H.,  an  objector  on  the  part  of  the  House 3 

E. 

EDMUNDS,  GEORGE  F.,  a  Senator  from  Vermont,  member  of  the 
Commission — 

appointed  by  the  Senate 2,273 

sworn  and  certificate  of  oath  filed 2, 273 

motions  made  by — 

to  adjourn 3,4,17,57, 179,274,276,278,283,284 

to  take  a  recess" 2, 55, 56, 71, 87, 

122,  141, 149, 179, 180,  273, 274, 276, 277, 278, 280, 281, 283, 284 

that  the  motion  of  Mr.  Commissioner  Abbott  be  for  the  time 

being  laid  upon  the  table 3 

that  the  Secretary  of  the  Commission  be  directed  to  prepare 
and  have  printed  on  slips  the  names  of  the  members  of 
the  Commission  in  alphabetical  order  for  the  purpose 
of  being  used  in  taking  the  votes 4, 274 

that  after  six  o'clock  p.  m.  each  Commissioner  be  allowed  to 

speak  but  once,  and  not  longer  than  five  minutes 56 

that  those  who  offer  the  proof  shall  have  the  opening  and  the 

close 87 

that  one  copy  of  each  set  of  the  papers  in  the  case  of  Oregon 

be  read 120, 280 

that  the  Commission  grant  subpoenas  for  the  witnesses  narnod 
and  also  an  order  for  the  papers  called  for  from  the 
Post-Office  Department 122, 280 

that  the  Commission  proceed  with  the  case  of  Oregon  at  seven 
o'clock  in  the  Senate  Chamber,  and  that  counsel  have 
three  and  a  half  hours  for  argument  on  the  whole 
case ; 150,281 


PclgO. 

EDMUNDS,  GEORGE  F. — motions  made  by — Continued. 

that  a  letter  from  Mr.  Commissioner  Thurmau  be  placed  on 

file 179,283 

that  the  public  proceedings  of  the  Commission  be  considered 

closed 191 

that  the  certificates  received  from  the  President  of  the  Senate 

in  the  case  of  South  Carolina  be  read 284 

that  the  vote  on  the  question  pending  in  the  case  of  South 
Carolina  be  taken  by  six  o'clock  p.  in.  on  Tuesday,  Feb 
ruary  27,  1877 284 

orders  submitted  by — 

that  Commissioners  Abbott  and  Hoar  be  a  committee  to  con 
sider  and  report  whether  certain  papers  referred  to  in 
the  objections  of  C.  W.  Jones  and  others  ought  to  be 
printed  for  use  of  the  Commission 4, 274 

that  the  decision  and  report  submitted  by  the  committee  ap 
pointed  to  prepare  it  be  adopted  as  the  final  decision 
and  report  in  the  matters  submitted  to  the  Commission 
as  to  the  electoral  vote  of  the  State  of  Florida 56,276 

that  the  President  inform  the  Senate  by  letter  that  the  Com 
mission  has  considered  and  decided  upon  the  matter 
submitted  to  it,  under  the  act  of  Congress  concerning 
the  same,  touching  the  electoral  votes  from  the  State 
of  Florida,  and  transmit  the  same 57,  276 

that  the  President  inform  the  House  of  Representatives  by 
letter  that  the  Commission  has  considered  and  decided 
upon  the  matters  submit  ted  to  it,  under  the  act  of  Con 
gress  concerning  the  same,  touching  the  electoral  votes 
from  the  State  of  Florida,  and  has  transmitted  said  de 
cision  to  the  President  of  the  Senate,  and  transmit  the 
same 57,276 

that  counsel  now  be  heard  on  the  whole  subject  as  the  case 
now  stands,  and  that  four  hours  on  a  side  be  allowed. 
Submitted  as  a  substitute  for  motion  of  Mr.  Commis 
sioner  Strong 84-86, 277 

that  the  decision  and  report  submitted  by  the  committee  ap 
pointed  to  prepare  it,  be  adopted  as  the  final  decision 
and  report  in  the  matters  submitted  to  the  Commission 
as  to  the  electoral  vote  of  the  State  of  Oregon 178,282 

that  the  President  inform  the  Senate  by  letter  that  the 
Commission  has  considered  and  decided  upon  the  mat 
ters  submitted  to  it,  under  the  act  of  Congress  concern 
ing  the  same,  touching  the  electoral  votes  from  Hie 
State  of  Oregon,  and  transmit  the  same 179, 283 

that  the  President  inform  the  House  of  Representatives  by 
letter  that  the  Commission  has  considered  and  decided 
upon  the  matters  submitted  to  it.  under  the  act  of  Con 
gress  concerning  the  same,  touching  the  electoral  votes 
from  the  State  of  Oregon,  and  has  transmitted  said  de 
cision  to  the  President  of  the  Senate,  and  transmit 
the  same 179, 283 

that  the  President  of  the  Commission  inform  the  Senate  by 
letter  that  there  is  a  vacancy  therein,  occasioned  by 
the  physical  inability  of  Hon.  Allen  G.  Thurman,  a 
Senator  and  a  member  of  said  Commission,  to  proceed 
with  its  duties 179,283 

that  a  vote  on  the  question  pending  in  the  case  of  South 
Carolina  be  taken  by  six  o'clock  p.  m.  on  Tuesdav, 
February  27,  1877 "..  192 

that  after  six  o'clock  p.  m.  each  Commissioner  be  allowed  to 

speak  but  once  and  not  longer  than  five  minutes 275 

that  counsel  proceed  with  argument  in  the  same  manner  as 
in  the  case  of  the  State  of  Florida,  counsel  offering 
evidence  to  open  and  close  argument 277 

that  the  President.  Commissioners  Frelinghuysen  and  Payne, 
be  a  committee  to  consider  a  proper  allowance  as  com 
pensation  to  the  employds,  and  report  the  same  at  the 

next  meeting  of  the  Commission 285 

resolutions  offered  by — 

that  the  decision  of  the  Commission  in  the  case  of  Florida, 

as  submitted,  be  adopted 56, 275 

that  the  certificate  signed  by  E.  A.  Crouiu,  J.  N.  T.  Miller, 
and  John  Parker,  purporting  to  cast  the  electoral  votes 
of  the  State  of  Oregon,  does  not  contain  nor  certify 
the  constitutional  votes  to  which  the  State  is  en 
titled  177,281,282 

that  the  President  of  the  Commission  inform  the  Senate  that 
Hon.  Allen  G.  Thurman,  a  member  of  this  Commission, 
is  physically  unable  to  perform  his  duties  as  a  Com 
missioner,  that  the  vacancy  so  created  be  filled  ..  .179,283 
<   interlocutory  remarks  and  questions  by,  on  the — 

business  of  the  Commission 4, 

58, 72, 77, 80, 84, 87, 103, 141, 149, 1,'>0, 181 

Florida  case 3,6,10,12,15,17,20,21,23,41,54,55 

Louisiana  case 68, 

76, 77,  84, 85,  86, 88, 89, 90, 91, 93, 101, 105, 113, 115, 1  lli 

Oregon  case 119, 

120,  122,  128,  129,  142,  151,  156, 159, 163, 166. 176, 177 

South  Carolina  case 180,189,190,191 


INDEX. 


Page. 
Evarts,  William  M.,  counsel — 

interlocutory  remarks  by,  on  the — 

Florida  case 3,17,18,19,21,22,25,26,28,37,33,39,55 

Louisiana  case 57, 

59, 71, 76, 80,  84,  85, 86,  87, 92,  93, 98, 103, 116, 117, 118 

Oregon  case 149,165,166,167,177 

arguments  by,  on  the — 

Florida  case 29,  49 

Louisiana  case 103 

Oregon  case 169 

F. 

Ferry,  T.  W.,  President  of  the  Senate — 
communication  by,  on  the — 

Florida  case 2, 273 

Louisiana  case 57, 277 

Oregon  case 119, 280 

South  Carolina  case 180,284 

communication  from,  announcing  the  appointment  of  Hon. 
Francis  Keruan  to  fill  the  vacancy  in  tne  Commis 
sion  created  by  the  inability  of  Hon.  Allen  G.  Thur- 
mun  to  perform  the  duties  required  by  the  act  of  Con 
gress  establishing  the  said  Commission 179, 283 

Field,  David  Dudley,  an  objector  on  the  part  of  the  House — 
interlocutory  remarks  by,  on  the — 

Florida  case 3, 4, 10, 13 

Louisiana  case '57 

arguments  by,  on  the  Florida  case 4, 17 

FIELD,  STEPHEN  J.,  an  Associate  Justice  of  the  Supreme  Court, 
member  of  the  Commission — 

act  of  Congress  appointing 1 

sworn  and  certificate  of  oath  filed 2, 273 

motions  made  by — 

to  adjourn... 57,277,278 

that  the  certificates  in  the  case  of  Louisiana,  and  papers  ac 
companying  the  same,  and  the  objections  thereto,  be 

printed 57 

crders  submitted  by — 

that  the  injunction  o.  secrecy  be  removed  from  the  proceed 
ings  of  the  Commission 118,279 

that  the  certificates,  with  accompanying  papers,  and  the  ob 
jections  thereto,  in  the  matter  of  the  electoral  vote  of 

the  State  of  Louisiana,  be  printed 277 

resolutions  offered  by — 

that  in  the  opinion  of  the  Commission  evidence  is  admissi 
ble  upon  the  several  matters  which  counsel  for  the  ob 
jectors  to  Certificates  Nos.  1  and  3  offered  to  prove. 
Offered  as  a  substitute  for  an  order  submitted  by  Mr. 

Commissioner  Hoar 117,  279 

that  whereas  at  the  election  held  on  the  7th  of  November, 
1376,  in  the  State  of  Oregon,  for  electors  of  President 
and  Vice-President,  W.  H.  Odell,  J.  W.  Watts,  and  John 
C.  Cartwright  received  the  highest  number  of  votes 
cast  for  electors,  but  the  said  Watts  then  holding  an 
office  of  trust  and  profit  under  the  United  States,  was 
ineligible  to  the  office  of  elector:  therefore,  Resolved, 
That,  the  said  Odell  and  Cartwright  were  the  only  per 
sons  duly  elected  at  said  election,  and  there  was  a 
failure  on  the  part  of  the  State  to  appoint  a  third 
elector.  Offered  as  a  substitute  for  a  resolution  offered 

by  Mr.  Commissioner  Edmunds 178, 282 

that  whereas  the  legislature  of  Oregon  has  made  no  provis 
ion  for  the  appointment  of  an  elector  under  the  act  of 
Congress  where  there  was  a  failure  to  make  a  choice 
on  the  day  prescribed  by  law:  therefore,  Resolved,  That 
the  attempted  election  of  a  third  elector  by  the  two 
persons  chosen  was  imperative  and  void.  Offered  as  a 
substitute  for  a  resolution  offered  by  Mr.  Commissioner 

Edmunds 178, 282 

that  evidence  is  admissible  to  show  that  prior  to  and  dur 
ing  the  election  on  the  7th  day  of  November,  1876,  in 
the  State  of  South  Carolinia,  there  were  unlawfully 
stationed  in  various  parts  of  the  State  at  or  near  the 
polling-places  detachments  of  troops  of  the  Army  of 
the  United  States,  by  whose  presence  and  interference 
qualified  voters  of  the  State  were  deprived  of  the  right 
of  suffrage,  and  a  free  choice  by  the  people  of  presi 
dential  electors  was  prevented:  Resolved,  That  evi 
dence  is  admissible  to  show  that  at  the  election  on  the 
7th  day  of  November,  1876,  in  South  Carolina,  there 
were  stationed  at  the  several  polling-places  in  the 
State  deputy  marshals  of  the  United  States  exceeding 
one  thousand  iu  number,  by  whose  unlawful  action 
and  interference,  under  orders  from  the  Department 
of  Justice,  qualified  voters  of  the  State  were  deprived 
of  the  right  of  suffrage,  and  a  free  choice  by  the  people 
of  presidential  electors  was  presented.  Offered  as  a 
substitute  for  a  resolution  offered  by  Mr.  Commissioner 
Morton 192,234 

20 


305 


Paga 


FIELD,  STEPHEN  J.— resolutions  offered  by — Continued. 

that  whereas  J.  W.  Watts,  designated  iu  Certificate  No.  1  as 
an  elector  of  the  State  of  Oregon  for  President  and 
Vice-President,  on  the  day  of  election,  namely,  the 
7th  of  November,  1876,  held  an  office  of  trust  and  profit 
under  the  United  States:  therefore,  Resolved,  That  the 
said  J.  W.  Watts  was  then  ineligible  to  the  office  of 
elector  within  the  express  terms  of  the  Constitution. 
Offered  as  a  substitute  for  a  resolution  offered  by  Mr. 

Commissioner  Edmunds 17^  282 

interlocutory  remarks  and  questions  by,  on  the — 

business  of  the  Commission ...57  72  77 

Florida  case '.3*21 

Louisiana  case '57 

arguments  by,  in  the  consultations  on  the — 

Florida  case _  g45 

Oregon  case '.'.'.'.".'.  249 

Florida,  the  case  of — 

submitted  to  the  Electoral  Commission 2 

decision  on,  by  the  Electoral  Commission . .  56  57 

certificates  and  objections  referred  to  the  Electoral  Commission 

in 287-292 

FRELLNGHUYSEN,  FREDERICK  T.,  a  Senator  from  New  Jersey, 
member  of  the  Commission — 

appointed  by  the  Senate 2, 273 

sworn  and  certificate  of  oath  filed 2*  273 

motions  made  by — 

to  adjourn 2,273,275 

that  Commissioners  Miller,  Hoar,  and  Bradley  be  the  com 
mittee  appointed  to  prepare  the  report  of  the  Commis 
sion  in  the  Louisiana  case 118,279 

order  submitted  by,  that  at  eleven  o'clock  a.  m.,  the  hour' 
designated  by  the  order  of  the  5th  instant  requiring 
an  open  session,  the  doors  be  considered  as  open,  and 
the  Commission  at  once  adjourn  the  same  for  delibera 
tion 37,275 

resolution  offered  by,  that  Theodore  R.  Barker,  S.  McGowau, 
James  W.  Harrington,  John  Isaac  Ingram.  William 
Wallace,  John  B.  Erwin,  and  Robert  Aldrich,  the  per 
sons  named  as  electors  in  Certificate  No.  2,  were  not  the 
lawful  electors  for  the  State  of  South  Carolina,  and 
that  their  votes  are  not  the  votes  provided  for  by  the 
Constitution  of  the  United  States,  and  should  not  bo 

counted 192, 234 

interlocutory  remarks  and  questions  by,  on  the — 

business  of  the  Commission 4(  181 

Louisiana  case 85, 107 

Oregon  case 1:54 

argument  by,  and  opinion  of,  in  consultation 203 


GARFIELD,  JAMES  A.,  a  Representative  from  Ohio,  member  of  the 
Commission — 

appointed  by  the  House 2,273 

sworn  and  certificate  of  oath  filed 2,273 

motions  made  by — 

to  adjourn 119, 179, 193, 274, 230, 281, 283, 285 

to  take  a  recess 119,278,280 

that  the  committee  on  rules  b»  directed  to  report  rules  to 

regulate  the  order  of  business  of  the  Commission..  ..2,273 
that  the  motion  of  Mr.  Commissioner  Abbott  be  amended  by 

striking  out  "  six"  and  inserting  "  four." 71,277 

that  Commissioners  Edmunds,  Bradley,  and  Miller  bo  the 
committee  appointed  to  prepare  the  report  of  the  Com 
mission  in  the  Louisiana  ca.se ..  118, 279 

that  counsel  in  the  case  of  Oregon  be  granted  ten  minutes 

more  in  view  of  interruptions 177 

that  the  public  session  of  the  Commission  be  closed,  and  that 

they  go  into  consultation 177 

resolutions  offered  by — 

that  the  four  persons,  to  wit,  Frederick  C.  Humphreys, 
Charles  H.  Poarce,  William  A.  Holden,  and  Thomas 
W.  Long  were  duly  appointed  electors  of  President 
and  Vice-President  for  the  State  of  Florida,  and  that 
the  votes  cast  by  the  aforesaid  four  persons  are  the 
votes  provided  for  by  the  Constitution  of  the  United 

States 56,276 

that  Mr.  Edmunds,  Mr.  Bradley,  and  Mr.  Miller  be  appointed 
a  committee  to  draft  a  report  of  the  action  of  the  Com 
mission,  as  required  bylaw 56,270 

interlocutory  remarks  and  questions  by,  on  the — 

business  of  the  Commission 56, 103, 118, 141, 1CF,  177, 181 

Florida  case   3, 12,20,53 

Louisiana  case 57, 59, 73, 76, 77,  86, 87,  95, 100 

Oregon  case 124,132,151,155,164,165,166,177 

Sout  h  Carolina  case 188 

arguments  by,  in  the  consultations  on  the — 

Florida  case .> *. 240 

Louisiana  case..  ..   242 


30(5 


ELECTORAL  COMMISSION. 


Page. 

Gorham,  George  C.,  Secretary  of  the  Senate — 
communications  from  the  two  Houses  in  joint  session  presented 

l,y '. 2,57,119,180,273,277,280,284 

Green,  Ashbel,  counsel — 
interlocutory  remarks  by,  on  the — 

Florida  case 38, 55 

Oregon  case 168 

argument  by,  en  the  Florida  case 43 

H. 

Hoadley,  George,  counsel — 
interlocutory  remarks  by,  on  the — 

Florida  case . 39 

Louisiana  case 116 

Oregon  case 141,142,149,150,151,173 

arguments  by,  on  the — 

Florida  case 40 

Oregon  case 151 

HOAR,  GEORGE  F.,  a  Representative  from  Massachusetts,  mem 
ber  of  the  Commission — 

appointed  by  the  House 2, 273 

sworn  and  certificate  of  oath  filed 2, 273 

motions  made  by — 

to  take  a  recess 57,118,179,276,279,283 

that  the  President  of  the  Commission  be  requested,  on  con 
sultation  with  Commissioners  Edmunds  and  Payne, 
to  nominate  officers  to  the  Commission 2, 273 

that  the  secretary  have  printed  for  the  use  of  the  Commis 
sion  such  laws  as  may  be  directed  by  the  President  of 
the  Commission 4, 274 

that  counsel  be  now  heard  for  two  hours  on  each  side  upon 
the  effect  of  the  matters  laid  before  the  two  Houses 
by  the  President  of  the  Senate  and  of  the  offer  of  testi 
mony  made  by  Mr.  O'Conor  ;.nd  objected  to  by  Mr. 
Evarts 20 

that  the  Commission  go  into  consultation 118 

that  counsel  be  permitted  to  offer  proof  in  the  case  of  Ore 
gon  before  the  question  of  an  extension  of  time  is 
decided 150 

that  in  arguing  the  question  of  admissibility  of  evidence, 
counsel  be  permitted  to  take,  in  addition  to  the  fifteen 
minutes  allowed  by  the  rule,  as  much  of  the  time  re 
maining  to  them  as  they  see  fit 151 

that  the  vote  on  the  question  of  the  admission  of  testimony 
in  the  case  of  Louisiana  be  taken  at  four  o'clock  p.  m. 
on  Friday,  February  16,  1877 278 

that  the  doors  be  opened 279 

that  the  doors  be  closed 279 

orders  submitted  by — 

that  no  action  be  taken  by  the  committee  referred  to  in  the 
resolution  of  Mr.  Commissioner  Edmunds  until  the 
next  meeting  of  the  Commission  for  consultation ....  4, 274 

that  the  proceedings  of  the  session  of  Wednesday,  February 
7,  1877,  as  entered  in  the  Journal,  bo  read  by  the  Sec 
retary  at  the  public  session  of  the  Commission  on  the 
following  day 33, 275 

that  the  evidence  offered  in  the  case  of  Louisiana  be  not 

received 117,278 

that  the  Commission  now  proceed  to  the  house  of  Mr.  Com 
missioner  Thurman,  there  to  go  on  with  the  case  now 
before  it 178, 282 

that  the  President  appoint  a  temporary  clerk  until  the  com 
mittee  on  rules  report 273 

that  the  proceedings  of  the  Commission,  until  otherwise  di 
rected,  be  considered  confidential,  except  as  to  the  fact 
of  organization 273 

that  counsel  be  now  heard  for  two  hours  on  each  side  upon 
the  effect  of  the  matters  laid  before  the  two  Houses 
by  the  President  of  the  Senate,  and  of  the  offer  of  testi 
mony  made  by  Mr.  O'Couor  and  objected  to  by  Mr. 
Evarts.  Submitted  asa substitute  for  an  order  of  Mr. 
Commissioner  Miller 274 

that  the  President  of  the  Commission  bo  directed  to  inspect 

the  Journal  of  each  day's  proceedings 276 

that  the  Secretary  notify  counsel  to  be  present  at  four 
o'clock  and  fifteen  minutes  p.  m.  Friday,  February  16, 
1876,  to  proceed  under  the  direction  of  the  Commis 
sion 278 

resolutions  offered  by — 

that  the  President  appoint  a  temporary  clerk  until  the  com 
mittee  on  rules  report 2 

that  the  proceedings  of  the  Commission,  until  otherwise  or 
dered,  be  considered  confidential,  except  as  to  the  fact 

of  the  organization 2 

that  Senators  Bayard  and  Frelinghuysen  be  a  committee  to 
call  atouce  on  Mr.  Commissioner  Thnrman  to  learn  if  he 
will  consent  that  the  Commission  adjourn  to  his  house 
for  the  purpose  of  receiving  his  vote  on  the  question 
relating  to  Oregon 178,282 


Page. 

HOAR,  GEORGE  Y.— Continued. 
interlocutory  remarks  and  questions  by,  on  the — 

business  of  the  Commission 71, 77, 118, 141 

Florida  case 9,19,21,37,50,53 

Louisiana  case (37, 68, 73, 75, 76, 86, 91, 96, 98, 102, 115, 118 

Oregon  case 122, 131 , 149, 150, 151, 157, 158, 175, 176 

South  Carolina  case 180, 181, 185 

arguments  by,  in  the  consultations  on  the  Florida  case 239 

Howard,  George  A.,  an  assistant  secretary  of  the  Commission — 

appointed  on  motion  of  President  Clifford 2, 273 

Howe,  Timothy  O.,  an  objector  on  the  part  of  the  Senate — 

argument  by,  on  the  Louisiana  case 68 

Humphreys,  Frederick  C.,  a  witness — 

examination  of,  in  the  Florida  case. 39, 275 

HuNTON,  EPPA,  a  Representative  from  Virginia,  member  of  the 
Commission —  * 

appointed  by  the  House 2, 273 

sworn  and  certificate  of  oath  filed 2, 273 

motions  made  by — 

to  adjourn. 178, 181,274,278,281,284 

to  take  a  recess 278 

that  the  papers  referred  to  the  Commission  in  the  case  of 

South  Carolina  be  printed 180, 284 

that  a  stenographer  be  allowed  to  attend  the  secret  sessions 

of  the  Commission 278 

resolutions  offered  by — 

that  the  electors  named  in  Certificate  No.  2,  to  wit,  Wilkin 
son  Call,  J.  E.  Yonge,  Robert  Bullock,  and  Robert 
B.  Hilton,  are  the  four  persons  who  were  duly  ap 
pointed  electors  by  the  State  of  Florida  on  the  7th 
day  of  November,  1876,  and  that  their  votes  as  cer 
tified  in  such  certificate  are  the  votes  provided  for 
by  the  Constitution  of  the  United  States.  Offered 
as  a  substitute  for  the  resolution  of  Mr.  Commissioner 

Edmunds 56,276 

that  evidence  be  received  to  prove  that  the  votes  cast  and 
given  at  said  election  on  the  7th  of  November  last 
for  the  election  of  electors  as  shown  by  the  returns 
made  by  the  commissioners  of  elections  from  the  sev 
eral  polls  or  voting-places  in  said  State  have  never 
been  compiled  or  canvassed,  and  that  the  said  return 
ing  board  never  even  pretended  to  compile  or  canvass 
the  returns  made  by  said  commissioners  of  election, 
but  that  the  said  returning  board  only  pretended  to 
canvass  the  returns  made  by  said  supervisors.  Offered 
as  a  substitute  for  an  order  submitted  by  Mr.  Commis 
sioner  Hoar 1 17, 279 

that  the  votes  purporting  to  be  the  electoral  votes  of  the 
State  of  Louisiana  be  not  counted.  Offered  as  an 
amendment  to  a  resolution  offered  by  Mr.  Commis 
sioner  Morton 118, 279 

that  the  resolution  of  Mr.  Commissioner  Morton  be  amended 

by  striking  out  the  name  of  John  W.  Watts 178,  282 

interlocutory  remarks  and  questions  by,  on  the — 

business  of  the  Commission 141, 181 

Florida  case 21 

Louisiana  case 61,92,96 

South  Carolina  case 180, 187, 188 

arguments  by,  in  the  consultations  on  the — 

Florida  case 222 

Louisiana  case 2'J5 

Oregon  case 230 

South  Carolina  case 231 

Hurd,  Frank  H.,  an  objector  on  the  part  of  the  House — 

interlocutory  remarks  by,  on  the  South  Carolina  case 180 

argument  by,  on  the  South  Carolina  case 181 

Hurlburt,  Stephen  A.,  an  objector  on  the  part  of  the  House — 

argument  by,  on  the  Louisiana  case 65 

J. 

Jenks,  George  A.,  an  objector  on  the  part  of  the  House — 

interlocutory  remarks  by,  on  the  Louisiana  case 61 

arguments  by,  on  the — 

Louisiana  case 61 

Oregon  case 126 

Jones,  Charles  W.,  an  objector  on  the  part  of  the  Senate 3 

Journal  of  the  Commission  read  and  approved 2,4, 

17,  29,  37,  38,  56,  57,  77, 103, 117, 119, 160, 178. 179, 
193, 273, 274, 275, 276, 277, 278, 280, 281, 2S3, 284,  285 

K. 

Kasson,  John  A.,  an  objector  on  the  part  of  the  House — 

interlocutory  remarks  by,  on  the  Florida  case 4, 6, 10, 1G 

argument  by,  on  the  Florida  case 10 

Kelly,  James  K.,  an  objector  on  the  part  of  the  Senate — 

interlocutory  remarks  by,  on  the  Oregon  case —  ..   122 

argument  by,  on  the  Oregon  case 122 


INDEX. 


307 


Page. 
KERNAN,  FRANCIS,  a  Senator  from  New  York,  member  of  the 

Commission — 
appointed  by  the  Senate  to  fill  the  vacancy  in  the  Commission 

created  by  the  inability  of  Hon.  Allen  G.  Thurman.. .  179 
sworn  and  certificate  of  oath  filed 180 

L. 

Lawrence,  William,  an  objector  on  the  part  of  the  House — 
interlocutory  remarks  by,  on  the — 

Oregon  case 124,129,153,157 

South  Carolina  case 180 

arguments  by,  on  the — 

Oregon  case 141 

South  Carolina  case 185 

Louisiana,  the  case  of — 

submitted  to  the  Electoral  Commission 57 

decision  on,  by  the  Electoral  Commission 118, 119 

certificates  and  objections  referred  to  the  Electoral  Commis 
sion  in ». 292-295 

M. 

Matthews,  Stanley,  counsel — 
interlocutory  remarks  by,  on  the — 

Louisiana  case 108 

Oregon  case 151, 153, 157 

South  Carolina  case 181, 188 

arguments  by,  on  the — 

Florida  case 26 

Oregon  case 160 

McCrary,  George  W.,  an  objector  on  the  part  of  the  House — 

argument  by,  on  the  Florida  case 14 

McDonald,  Joseph  E.,  an  objector  on  the  part  of  the  Senate — 

interlocutory  remarks  by,  on  the  Louisiana  case 57,58 

argument  by,  on  the  Louisiana  case 58 

McGrew,  J.  M.,  sixth  auditor  of  the  Treasury,  a  witness — 

examination  of,  in  the  Oregon  case 168, 169, 281 

McKenney,  James  H.,  Secretary  of  the  Commission — 

appointed,  on  motion  of  President  Clifford 2, 273 

Mervick,  Richard  T.,  counsel — 
interlocutory  remarks  by,  on  the — 

Florida  case 17,25,26,37,38,39,40 

Louisiana  case 92, 116, 117 

Oregon  case 124,144,150,165,166 

arguments  by,  on  the — 

Florida  case 22, 52 

Oregon  case 173 

MILLER,  SAMUEL  F.,  an  Associate  Justice  of  the  Supreme  Court, 
member  of  the  Commission — 

act  of  Congress  appointing 1 

sworn  and  certificate  of  oath  filed 2,273 

motions  made  by — 

to  adjourn 38, 275 

to  take  a  recess 10, 118, 279, 283 

that  the  objections  to  certificates  in  the  Florida  case  be  heard 
as  one  objection  to  each  set  of  electors,  and  be  argued 

together 4 

that  the  objectors  to  the  second  certificate  in  the  Florida 
case  have  until  three  o'clock  to  present  their  state 
ment 10,274 

that  counsel  be  allowed  two  hours  on  each  side  to  discuss  the 
question  whether  any  evidence  will  be  considered  by  the 
Commission  that  was  not  submitted  to  the  two  Houses 
by  the  President  of  the  Senate  ;  and,  if  so,  what  evi 
dence  can  properly  be  considered;  and,  also,  the  ques 
tion,  what  is  the  evidence  now  before  the  Commis 
sion 20 

that  Commissioners  Strong,  Freliughuysen,  and  Bradley  be 
a  committee  to  draught  a  report,  as  required  by  law,  of 
the  action  of  the  Commission  in  the  Louisiana  case.  118, 279 
that  a  further  reading  of  the  certificates  in  the  case  of  South 

Carolina  be  dispensed  with 284 

orders  submitted  by — 

that  no  evidence  will  be  received  or  considered  by  the  Com 
mission  which  was  not  submitted  to  the  joint  conven 
tion  of  the  two  Houses  by  the  President  of  the  Senate 
with  the  different  certificates,  except  such  as  relates 
to  the  eligibility  of  F.  C.  Humphreys,  one  of  the  elect 
ors 37,275 

that  the  decision  and  report  submitted  by  the  committee  ap 
pointed  to  prepare  it,  be  adopted  as  the  decision  of  the 
Commission  on  the  matters  submitted  to  it  touching 

the  electoral  votes  of  the  State  of  Louisiana 118,279 

that  the  President  inform  the  Senate  by  letter  that  the  Com 
mission  has  considered  and  decided  upon  the  matters 
submitted  to  it,  under  the  act  of  Congress  concerning 
the  same,  touching  the  electoral  votes  from  the  State 
of  Louisiana,  and  transmit  the  same 119,280 


MILLER,  SAMUEL  F.— orders  submitted  by—  Continued. 

that  the  President  inform  the  House  of  Representatives  by 
letter  that  the  Commission  has  considered  and  decided 
upon  the  matters  submitted  to  it,  under  the  act  of  Con 
gress  concerning  the  same,  touching  the  electoral  votes 
from  the  State  of  Louisiana,  and  has  transmitted  said 
decision  to  the  President  of  the  Senate,  and  transmit 
the  same 119, 280 

that  the  decision  and  report  submitted  by  the  committee  ap 
pointed  to  prepare  it,  be  adopted  as  the  decision  of  the 
Commission  on  the  matters  submitted  to  it  touching 
the  electoral  vote  of  the  State  of  South  Carolina.  .192,285 

that  the  President  inform  the  Senate  by  letter  that  the  Com 
mission  has  considered  and  decided  upon  the  matters 
submitted  to  it,  under  the  act  of  Congress  concerning 
the  same,  touching  the  electoral  votes  from  the  State 
of  South  Carolina,  and  transmit  the  same 192, 285 

that  the  President  inform  the  House  of  Representatives  by 
letter  that  the  Commission  has  considered  and  decided 
upon  the  matters  submitted  to  it,  under  the  act  of 
Congress  concerning  the  same,  touching  the  electoral 
votes  from  the  State  of  South  Carolina,  and  has  trans 
mitted  said  decision  to  the  President  of  the  Senate.  193, 285 

that  the  injunction  of  secrecy  imposed  on  the  acts  and  pro 
ceedings  of  the  Commission  be  removed 193, 285 

that  450  copies  of  the  Record  (after  all  the  proceedings,  in 
cluding  the  arguments  of  the  Commissioners,  shall  have 
been  published)  shall  be  bound  with  an  index,  under 
the  care  of  the  Secretary  and  his  assistants,  and  dis 
tributed  equally  among  the  members  of  the  Commis 
sion 193,285 

that  the  objections  to  certificates  in  the  Florida  case  be  heard 
as  one  objection  to  each  set  of  electors,  and  be  argued 
together 274 

that  counsel  be  allowed  two  hours  on  each  side  to  discuss 
the  question  whether  any  evidence  will  be  considered 
by  the  Commission  that  was  not  submitted  to  the  two 
Houses  by  the  President  of  the  Senate,  and  if  so,  what 
evidence  can  properly  be  considered ;  and  also  the  ques 
tion,  what  is  the  evidence  now  before  the  Commission.  274 
interlocutory  remarks  and  questions  by,  on  the — 

business  of  the  Commission 10, 57, 58, 77, 118, 166 

Florida  case 2, 10, 17, 19, 20, 21,  39, 40,  53 

Louisiana  case 85,  87, 90 

Oregon  case 119, 126, 151, 154, 157, 165, 166, 176 

South  Carolina  case 181, 185 

arguments  by,  in  the  consultations  on  the — 

Florida  case 255 

Oregon  case 258 

Mitchell,  John  H.,  an  objector  on  the  part  of  the  Senate — 

interlocutory  remarks  by,  on  the  Oregon  case 122, 125, 126, 128 

argument  by,  on  the  Oregon  case 130 

Morse,  Alexander  Porter,  counsel 122 

MORTON,  OLIVER  P.,  a  Senator  from  Indiana,  member  of  the 
Commission — 

appointed  by  the  Senate 2, 273 

sworn  and  certificate  of  oath  filed 2,273 

motions  made  by — 

to  adjourn 37, 57, 275, 277 

that  the  motion  of  Mr.  Commissioner  Hoar  be  amended  so  as 
to  include  the  printing  of  the  election  laws  of  the 
the  States  of  Florida,  Louisiana,  Oregon,  and  South 
Carolina 4, 274 

that  the  doors  be  closed 56 

that  a  committee  of  three  members  of  the  Commission  bo 
appointed  to  prepare  the  report  in  the  Louisiana  case, 
and  that  an  intermission  be  taken  of  one  hour  for  that 
purpose 118, 279 

that  the  motion  of  Mr.  Commissioner  Edmunds  bo  divided..  281 
orders  submitted  by — 

that  the  injunction  of  secrecy  imposed  on  the  acts  and  pro 
ceedings  of  the  Commission  be  removed 179, 283 

that  the  time  heretofore  allowed  for  the  filing  of  opinions  by 
members  of  the  Commission  be  extended  until  the 
close  of  the  month  of  March 193, 285 

that  all  orders  and  substitutes  acted  on  by  the  Commission 

in  deliberation  Friday,  February  16,  1877,  be  read 279 

resolutions  offered  by — 

that  the  persons  named  as  electors  in  Certificate  No.  1  were 
the  lawful  electors  of  the  State  of  Louisiana,  and  that 
their  votes  are  the  votes  provided  by  the  Constitution 
of  the  United  States,  and  should  be  counted  for  Presi 
dent  and  Vice-President 118,279 

that  W.  II.  Odell,  John  C.  Cartwright,  and  John  W.  Watts, 
the  persons  named  as  electors  in  Certificate  No.  1,  were 
the  lawful  electors  of  the  State  of  Oregon,  and  that 
their  votes  are  the  votes  provided  for  by  the  Constitu 
tion  of  the  United  States,  and  should  be  counted  for 
President  and  Vice-President  of  the  United  States.  178, 282 


308 


ELECTORAL  COMMISSION. 


Page. 
MORTON,  OLIVER  P. — resolutions  offered  by — Continued. 

that  it  is  not  competent  for  the  two  Houses,  assembled  for 
the  purpose  of  counting  the  votes  for  President  and 
Vice-President,  to  inquire  by  evidence  whether  a  State 
regularly  represented  in  the  two  Houses  of  Congress, 
and  recognized  as  a  State  of  the  United  States  by  the 
other  departments  of  the  Government,  has  a  govern 
ment  republican  in  form.  Resolved,  That  while  the 
existence  of  public  disturbance  and  anarchy  in  any 
State  to  such  an  extent  as  to  make  it  impossible  for 
the  State  to  exercise  its  right  to  appoint  electors  of 
President  and  Vice-Presideut,  and  to  express  its  will 
in  that  behalf,  is  sufficient  cause  for  rejecting  any 
electoral  votes  purporting  to  be  the  votes  of  electors 
appointed  thereby,  yet,  that  when  a  State  is  regularly 
represented  as  a  State  in  the  Congress  of  the  United 
States,  and  is  recognized  as  a  State  by  the  other  de 
partments  of  the  Government,  and  has  a  government 
republican  iu  form,  and  does  appoint  electors  in  the 
manner  prescribed  by  the  Legislature  thereof,  evi 
dence  cannot  be  received  by  the  two  Houses  of  Con 
gress  assembled  to  count  the  votes  for  President  and 
Vice-President  as  aforesaid  to  show  that  disturbances 
existed  at  the  time  of  election  which  may  have  inter 
fered,  to  a  greater  or  less  extent,  with  the  freedom  of 
election  at  the  polls  iu  said  State.  Resolved,  That  it 
is  not  competent  for  the  two  Houses  of  Congress  when 
assembled  to  count  the  vote'*  for  President  and  Vice- 
President  by  taking  evidence  to  inquire  into  the  regu 
larity  of  the  action  of  the  President  of  the  United 
States  in  sending  a  military  force  into  any  State  for 
the  preservation  of  order  or  the  suppression  of  insur 
rection  and  domestic  violence  in  order  by  such  proof 
to  lay  a  ground  for  rejecting  the  electoral  vote  of  said 
State.  Resolved,  That  in  view  of  the  propositions  con 
tained  in  the  three  foregoing  resolutions  the  evidence 
offered  to  show  that  tho  State  of  South  Carolina  at  the 
late  election  did  not  have  a  republican  form  of  gov 
ernment,  and  the  evidence  offered  on  the  subject  of 
disorder  and  violence  and  tho  presence  of  troops  in 
said  State  during  said  election,  is  not  competent,  but 
that  notwithstanding  the  offer  of  such  evidence  the 
electoral  votes  of  South  Carolina  ought  to  be  received 
and  counted  if  not  objectionable  on  other  grounds. 
Resolved,  That  the  other  objections  to  Certificate  No. 

1  show  no  valid  cause  for  rejecting  the  same . '. 192, 284 

that  C.  C.  Bowen,  .1.  Winsmith,  Thomas  B.  Johnston,  Timo 
thy  Hurley,  W.  B.  Na^h,  Wilson  Cook,  and  W.  F. 
Myers,  the  persons  named  as  electors  in  Certilicate  No. 
1,  were  the  lawful  electors  for  the  State  of  South 
Carolina,  and  that  their  votes  are  the  votes  provided 
for  by  the  Constitution  of  the  United  States,  and 
should  be  counted  for  President  and  Vice-President  of 

the  United  States 192,234 

that  the  thanks  of  this  Commission  are  due  to  Commissioner 
Clifford  for  the  ability,  impartiality,  and   urbanity 
with  which  he  has  presided  over  its  deliberations.  193, 285 
interlocutory  remarks  and  questions  by,  on  the— 

business  of  the  Commission 5G,  57, 118, 150 

Florida  case 8 

Louisiana  case 59,  GO,  86, 89, 90, 91, 92, 95, 97, 107 

Oregon  case 129, 164, 165 

arguments  by,  in  the  consultations  on  the — 

Florida  case 195 

Louisiana  case 197 

Oregon  case 198 

South  Carolina  case 200 

Murphy,  D.  F.,  Stenographer  of  the  Commission — 
appointed,  on  motion  of  President  Clifford 2, 273 

O. 

O'Conor,  Charles,  counsel — 

interlocutory  remarks  by,  on  the  Florida  case 17,21,30,37 

arguments  by,  on  the  Florida  case 18, 33 

Officers  of  the  Electoral  Commission,  selection  of  the 2,273 

Oregon,  the  case  of — 

submitted  to  the  Electoral  Commission 119 

decision  on,  by  the  Electoral  Commission 178, 179 

certificates  and  objections  referred  to  the  Electoral  Commission 
in 295,293 

P. 

PAYNE,  HENRY  B.,  a  Representative  from  Ohio,  member  of  the 
Commission — 

appointed  by  the  House 2,273 

sworn  and  certificate'  of  oath  filed 2,273 


Page. 

PAYNE,  HENRY  B.— Continued. 
motions  made  by — 

to  adjourn 55,77,193,274,275,278,285 

that  the  three  certificates  in  the  case  of  Florida  be  printed, 

and  tho  objections  thereto 2 

that  the  time  consumed  by  interruptions  of  the  Commission 

be  not  counted 92 

that  the  time  be  extended  to  counsel  on  each  side- for  one 

hour  on  the  general  question 118, 279 

to  strike  out  the  Avord  "not"  in  an  order  submitted  by  Mr. 

Commissioner  Hoar 118,279 

order  submitted  by,  that  the  certificates  purporting  to  be  the 
electoral  vote  of  the  State  of  Florida,  and  accompany 
ing  papers,  together  with  the  objections  thereto,  be 

printed 274 

interlocutory  remarks  and  questions  by,  on  the — 

business  of  the  Commission 77, 86, 118, 141 

Florida  case 2 

Louisiana  case 71,85,98 

South  Carolina  case 180 

E. 

Eancy,  George  P.,  a  witness — 

examination  of,  in  the  Florida  case 38,275 

Eeardon,  William  H.,  Marshal  of  the  Commission — 

appointed,  on  motion  of  President  Clifford 2, 273 

Eules  of  the  Electoral  Commission  considered,  amended,  and 

adopted 2,273 

S. 

Sargent,  Aaron  A.,  an  objector  on  the  part  of  the  Senate — 

interlocutory  remarks  by,  on  the — 

Florida  case 3 

Oregon  case 122 

Seely,  Albert  S.,  a  deputy  marshal  of  the  Commission — 

appointed,  on  motion  of  President  Clifford 2, 273 

Senate  Chamber,  the,  use  of,  tendered  to  the  Electoral  Commis 
sion 110,278 

occupied  by  the  Electoral  Commission 151,281 

Sessions  of  the  Electoral  Commission,  on  the — 

Florida  case — 

Wednesday,  January  31,  1877 1 

Thursday,  Febrbary  1,  1877 2 

Friday,  February  2,  1877 4 

Saturday,  February  3,  1877 17 

Monday,  February  5,  1377 29 

Tuesday,  February  G,  1877 37 

Wednesday,  February  7,  1877 37 

Thursday,  February  8,  1877 38 

Friday,  February  9,  1877 56 

Saturday,  February  10,  1877 57 

Louisiana  case — 

Monday,  February  12,  1877 57 

Tuesday,  February  13,  1877 57 

Wednesday,  February  14,  1877 77 

Thursday,  February  15,  1877 103 

Friday,  February  16,  1877 117 

Saturday,  February  17,  1877 119 

Monday,  February  19,  1877 119 

Tuesday,  February  20 119 

Oregon  case — 

Wednesday,  February  21,  1877 119 

Thursday,  February  22, 1877 160 

Friday,  February  23,  1877 178 

Saturday,  February  24,  1877 179 

South  Carolina  case — 

Monday,  February  2G,  1877 179 

Tuesday,  February  27,  1877 181 

Friday,  March  2,  1877 193 

Shellabarger,  Samuel,  counsel — 

interlocutory  remarks  by,  on  the — 

Florida  case 10 

Louisiana  case 91 

South  Carolina  case 190 

arguments  by,  on  the — 

Florida  case 46 

Louisiana  case 97 

Sherman,  John,  an  objector  on  the  part  of  the  Senate 3 

South  Carolina,  the  case  of — 

submitted  to  tho  Electoral  Commission 180 

decision  of,  by  the  Electoral  Commission 192 

certificates  and  objections  referred  to  the  Electoral  Commis 
sion  in  293,299 

Stoughtou,  E.  W.,  counsel — 

interlocutory  remarks  by,  on  the  Florida  case 39  40 

arguments  by,  on  the — 

Florida  case 28 

Louisiana  case...  .     93 


INDEX. 


Page. 

STKONG,  WILLIAM,  an  Associate  Justice  of  the  Supreme  Court, 
member  of  the  Commission. 

act  of  Congress  appointing 1 

sworn  and  certificate  of  oath  tiled 2,273 

motions  made  by — 

to  adjourn 4,29,119,274,280 

to  take  a  recess 72,178,277,282,283 

that  general  debate  on  the  question  pending  be  closed  on  or 

before  six  o'clock  p.  m 56 

that  counsel  be  allowed  two  hours  on  a  side  for  the  argu 
ment  of  the  question  of  the  adinissibility  of  the  evi 
dence  offered  and  objections  thereto 84, 277 

that  the  evidence  specified  in  the  first  offer  of  the  objectors 
to  Certificate  No.  1  in  the  case  of  Oregon  be  now  re 
ceived,  subject  to  its  legal  effect,  and  aiiy  evidence  on 
the  same  point  thut  may  be  offered  on  the  other  side, 

upon  the  same  condition 165 

that  the  vote  be  taken  on  the  question  pending  in  the  case 
of  South  Carolina  at  five  o'clock  and  twenty  minutes 

p.  m 192,284 

orders  submitted  by — 

that  the  members  of  the  Commission  be  at  liberty  to  reduce 
to  writing  the  remarks  made  by  them  during  the  con 
sultations  of  the  Commission,  and  cause  them  to  be  pub 
lished  in  the  printed  proceedings  on  or  before  the  15th 

day  of  March  next 193, 285 

that  on  the  question  of  the  admission  of  evidence  the  argu 
ment  be  opened  by  two  and  concluded  by  one  counsel 

ou  each  side " 274 

that  debate  on  the  question  pending  in  the  Florida  case  be 
closed  on  or  before  six  o'clock  p.  m.  Friday,  February 

9,  1877 .....275 

that  the  evidence  described  in  offer  No.  1  be  now  received, 
subject  to  the  opinion  of  the  Commission  as  to  its  legal 
effect;  and  that  evidence  in  rebuttal  or  in  explanation 
thereof  be  also  now  received,  subject  also  to  a  consider 
ation  of  its  legal  effect 281 

interlocutory  remarks  and  questions  by,  on  the — 

business  of  the  Commission 77, 192 

Florida  case.... 4,10,19,25,40 

Louisiana  case 68,80,81,84,86,99,114,118 

Oregon  case 128, 141, 165 

arguments  by,  in  the  consultations  on  the — 

Florida  case 251 

Oregon  case 254 

Supreme  Court  Eoom  at  the  Capitol,  the  Electoral  Commission 

met  in  the 1,273 

T. 

Taliaferro,  J.  C.,  a  deputy  marshal  of  the  Commission- 
appointed,  on  motion  of  President  Clifford 2, 273 

Thompson,  Charles  P.,  an  objector  on  the  part  of  the  House 3 

THURMAN,  ALLEN  G.,  a  Senator  from  Ohio,  member  of  the  Com 
mission — 

appointed  by  the  Senate 2,273 

sworn  and  certificate  of  oath  filed 2, 273 

motions  made  by — 

to  adjourn.... 37,103,274,277,278 

to  take  a  recess 56,110,166,177,275,278,281 

that  the  motion  of  Mr.  Commissioner  Strong  be  amended  by 

striking  out  "  two  "  and  inserting  "  three  " 86, 277 


Page. 
TIIUUMAN,  ALLEN  G. — Continued. 

order  submitted  by,  that  the  Secretary  of  the  Commission  is  di 
rected  to  furnish  immediately  to  counsel,  on  both  sides, 
copies  of  orders  made  to-day,  and  to  notify  them  that 
the  Commission  will  be  ready  at  eleven  a.  m.  to-morrow 

to  proceed  with  the  case  now  before  them 38, 275 

resolutions  offered  by — 

that  a  committee  of  two  Justices,  two  Senators,  and  two 
Representatives  be  appointed  to  consider  and  propose 
such  rules  of  proceeding  and  officers  and  employ6s  as 
may  be  proper  for  the  Commission,  the  committee  to 

be  appointed  by  the  President 2,273 

thatF.  C.  Humphreys  was  not  a  United  States  shipping  com 
missioner  on  the  7th  day  of  November,  1876 56, 275 

that  inasmuch  as  the  votes  of  the  people  of  Louisiana  for 
electors  of  President  and  Vice-President  in  November 
last  have  never  been  legally  canvassed  and  declared, 
therefore  the  votes  purporting  to  be  votes  of  electors 
of  that  State  for  President  and  Vice-President  ought 
not  to  be  counted,  and  ao  electors  of  President  and 
Vice-President  can  be  regarded  as  chosen  in  that  State. 
Offered  as  a  substitute  for  a  resolution  offered  by  Mr. 

Commissioner  Morton 11^,279 

interlocutory  remarks  and  questions  by,  on  the — 

business  of  the  Commission 4, 72, 141, 149,  16(>,  177 

Florida  case 3, 14, 15, 17, 19,21, 40,  47, 54, 5.r>,  103, 

Louisiana  case 59, 60, 63, 64, 75, 

85,86,89,91,92, 95,99, 100, 105, 106, 108, 109, 110, 113, 115, 118 

Oregon  case 126,144,150,153,164,165,176 

letter  from,  announcing  his  inability  to  attend  the  sessions  of 
the  Commission,  and  asking  that  the  vacancy  caused 

by  his  absence  may  be  filled  as  provided  by  law 179 

arguments  by,  in  the  consultations  on  the — 

Florida  case 200 

Louisiana  case 201 

Trumbull,  Lyman,  counsel — 
interlocutory  remarks  by,  on  the  Louisiana  case. .57, 61,  80, 93, 117 

argument  by,  on  the  Louisiana  case 80, 87 

Tucker,  J.  Randolph,  an  objector  on  the  part  of  the  House — 

interlocutory  remarks  by,  on  the  Florida  case 4 

argument  by,  on  the  Florida  case 8 

Tyner,  James  N.,  Postmaster-General,  a  witness — 
examination  of,  in  the  Oregon  case 166-168, 281 

W. 

Watts,  John  W.,  a  witness — 
examination  of,  in  the  Oregon  case 268,281 

Whitney,  William  C.,  counsel 17 

Witnesses,  examination  of — 

Humphreys,  F.  C.,  (in  the  Florida  case,) 39, 275 

McGrew,  J.  N.,  (in  the  Oregon  case,) 168, 169, 281 

Raney,  George  P.,  (in  the  Florida  case,) 38, 275 

Tyner,  James  N.,  (in  the  Oregon  case) 166-168, 231 

Watts,  John  W.,  (in  the  Oregon  case) 168,281 

Yonge,  James  E.,  (in  the  Florida  case) 38, 39, 275 

Woodburn,  William,  an  objector  on  the  part  of  the  House 3 

Y. 

Yeas  and  nays 37,38,56,57,103,117, 

118, 178, 179, 192, 193, 275, 276, 277, 278, 279, 282, 283, 284,  285 
Yonge,  James  E.,  a  witness- 
examination  of,  in  the  Florida  case 38, 39,27  ,> 


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